The Sunday Times did not ask Mr Albert Reynolds for a comment when it was writing an article which made allegations about him. It also excluded a defence he gave to the Dail when he was Taoiseach, the House of Lords was told yesterday.
The Sunday Times is appealing a legal issue on qualified privilege arising out of the libel case Mr Reynolds took against the newspaper. Yesterday the newspaper's lawyers concluded their submissions, and Mr Reynolds's lawyer began his arguments.
Mr Reynolds has been at the hearings since they began on Monday. Yesterday, while he was waiting to go into the room in the House of Lords in Westminster where the five law lords sit, he met a familiar person in Lord Mayhew, previously Sir Patrick Mayhew, former Northern Ireland secretary.
On the third day of the appeal, expected to conclude today, Mr Andrew Caldecott QC, for Mr Reynolds, said they rejected the Sunday Times case that there should be qualified privilege in the context of political discussion regardless of the status, source and nature of the defamatory information given.
He said there were three parts into which information should be divided, and to see in public interest terms the effect of those parts: general subject matter; a specific message; and its value as information in terms of its weight, status and to what extent it was authoritative.
"We say that a fundamental part of that information is putting it to the person who has been criticised."
He said Mr Reynolds had the right to shed light on the information, and his view was an essential part of the information process. The allegation was never put to him. There should be a chance and right to reply. Mr Reynolds's Dail explanation ail was also excluded.
The Sunday Times did not challenge and conceded in terms that the journalist knew of Mr Reynolds's Dail defence but did not include it in the article as the journalist rejected Mr Reynolds's version of events. The article was, therefore, unfair within the statutory criteria.
Last year Mr Reynolds won a retrial in the Court of Appeal. The Sunday Times lost its argument that it had qualified privilege when it published the article in November 1994, at the time the Fianna Fail-Labour coalition collapsed and Mr Reynolds resigned as Taoiseach.
In November 1996 a London High Court jury found that Mr Reynolds had been libelled but awarded him zero damages, which the judge altered to one penny.
Earlier yesterday Mr James Price QC, for the Sunday Times, said that a particular test, a circumstantial test which related to the status, nature and source of the information of the article, should be raised at the retrial.
The Court of Appeal had ruled that, given the nature, status and source of the defendants' information, and all the circumstances of the publication, it was not a publication which should, in the public interest, be protected by privilege in the absence of proof of actual malice.
Mr Price also said yesterday that at the trial a great deal of play had been made on the point that the Irish edition carried a different story. The story in Ireland was written by a freelance and he did not reach the conclusion reached in England. Not all journalism needed to be "on the one hand, on the other hand". It was not necessary to give both sides, providing there was no malice.
During the course of the arguments Lord Nicholls, presiding, commented that juries found libel actions extraordinarily difficult and did extraordinary things.