The judge in the libel case taken by Mr Albert Reynolds against the Sunday Times misrepresented the case to the jury, and key matters on documents and chronology were completely confused, the Court of Appeal was told.
A major problem in the summing up of Lord Justice French was that he consistently confused the two Attorneys General, Mr Harry Whelehan and Mr Eoin Fitzsimons, and the reports they put in around the time of Mr Reynolds's statements to the Dail in November 1994 over the Brendan Smyth affair, Mr Andrew Caldecott QC, for Mr Reynolds, said.
The judge's summing up of the reports of the Attorneys General "put Mr Reynolds's case as to what happened in a complete tangle."
He said the judge, Lord Justice French, in November 1996 had to give the jury guidance on the parties' case on the meaning of the words in the article, the defence of justification, Mr Reynolds's case on rebuttal, and his allegation of malice.
The judge dealt with the meaning of the words but the curious feature was that he did not actually go through the article, counsel said.
There was no analysis. If there had been there would have been a vast distillation and the whole summary would have been shorter.
A day at the outside was necessary for it instead of the two and a half that it took.
The summary was a recital of the evidence and the order in which it was given was the vehicle the judge chose to adopt. Out of that an awful lot of problems came.
Mr Caldecott said that the judge's legal analysis of malice was wholly divorced from the facts of the case. It should have been given to the jury in a convenient, understandable package.
In the trial, the newspaper withdrew the defence of fair comment. The journalists' evidence rem ained relevant but only in relation to the allegation by Mr Reynolds of malice, to defeat the newspaper's defence that it had qualified privilege.
However, in spite of this the judge referred to fair comment.
The judge's misdirections fundamentally confused the defence of justification, which remained, and the defence of fair comment, which had been withdrawn, counsel stated.
Many of the grounds referred to by Mr Caldecott yesterday related to the issue of whether Mr Reynolds lied to the Dail on Tuesday, November 15th, as the newspaper had alleged in the article.
However, an issue identified by the judge was whether Mr Reynolds knew on Monday, November 14th, 1994, that there had been an extradition case, the Duggan case, a couple of years before the Smyth case, which might have been relevant to the Smyth case.
Lord Chief Justice Bingham asked Mr Caldecott if his complaint was that the judge did not define the issues and relate them to the evidence.
Counsel replied that that was so, and the judge also misrepresented Mr Reynolds's case.
"A major problem in the judge's summary is that he consistently confuses two Attorneys General and the reports they put in," Mr Caldecott said. Mr Fitzsimons had been appointed on the previous Friday and took over from Mr Whelehan.
The jury was also asked to look at a video of a select committee which investigated the affair. Mr Caldecott said it was difficult for a jury to absorb as there was a lot of material.
"The problem was the judge simply read it all out (in his summary) without any attempt to link it into the real controversy," he said.
The judge's summary was an unstructured narrative of what happened as it happened. There was no way the judge set out the evidence and related it to the issues.
Mr Caldecott also argued that the judge repeated without comment the statement by Mr Alan Ruddock (the writer of the article)that he believed Mr Reynolds had lied to the Dail.
He said that by this stage the jury would have been hopelessly confused as to Mr Reynolds's case, the newspaper's case and the difference between them.