TD claims judge misdirected jury in libel hearing

An appeal by Fianna Fáil TD, Ms Beverley Cooper-Flynn, against a High Court jury's decision in her unsuccessful action for damages alleging libel in a series of RTÉ broadcasts opened yesterday before a five-judge Supreme Court. The hearing continues today.

Because of a number of factors, including alleged misdirection by the trial judge to the jury on the issue of majority voting, a substantial miscarriage of justice had occurred, Ms Cooper-Flynn claims.

The High Court decision included findings that the TD and former National Irish Bank financial adviser had advised or encouraged a number of persons to evade tax but had not induced retired farmer Mr James Howard to evade tax by not availing of the tax amnesty.

The Chief Justice, Mr Justice Keane, yesterday said the court regarded the trial judge's direction to the jury on majority voting as "fundamental" to the whole appeal and asked the parties to address that issue initially.

Ms Cooper-Flynn has submitted the trial judge, Mr Justice Morris, had incorrectly directed the jury as to the law on majority voting. His directions were "simply wrong" and, in those circumstances, the jury decision in her case could not be regarded as either safe or satisfactory, Mr Eoin McCullough SC said.

Lawyers for RTÉ, journalist Charlie Bird, and Mr Howard argued that counsel for Ms Cooper-Flynn had agreed to the arrangements for majority voting at the time of trial, that those arrangements were to the benefit of Ms Cooper-Flynn and that counsel could reach such inter-partes arrangements in civil proceedings. What Ms Cooper-Flynn was seeking was a "double bet", Mr Kevin Feeney, for RTÉ and Mr Bird, argued.

The appeal arises from a decision by a High Court jury in March 2001 in proceedings brought by Ms Cooper-Flynn against RTÉ, Mr Bird and Mr Howard arising from certain RTÉ broadcasts.

After a 28-day hearing, Ms Cooper-Flynn walked away with no damages when the jury decided her reputation had suffered no material injury because of the RTÉ broadcasts of June and July 1998. She was later directed to pay the costs of the action, estimated at some £2 million. In their verdict, the jury of eight men and four women decided the defendants had proved the Co Mayo Fianna Fáil TD had advised or encouraged a number of persons referred to in evidence during the trial to evade tax.

However, the jury found the defendants had not proved that Ms Cooper-Flynn had induced Mr Howard to evade his lawful obligation to pay tax by not availing of the tax amnesty.

The jury had been asked, in view of their finding that the defendants had proved the deputy advised or encouraged the persons referred to in the evidence to evade tax, if Ms Cooper-Flynn's reputation had suffered material injury by reason of the matters published relating to Mr Howard. They answered it had not.

Asked in view of their earlier answers to assess damages to the material reputation of Ms Cooper-Flynn, they filled in the word "None" on the issue paper.

The total costs of the 28-day trial were estimated at some £2 million. Irrespective of the outcome of the action, RTÉ had agreed to indemnify Mr Howard against any costs orders made against him. Ms Cooper-Flynn (36), Manor Village, Westport, Co Mayo, worked as a sales adviser with National Irish Bank for seven years before she was elected to the Dáil.

She claimed that in the June/July 1998 broadcasts, words were used which meant she had instigated a scheme whose object was the evasion of the lawful payment of tax. In some broadcasts, Mr Bird interviewed Mr Howard (69), formerly of Ardcath, Co Meath, and now of Acorn Way, Wheaton Hall, Drogheda, Co Louth.

Opening the appeal before a packed Supreme Court yesterday, Mr Eoin McCullough SC, with Mr Garrett Cooney SC, for Ms Cooper-Flynn, who was in court, advanced a number of grounds of appeal, including grounds relating to the trial judge's directions to the jury on majority voting and his charge and recharge to the jury.

Counsel argued the law on majority voting is clear and provided that, in civil actions, a majority of at least nine is necessary to reach a verdict. In cases where a jury had to decide a number of questions, as in this case, the judge was obliged to tell the jury that the same nine must be agreed on each question.

The jury had four questions to answer in this case. These were (1) whether the defendants had proved Ms Cooper-Flynn had induced Mr Howard to evade his lawful obligation to pay tax by not availing of the tax amnesty and (2) whether they had proved she advised or encouraged other persons (referred to in evidence) to evade tax.

Question 3 asked whether Ms Cooper-Flynn's reputation suffered material injury through the matters published relating to Mr Howard while Question 4 asked the jury (only if they had answered No to questions 1 and 2) to assess damages.

The jury answered No to Question 1, Yes to Question 2, No to Question 3 and awarded no damages. Mr McCullough said the trial judge had wrongly directed the jury on majority voting. The jury were left with a direction that each of questions 1 to 3 could be answered by a different majority of nine and that there was no obligation to have the same nine common to every majority. This was "simply wrong", said Mr McCullough.

Mr McCullough also argued the trial judge was wrong to allow the admission into evidence of a letter which contained a reference from an investment manager in NIB's Financial Advisory Services Division to "hot" money.