Thread by @broadsheet_ie

#DOBvSBP Jury in Denis O'Brien's defamation case against Sunday Business Post will hear closing arguments this morning.

O'Brien claims articles published March 15, 2015, about a Govt-commissioned but unpublished PwC report into Ireland's top 22 borrowers were defamatory of him

#DOBvSBP The SBP denies words in the articles mean what Mr O’Brien alleges. It also denies defamation or malicious publication.

Former editor of SBP Ian Kehoe and former business editor Tom Lyons have repeatedly said they published the material as a matter of public interest

#DOBvSBP Paul O'Higgins SC and Luán Ó Braonáin SC are representing Denis O'Brien.

Michael McDowell SC is representing the Sunday Business Post.

Mr Justice Bernard Barton is presiding.

#DOBvSBP Judge to jury: We have agreed questions on which the parties want your verdict. All questions are agreed and they are on an issue paper. It's been agreed you see this paper before the [closing] addresses.

#DOBvSBP Judge to jury: Please pay particular attention to what counsel have to tell you. It’s extremely important and if you wish to make notes, you’re entitled to do that.

McDowell will address the jury first.

[Issue paper will be given to jury in next few moments]

#DOBvSBP Issue paper has been circulated. Judge has asked jury to take a few moments to read it.

#DOBvSBP McD: My client's case is there no defamation, none whatsoever and this case is a disgraceful case for DOB to have brought. Allegation of defamation against DOB is wholly unfounded, manufactured, false, damaging, irresponsible and to turn the argument: it’s malicious

#DOBvSBP MCD: DOB has come to this court, claiming that he’s seeking to vindicate his character but, in effect, the burden he seeks from you is nothing of the kind. He's seeking you to say the articles were malicious, that they broke the law and they set out to defame him

#DOBvSBP MCD: He's saying they wrongly included him in the coverage (of Ireland's top borrowers) and the articles had meanings which we say don't stand up to scrutiny at all

#DOBvSBP McD: It's my client's [Post Publications Ltd] case and the case I’m making to you: that this case should be thrown out in its entirety. That’s what I’m asking you to do.

You've heard from 3 witnesses: Denis O'Brien, Tom Lyons and Ian Kehoe.

Who is telling the truth?

#DOBvSBP McD: Who brought in evidence that is false?

There have been accusations of malice against these two men [Lyons and Kehoe] without any basis.

Who claimed he had correspondence to prove the points he was making and failed to produce it?

What’s that about?

#DOBvSBP McD: DOB has come here to seek a verdict in damages because he wants to effectively exercise power over the Sunday Business Post.

He wants to project his power against these two gentlemen [Lyons and Kehoe] by exposing them as 'malicious'

#DOBvSBP McD: That's what he's asking you to do...to find that these two men maliciously decided to damage his character.

If you come to the conclusion that that’s a false, wild claim - I will ask you find accordingly and throw this out lock, stock and barrel.

#DOBvSBP McD says this is a case in which either SBP set out to defame DOB, maliciously as claimed, and "lumped him in with people he’d no connection whatsoever", or it's a case that charges against SBP are "wholly unfounded, wholly unsustainable and brought in bad faith" by DOB

#DOBvSBP McD: I put it bluntly, in black and white, there is no middle ground in this case.

Says either DOB's claims about the meanings of the articles are either "incorrect or correct".

"If incorrect, this case fails"

#DOBvSBP McD: Now you will be told - because it always happens in defamatation cases - that DOB is only hear to vindicate his character.

And that the only way he can vindicate his character is to seek damages

#DOBvSBP MCD: You'll be told he's been forced to come here and that he's somebody who is a victim of a defamation, who we [SBP] have wrongly forced to come here seeking restitution…that is not the case. It's simply not the case.

#DOBvSBP McD: Mr O'Brien did not have to issue these proceedings. He didn't have to, at any stage, continue with these proceedings... He brought you here...it's not like he's been obliged by circumstances of fact to come to court as an unwilling person

#DOBvSBP McD: He is seeking damages from you by way of an award...that's what he's doing.

He didn't have to make that case.

He chose to make that case and he chose to issue these proceedings

#DOBvSBP McD: I say all that because the notion he is a victim is respectfully wholly unsupported.

McD tells jury 1) DOB claims the description of him being in a 'gang of 22' suggests 'criminality' and 2) that the articles suggest DOB was somehow responsible for the crash

#DOBvSBP McD: First of all, number one, if that were true, it would be the same in respect of all of the people mentioned in the articles.

McD tells jury if was the case DOB was defamed then the other 21 borrowers in the articles would be taking similar action but they're not.

#DOBvSBP McD argues if the defamatory meanings of the articles (as suggested by DOB) are true then "they're true of all of them".

McD: They've [other borrowers] not brought cases. If they didn’t defame all of them, how is it the case that they defamed DOB?

