JUDGMENT his to be given by the High Court today on an application by a businessman, Mr John Traynor, for an injunction to stop the Sunday Independent publishing an article relating to him by the late Veronica Guerin.
Mr Traynor (48), of Glenvara Road, Templeogue, Dublin, first brought the application before the court on June 14th, but it was adjourned when it was stated that no article relating to him would be published on the following Sunday.
The application had been adjourned on two occasions since.
Named as defendants in the application were Independent Newspapers plc, Ms Veronica Guerin, and the Sunday Independent editor, Mr Aengus Fanning.
Mr Adrian Hardiman SC, for Mr Traynor, told Mr Justice Barron that the starkest features of the case were the murder of Ms Guerin and the clear potential of a similar outcome for his client.
Mr Eoin McCullough, counsel for the defence, said his clients did not accept the contents of affidavits submitted on behalf of Mr Traynor. He added that, if a decision was made to publish, his side would justify the article.
Opening the hearing, Mr Hardiman said that, in view of the fact that Ms Guerin was brutally murdered last Wednesday, his side's solicitors had written to solicitors for the defence expressing the distaste they felt in urging the application so soon after the tragic and criminal event and offering an adjournment. For reasons of their own, the defence were of the view that it should proceed yesterday.
Having opened two affidavits by Mr Traynor, Mr Hardiman said the court had power to grant an injunction against a defamatory publication. The court should act on the evidence available to it. Mr Traynor's affidavits were uncontradicted.
The application raised the question of Mr Traynor's constitutional right to his good name, integrity, privacy and right to life. It also raised the question of the defendants' right to freedom of expression.
Most significant, on the uncontradicted evidence served in ample time before the brutal murder of Ms Guerin, was that she had accepted that the proposed story was false.
There had been no attempt to put any material before the court about Ms Guerin's role or that of Mr Fanning or a garda who compiled an alleged report.
Mr Hardiman said the defendants had not put in an affidavit. It had been stated the article to be published was likely to attract the criminal element, vigilantes and paramilitary organisations.
It was extraordinarily sad and ironic that Ms Guerin, who apparently wrote the article, had commented shortly before her own murder that being named as a drug dealer could lead to being murdered.
Damages would be a totally inadequate remedy. Publication of a libel of this sort would destroy his client beyond compensation by damages which would have to be awarded, and the risk to life was well beyond that.
Mr Traynor sought the protection of the court against a "one sided, hyped up quasi trial by newspaper".
A Garda report was said to have been leaked to the newspaper editor, but he had not put in an affidavit saying whether this was true or false. Nobody suggested for a moment that the story could be stood over.
Opening submissions for the defence, Mr McCullough said the defendants did not accept the contents of Mr Traynor's affidavits.
Mr Justice Barron said if they did not, why did they not say it on affidavit?
Mr McCullough said it was no secret that Ms Guerin was on her way to meet her lawyer when she met her death.
The material in the affidavits was what Ms Guerin was supposed to have said. He (counsel) was not in a position to put in an affidavit to contradict that because of what had happened in the meantime. The difficulties were self evident.
The judge said the first affidavit was made on June 14th and the second on June 18th.
Mr McCullough said if the court did not make an order, and the article was subsequently published containing inferences, his instructions were that they would plead justification. They would plead the truth of those allegations if they were printed and would stand over them at trial.
The right to free speech was the right on which his clients based their defence. If the right to free speech had any value, it had to be a right that weighed very heavily in the scale. All the (legal) authorities indicated that it would be wrong in principle to grant the injunction.
This was a case in which his clients were willing to stand by publication and suffer the consequences of publication. The courts had recognised that, if defendants said they were willing to take the risk of pleading justification, then the courts should say: "So be it".
Mr Justice Barron said he appreciated they were more than slightly handicapped because the article was not before the court and they had no idea of what was going to be in it.
Mr Hardiman said the tragic and brutal killing of Ms Guerin was being used as a screen by the defence not to put in an affidavit.