INDEPENDENT TD for North Tipperary Michael Lowry has appealed to the High Court for a summary ruling in a defamation case over comments by journalist Sam Smyth which, the TD claims, wrongly meant he was a thief.
Mr Smyth has denied words used by him during an appearance on the TV3 show Tonight With Vincent Brownemeant Mr Lowry was a thief but said he did believe the politician was a liar and tax cheat. He also denied he defamed the politician in a newspaper article.
Noting the proceedings raise important issues under the Defamation Act 2009 not previously ruled upon with implications for other potential litigants, the president of the High Court, Mr Justice Nicholas Kearns, said he would reserve judgment.
Both Mr Lowry and Mr Smyth were in court for the hearing which centres on construction of key provisions of the 2009 Act allowing for the making of correction and prohibition orders concerning defamatory material.
Where an application brought under the Act is refused, the applicant cannot take any other proceedings alleging defamation. If an application for a correction/prohibition order succeeds, the applicant cannot seek damages in addition to such orders.
Mr Lowry has appealed against the February 2011 decision of Circuit Court judge Margaret Heneghan refusing a summary ruling under the 2009 Act that comments by Mr Smyth were defamatory, Mr Smyth had no reasonable defence to advance and an order for a correction should be made.
Judge Heneghan noted she had read the alleged defamatory materials and materials attached to Mr Smyth’s affidavit, including matters to do with the McCracken and Moriarty tribunals; Mr Lowry’s dealings with Dunnes Stores and his personal statement to the Dáil in 1996 after his resignation from cabinet.
The test for Mr Lowry’s case was very high as he had to show Mr Smyth had no defence reasonably likely to succeed, she said. She could not find that was the case so the matter would have to go to a full hearing.
The case arises from comments by Mr Smyth on the Vincent Browne show of June 24th, 2010, relating to the work of the Moriarty tribunal. Mr Lowry alleges he was defamed by Mr Smyth saying: “But the first we caught sort on video with hand in till was Michael Lowry and he resigned....”
Mr Smyth denies defamation and says he was referring to Mr Lowry being engaged in tax fraud and, inappropriately in the context of a senior politician such as Mr Lowry then was, having your bills picked up by a businessman.
Mr Lowry has also alleged defamation in an article written by Mr Smyth and published in the Irish Independent on May 27th, 2010, under the headline “Tribunal will reveal findings on money trail to ex-minister”.
Mr Smyth referred in that article to the Moriarty tribunal investigating property transactions, in the context of its inquiries into the 1995 mobile phone licence competition, and stated: “The total value of all the property transactions involving Mr Lowry was around £5 million sterling.” Mr Lowry claims that sentence meant he had unlawfully benefited from transactions concerning property valued at £5 million by awarding a mobile phone licence while he was minister for communications and suggested he was a corrupt politician and unfit for public office. “This accusation is false and constitutes a grave defamation on my character..,” he said in an affidavit.
Yesterday, Martin Giblin SC, with John Kiely, for Mr Lowry, said the statements complained of were defamatory and not supported by any evidence.
The hand in the till remark was “deeply, deeply offensive” to Mr Lowry, Mr Giblin said. Mr Smyth had referred to tribunal reports and findings but the courts had ruled such material was inadmissible both in civil and criminal proceedings.
The case now being advanced by Mr Smyth was entirely different from that made in the Circuit Court where he relied almost 99 per cent on inadmissible material from tribunals, counsel said. Arguments about having to look to the context of the material complained of were not a defence, the context was inadmissible and there was no entitlement to hurl abuse at fellow citizens.
Oisín Quinn SC, for Mr Smyth, said the 2009 Act allows for the making of a correction order only when the court has ruled it was clear the defendant has no defence. That was not the position here and Mr Smyth was not relying on tribunal reports but also on other matters, including Mr Lowry’s own admissions concerning his house refurbishment costs and certain tax matters. Mr Smyth was a highly respected investigative journalist entitled to comment on matters of public interest.
Mr Smyth clearly had a defence and to effectively grant summary judgment now would deprive him of his legal and constitutional rights. Mr Smyth was contending the words complained of were true in their true meaning, not the meanings alleged by Mr Lowry, when taken in the context they were made. Mr Smyth argued the words were opinions honestly held by him, expressed on a matter of public interest and published in good faith on a matter of public interest. It was “odd” Mr Lowry had chosen to sue Mr Smyth and not the publishers of the material complained of, counsel added.