#DOBvSBP McD: Once you ask that question, it becomes obvious Mr O'Brien was no defamed and was not "unfairly lumped in with others" and "was not unfairly accused of being part of some common purpose to destroy Ireland's banking"...

#DOBvSBP McD: Second thing: you have heard evidence that Ian Kehoe and Tom Lyons were especially conscious in the run-up to the publication of these articles of Mr O'Brien and they were especially conscious of his propensity to sue or threaten to sue

#DOBvSBP McD tells jury that this account from TL and IK is true.

He says Lyons's evidence that RTE asked him not to mention Denis O'Brien in a radio interview - about the March 15, 2015 SBP reports - "corroborates this account".

#DOBvSBP McD: They [TL and IK] had the articles looked at by lawyers.

Says two things arise from that - do you think for one moment that this was all part of a drama…that they said 'well, we’ll have a go/crack at him anyway…maliciously and see how far we’d go with that'

#DOBvSBP McD: Do you think an editor would do that?

Do you think for one minute that the editor and deputy editor said: 'let's defame Denis O'Brien, let's say things we know are untrue and let him sue us'.

#DOBvSBP McD: Or is the case that they were especially careful and that they had it in mind that he might sue and they were especially careful to make sure there was no defamatory material about him?

#DOBvSBP McD: You’ve to ask yourself: which is more likely? Would the editor of a newspaper in these circumstances sit down with Tom Lyons and say ‘let’s see how far we can go…let's deliberately put wrong things in and do damage to him because we have an agenda against him..'?

#DOBvSBP McD: I suggest, on the balance of probability, it's an enormous reach to suggest these two gentlemen set out to deliberately damage Denis O'Brien

#DOBvSBP McD: You’ve heard DOB, TL and IK give evidence.

I have to ask you, when you consider your verdict: Who was trying to tell you the truth? Who was irresponsible? Who was willing to damage others and impute false motivation towards others in the evidence they gave?

#DOBvSBP McD: ...and who was giving evidence trying, at the very best, to be honest, truthful and honourable journalists?

Acting in the best interest of their newspaper and their readers?

#DOBvSBP McD: And if you consider the two sets of evidence [DOB V TL and IK] it becomes immediately apparent that they [TL and IK] were doing their best to be truthful... in dealing with trenchant cross-examination ....and sometimes sarcasm.

#DOBvSBP McD says Denis O'Brien's counsel put it to the TL and IK that they had "invented the idea" that the PwC report copy they had was in black and white "so they could escape" the consequences of a colour-coded table about land and development loans...

#DOBvSBP ... in the version of the PWC report which the Banking Inquiry obtained and which DOB's counsel introduced to the proceedings last week after Denis O'Brien gave evidence.

#DOBvSBP McD says ppl are covered by absolute privilege when testifying in court and DOB is entitled to make claims. But McD says there's a consequence when someone makes a claim of malice like that and that's that a jury can judge the character of the person making the claim

#DOBvSBP McD said some of DOB's remarks were "vicious".

McD: I said to DOB ‘I take it you’re not suggesting that Tom Lyons had a list of 22 people and decided that he’d just insert your name into that list?'...

The response I got from DOB was 'I wouldn't put it past him'

#DOBvSBP MCD: Why did he say that? Where does the malice lie when he makes claims like that?

#DOBvSBP McD recalled evidence heard about correspondence between DOB's spokesman James Morrissey & Nick Webb (Tom Lyons's former boss in the Sunday Independent after they co-authored an article about Anglo Irish Bank's top borrowers in 2012). More here: broadsheet.ie/2019/02/12/mea…

#DOBvSBP McD said Morrissey "attacked Mr Lyons in a disgraceful way, a really disgraceful way".

McD: He set out that he [Lyons] acted improperly and unprofessionally for not putting to him the exact figure that appeared in the Sindo article of DOB's indebtnesss to Anglo...

#DOBvSBP MCD [contd]: ...but it later transpired in the witness box that, under no circumstances, would be verifying that figure.

McD tells jury that Denis O'Brien told the jury the figures in the SBP were wrong but he refused to tell the jury how wrong (by a cent or €100k)

#DOBvSBP McD: He just full-stop refused to address that issue and stood on what he regarded as his right to privacy - which is fine but then to say two journalists were guilty of malice...

#DOBvSBP McD: [contd]...and to charge to TL's employers that he’s guilty of professional misconduct for not putting a figure to him - when he knew his representative James Morrissey would tell him 'to get lost' shows a degree of malice which should not be forgotten in this case

#DOBvSBP McD: One of the issues DOB said was particularly unfair was that he was lumped in with developers and described as a developer king and he said to you that in 2015, when the SBP article was published, the term ‘developer’ was defamatory…

#DOBvSBP McD: I don’t know what direction the trial judge will give to you on that matter but I’m saying to you it’s not defamatory

#DOBvSBP McD: We all live in houses which were built at some point or other by a developer...

