Solicitors allege defamation by Denis O’Brien in press statement

Two solicitors are suing businessman Denis O’Brien alleging they were defamed in a press statement issued in response to a report on the concentration of media ownership in Ireland.

The press statement was released on September 26th, 2016 on behalf of Mr O'Brien by his spokesman James Morrissey, also a defendant in the case.

The defendants deny defamation and have also advanced defences of truth and honest opinion, qualified privilege and fair and reasonable publication in a matter of public interest.

In a judgment published this week on pre-trial applications, Mr Justice Mark Heslin struck out various pleas of truth and honest opinion in the defences.

Belfast based Darragh Mackin and Gavin Booth initiated separate defamation proceedings in 2017 over the press statement responding to a report commissioned by then Sinn Féin MEP Lynn Boylan on the concentration of media ownership in Ireland.

The plaintiffs co-authored the report with two other lawyers.

They claim they were defamed by content in the press statement which stated: “Sinn Féin/IRA certainly got the report they paid for.”

They claim that meant, and was understood to mean, inter alia, they had acted for, and received payment from an unlawful organisation, namely the IRA.

The defendants deny defamation, deny the press statement means what the plaintiffs allege and, while admitting publication, they dispute the extent of publication.

Prior to the hearing, the plaintiffs brought pre-trial motions seeking to strike out the pleas of truth/honest opinion in the defences.

Critical

Both sides also brought discovery applications.

In his judgment, Mr Justice Heslin said the report commissioned by Ms Boylan was critical, inter alia, of Mr O’Brien. Its conclusions included that there were “extremely grave concerns” about the high concentration of media ownership in the Irish market, “and in particular regarding the position of INM and Mr Denis O’Brien”.

The judge was satisfied none of six meanings contended for by the defendants in relation to their defence of truth/honest opinion met the relevant legal test and those pleas should be struck out.

He said the pleas that the true meaning of the press statement, and the defendants’ honest opinion, that the report “was not an independent study” did not go to the “sting” of the alleged defamation.

While the press release is capable of meaning the plaintiffs wrote a report which lacked independence, this was materially different from suggesting they acted for and were paid by a terrorist organisation, which was what the plaintiffs complained about, he said.

The same point applied to the pleas of truth/honest opinion concerning their claims, inter alia, that the statement meant the report was "neither balanced nor fair" due to its failure to refer to RTÉ, was "designed to advance the political agenda of Sinn Féin", that "Sinn Féin supported and continues to be associated with the IRA"; that "the violence carried out by the IRA which is supported by Sinn Fein continues to have a chilling effect".

There was “no common sting” between those pleas and the plaintiffs claim they were defamed by the words: “Sinn Féin/IRA certainly got the report they paid for”, he said.

Most of the meanings advanced by the defence for their pleas of truth/honest opinion do not appear to be at all defamatory of, or capable of being defamatory of, the plaintiffs, the judge added.

Ruling on discovery applications, he held the defendants were not entitled to discovery evidencing the commissioning of the report, noting it was not in dispute in the proceedings that it was published by the European United Left/Nordic Green Left grouping in the European Parliament and that Sinn Féin is a member of that grouping.

The defendants were also not entitled to documents concerning payment for the report, or relating to drafts of the report or its terms of reference, as those were neither relevant nor necessary for the case, he said.

The plaintiffs, he ruled, were entitled to discovery of documents relating to the extent of circulation and publication of the press release. In the context of the defence plea of fair and reasonable publication on a matter of public interest, the plaintiffs were also entitled to all documents relating to attempts to get a response from the plaintiffs prior to publication of the press release.