DECISION:MICHAEL LOWRY'S argument that evidence given to a tribunal, or a finding by a tribunal, had no evidential value in other proceedings was accepted by Mr Justice Nicholas Kearns.
As a result, he said, Sam Smyth was not entitled to rely on reports and findings of the McCracken and Moriarty tribunals concerning Mr Lowry as “evidence” in his defence of the politician’s libel action.
However, a “road map” was disclosed in such reports which indicated a way for Mr Smyth to marshal a defence without being forced to rely on the tribunals’ findings, he said. Mr Smyth was entitled to argue the words “hand in till” may be taken as referring to tax fraud and bills inappropriately picked up for the benefit of Mr Lowry by business interests.
The fact Dunnes Stores paid €395,000 to the contractors who refurbished Mr Lowry’s home in Co Tipperary, and that Mr Lowry was availing of offshore accounts to receive other payments, were also matters which could be established in evidence other than exclusively through tribunal findings.
Mr Lowry had not specifically challenged the receipt of payments referred to by Mr Smyth and admitted arriving at a settlement with the Revenue in 2007, the judge noted.
It was also open to Mr Smyth to argue that his report of the mere fact that a tribunal was investigating a person’s possible involvement in a series of property transactions with a possible link to the awarding of a mobile phone licence was “not necessarily defamatory per se”.
Mr Smyth was entitled to report and comment on the fact that the Moriarty tribunal was following a “money trail” in certain property transactions to which it felt Mr Lowry was linked and which had a combined value in the region of £5 million.
Earlier, Mr Justice Kearns said tribunal hearings and findings could be reported upon by the media and tribunal findings may provide “a road map or trail” for other bodies or persons with an interest in the subject, whether that be the Oireachtas, the Director of Public Prosecutions or private litigants. Without that characteristic, the function of tribunals would be “nugatory and pointless”.
He noted Mr Lowry had initially sought relief under other sections of the 2009 Act, including section 28, which required proof of “no defence”. “Strangely,” Mr Lowry later chose to proceed under section 34 only, suggesting a view was taken that a claim Mr Smyth had no defence was less likely to succeed than a claim he had no defence that was “reasonably likely to succeed”.
He also noted section 34 seemed to be addressed to media outlets, but Mr Lowry had not joined TV3 or Independent Newspapers to the case. While that “might appear surprising”, section 34 did not preclude an application directed at an individual, he said.