THE Albert Reynolds libel case against the Sunday Times is not over and may run into next year. At present the two sides are arguing, before Mr Justice French but not the jury, over costs.
Although the jury found Mr Reynolds had been libelled by the Sunday Times's allegation that he had lied to the Dail, by awarding him zero damages (increased by the judge yesterday to the nominal sum of one penny) they ensured he would pay the costs of the trial, estimated at £1 million sterling.
This was based on the fact that the Sunday Times had already lodged with the court the sum of £5,005, to protect itself against an award of up to this amount. If a plaintiff is awarded less than the sum paid in, he or she is liable for all the costs of the trial, on the grounds that the case would not have been necessary if the plaintiff had accepted the amount lodged.
If a plaintiff loses an action, he or she is liable for all the costs, on the grounds that the statement complained of was justified. Mr Reynolds did not lose the action, as the jury found he had been libelled.
However, the Sunday Times argued yesterday that, by awarding him "zero" damages, jury members had found the allegation so nearly true that they felt no damages were justified. Therefore Mr Reynolds should pay all the costs.
Lord Gareth Williams and Mr Andrew Caldecott, for Mr Reynolds, argued that Mr Reynolds was clearly vindicated by the jury's answer to question one, when they stated that the allegations complained of were not true. This vindication had required legal action, and the two sides should pay their own costs up to the point of the paying in of the £5,005.
There will be a ruling on this today, but it will not end there. If Mr Justice French rules against the Sunday Times on this question, its legal team has said it will then argue justification on the basis of qualified privilege.
This argument, which has rarely been made before, concerns a newspaper's right to be covered by parliamentary privilege when reporting and, in this instance, commenting on, what a politician says in parliament.
The jury's answer to question five - that the Sunday Times accurately reported Mr Dick Spring's stated reasons for leaving government - was put with a view to this argument taking place.
Yesterday, Mr Caldecott, who will argue this case for Mr Reynolds, indicated he will not be available to do so at the beginning of next week. Lord Williams, who will not be involved in this argument, asked to be excused.
Mr James Price QC, for the Sunday Times, also asked to be excused. Lord Anthony Lester QC will argue this case for the Sunday Times and will be available later this week.
However, this argument, if it goes ahead, is likely to take at least two days, and could take up to a week, according to lawyers involved. Given that Mr Caldecott is not available on Monday, and Mr Justice French also indicated other commitments next week, it is unlikely to be concluded before the end of the month.
Then there is the question of an appeal. Mr Reynolds said yesterday his lawyers are examining possible grounds of appeal. These could include the length of time the trial took (almost six weeks instead of the expected three); the number of interruptions; the length of time the jury was out; the number of times the jury sought guidance and, in particular, the judge's direction to the jury.
An appeal must be lodged within 28 days. It could then take up to a year for it to be heard. Mr Reynolds's team wants an appeal to result in a retrial. If it gets what it wants, the case could still be going on in 1998.