Mr Albert Reynolds's motivation for suing the Sunday Times in England was to avoid a libel trial in Ireland where witnesses could be subpoenaed, the Court of Appeal was told yesterday.
Mr James Price QC, for the Sunday Times, making submissions defending Mr Reynolds's appeal, said of the libel trial: "Every technical effort was being exploited to shut out evidence".
He had asked: "Why is Mr Reynolds taking this lawsuit in England at all?"
Lord Justice Hirst asked how that squared with the qualified privilege argument by the newspaper that the British public had a right to the information.
Mr Price said it was the newspaper's duty to bring the attention of the English public to the information.
He said that he would give an example of The Irish Times in the editorial comment on the Thursday before the Sunday Times article.
"As your lordships know, The Irish Times is the smart newspaper, the newspaper of record," said Mr Price.
"The Irish newspapers say as emphatically as they could that Mr Reynolds lied to the Dail," Mr Price said. The leader in The Irish Times referred to the affair as "humiliating and shameful" and "were it not for Mr Spring's assiduity, this unpardonable misleading of the House might never have been revealed".
Also, in the Sunday Tribune there was a comment piece by Mr Adrian Hardiman SC, which implied the same.
Lord Justice Hirst said that the Irish newspapers could be as rude as the Sunday Times, but asked was the victim "not entitled to choose his own target".
Mr Price said that the Sunday Independent had also accused Mr Reynolds of being deceitful.
Why had there been no action in the Republic and only action in the English courts? He could choose his own target. The suggestion they had made in cross-examination in the trial was that choosing this course prevented the defence calling witnesses.
They could not call Mr Dempsey, Mr Howlin, or Mr Spring. They were denied access to them, he said. They were prevented from calling the witnesses that "could have killed him [Mr Reynolds]".
Mr Price said that Mr Reynolds had said in evidence that he had not noticed he had been libelled in Ireland. For over a year, he had not been aware that the Irish newspapers had called him a liar.
Lord Justice Hirst observed that perhaps the reason the defendants were taken as the target was because they had "vastly greater resources to defend itself than any of the others".
Mr Price replied that there was no reason to see why the Sunday Independent could not have amply afforded to defend an action.
The one witness that might have been called, Mr Fergus Finlay, had not been present at any of the meetings that mattered.
Mr Price referred to the issue of diary notes made by the Minister for Social Welfare at the time, Dr Woods. He said that these were ruled inadmissible at the trial.
Lord Justice Hirst said that they had the ruling against them (the diary notes) but "you managed to weedle it in" in a skilful cross-examination of Mr Reynolds. "Mr Reynolds made some reference to it and you said `heigh-ho', now we're in."
Mr Price said they could not see what the problem was. He was puzzled by the position taken. They were startled that they (the diary notes) had been denied access to the jury.
Lord Justice Hirst said: "So you skilfully got round it?"
Mr Price said that Mr Reynolds took unfair advantage of the way in which the case was argued. "The other side took wholly unfair advantage of us."
Mr Price said not one single witness they wanted could be subpoenaed. There was a little game being played with documents and they could not get the documents either.
Mr Reynolds was not an uneducated man, he was a "former Chancellor of the Exchequer", had other ministries, and was a founder of the largest pet food company in the country. He knew what he was doing and what his lawyers were doing.
Mr Andrew Caldecott QC, for Mr Reynolds, addressing the point of why Mr Reynolds sued in England, said his evidence was that he did not read the Irish newspapers over the relevant period.
This evidence had been described as incredible. Mr Reynolds said he was fed up with reading the newspapers at this time. To dismiss this as an untrue answer was quite unreasonable. There was no evidence to the contrary.