Politician’s case against RTÉ is unstateable and should be struck out, court told

RTÉ has asked the High Court to strike out a damages claim brought against it by Labour politician Joe Costello on the grounds it is bound to fail.

The veteran politician’s action which is against the national broadcaster as well as the State, arises out of RTÉ’s defence of a defamation action brought against it by Sinn Féin activist Nicky Kehoe over comments made on the Saturday with Claire Byrne radio broadcast in October 2015.

In 2018 Mr Kehoe, who claimed he was defamed in the broadcast, was awarded €3,500 against RTÉ.

A High Court jury made an overall award of €10,000 for the defamatory comment made by Mr Costello on the show.

In its defence against Mr Kehoe’s action RTÉ pleaded, under provisions of the 1961 Civil Liability Act, that Mr Costello was a concurrent wrongdoer’ and was responsible for the defamation.

The jury found the broadcast was defamatory because it meant Mr Kehoe was not a fit person to be involved in the democratic process.

The jury also found the national broadcaster was 35 per cent liable for the defamation while Mr Costello, a former TD and Minister was 65 per cent at fault.

However, as Mr Kehoe did not sue Mr Costello, a current Dublin City Councillor, there was no judgment against him.

Mr Costello has sued both RTÉ, who he claims never gave him any proper notice of the defamation proceedings, and Ireland and the Attorney General seeking damages.

Constitutional justice

He also seeks declarations that the he was denied constitutional justice, fair procedures as blame was apportioned to him for a defamation without him being given the chance to defend himself.

He also seeks declarations that a section of the 1961 Civil Liability Act is unconstitutional, and in breach of the European Convention of Human Rights.

He claims that in its defence RTÉ breached its obligations to him under the 2009 Broadcasting Act to be fair, objective, impartial, particularly in matters of public controversy.

He also claims that as an invited guest on RTÉ, it agreed warranted and represented to Mr Costello that he would not be exposed to opprobrium that would damage his political career and reputation.

Both RTÉ and the state defendants deny all of the claims.

In a pretrial motion before Mr Justice Tony O’Connor RTÉ, represented by Cian Ferreter and Mark Dunne SC, want the court to strike out the proceedings against it.

Mr Ferriter told the court that Mr Costello’s action against RTÉ is unstateable, vague, is bound to fail and should be struck out by the court.

Counsel said that Mr Costello is seeking damages from RTÉ after RTÉ was sued over comments on one of its programme made by Mr Costello.

Mr Costello, counsel added, did not have to pay a cent to Mr Kehoe. RTÉ, counsel said, was fully entitled to run the defence it did.

Any issue over the constitutionality of the 1961 Act was not a matter for RTÉ, counsel added.

Contractual obligations

Any suggestion by Mr Costello, that RTÉ had the type of contractual obligations as claimed are rejected.

Mr Costello, he said, was put forward as a guest on the programme by the then FG/Labour government, following a request by RTÉ for a government representative.

It was not the case that Mr Costello was personally asked on the show, and the 2009 Broadcasting Act deals with issues concerning broadcasts, and not how legal proceedings are defended, counsel said.

In reply, Conor Power SC, instructed by solicitor Padraig Ferry for Mr Costello, accepted that the case may be “novel” but rejected any suggestion the case has no hope of success and was bound to fail.

Counsel said that while Mr Costello did not have to pay anything in terms of an award to Mr Kehoe or any legal costs to the parties, his reputation had been adversely impacted by the jury’s finding.

Counsel said he had not been given the opportunity by RTÉ to be involved in the case, nor to make any contribution to the 2018 defamation action, which received a lot of media attention.

Had he been called as a witness or been involved counsel said Mr Costello, who in fact never named Mr Kehoe in the broadcast, would have had a contribution to make.

Mr Costello, counsel added, had been invited on the programme by RTÉ, and had been doing radio interviews for some 50 years, and certain issues flow from that.

His client has not been invited back on RTÉ since the broadcast at the centre of the defamation action, counsel said.

RTÉ, counsel said, had a clear financial objective in running the defence it did in the defamation action, as it ultimately meant that it would defer or reduce any award made against it.

The hearing of the pretrial motion continues next week.