McD: Mr O'Brien, in order to say he was the odd man out and there was no basis whatsoever to include him in these articles said ‘I’m not a developer’. He kept repeating it like a mantra

#DOBvSBP McDowell goes on to list the property interests that he and his solicitor could find on Google..this includes properties he owns/owned in Dublin, Cork, Portugal, etc.

#DOBvSBP In respect of DOB's evidence that he put his resort Quinta do Lago on the market for 220m because his wife was tired of people "coming up to him at dinner to ask him about the state of the greens" but then took it back off the market because his mother liked it...

#DOBvSBP McD says that was a "folksy, phoney, false account"

McD: I'm asking you [the jury] was he honest? Would a businessman like him put a property on the market for €220m and then take it off the market in those circumstances? There's a ring of falsity to that.

#DOBvSBP MCD: There's overwhelming evidence contrary to the impression he gave to you [jury] and kept on saying to me [that DOB is not a developer]....He has been a developer all of his adult life

#DOBvSBP MCD: That doesn't mean that he’s not also a communications entrepreneur.

#DOBvSBP McDowell goes to the correspondence between Denis O'Brien lawyers and those of the SBP after the publication of the articles on March 15, 2015.

McD says that the language in the letter from Meagher solicitors to SBP suggested that DOB was "looking for a fight".

#DOBvSBP McD: I saw a scene outside a chipper, where a man went to another 'what are you looking at me like that for?'

The other man: I'm not.

The man making the claim said to man next to him: Was he looking at me?

That man agrees

First man: Are you calling my brother a liar?

#DOBvSBP McD compares this scenario to the letter from Meagher Solicitors which accused SBP of claiming DOB was involved in "criminailty" by saying he was in a 'gang' of Ireland's top 22 borrowers

#DOBvSBP MCD: This is the aggressive fight-seeking language... Is it an honest evaluation of the articles? Of course it isn't..

#DOBvSBP MCD: Nobody was allowed mention DOB in this newspaper…in any copy..do you seriously think anyone would say DOB is a criminal?…Of course they didn't...but they [DOB legals] were spoiling for a fight.

#DOBvSBP MCD: He could have written a letter saying ‘you were very unfair to me’.

[Reading from a letter] McD says: His solicitor says ‘we have to hit them with a plenary sunmons’..that’s what he says and that where this case begins..was it sensible?

#DOBvSBP MCD: And when the plenary summons was issued, the whole case remained dormant for 14 months…and then a statement for claim is delivered..and and that abandons the complains about criminality and illegality...

#DOBvSBP [contd] MCD: ...and narrows it down to a slightly different and well thought-through case and added to that well thought-though case…was an additional paragraph saying ‘these two men [TL and IK] acted with malice'

#DOBvSBP McD seeks to "be clear" about what malice is.

He says DOB is claiming that SBP published "something they knew was false" and "consciously decided to damage Mr O’Brien"...

#DOBvSBP MCD tells jury DOB is claiming that the SBP took DOB's Anglo indebtedness which was "already old hat" and "decided to reheat it and that shows they were acting maliciously"

#DOBvSBP McD: You’ve heard their [TL and IK] evidence about how they actually considered, because there was this fear factor about DOB, simply taking out DOB's name and not mentioning him at all and that they'd just name the other 21

#DOBvSBP McD dubs this the "RTE approach" - harking back to Tom Lyons's evidence that he was told by RTE not to mention Denis O'Brien in a radio interview

#DOBvSBP McD said: You heard them say they could not be reduced by threats or fear of litigation by just blanking him out…I’ve got to suggest to you...if an editor of a newspaper is so cowed by fear of DOB...then they wouldn't be worthy of the name of a newspaper editor at all

#DOBvSBP McD: DOB is saying SBP 'wanted to put me in there, wanted to damage me'. Who’s telling the truth? The flamboyant Mr O'Brien who sees himself as a victim of these articles, who described himself as "central figure" in the articles? Of course he wasn't. He was one of 22

#DOBvSBP McD tells jury when DOB gave evidence he told the jury he didn't know if he was one of the 22 people named in the PwC report because he hadn't seen the report. McD says DOB has insinuated that Tom Lyons "plucked" him from the air and named him as someone named in PwC rot

#DOBvSBP *report

#DOBvSBP McD tells jury that DOB said in his evidence that "he wouldn't put it past" Tom Lyons to do something like that.. McD later corrects himself as he misquoted DOB. McD later tells jury that what DOB said was "Well it’s not beyond Mr Lyons..."

#DOBvSBP McD says the day/second day after DOB said this in the witness box, Tom Lyons was giving evidence when he was "confronted with an excerpt of the PWC report" [from the Banking Inquiry] which contained a redacted list of borrowers

#DOBvSBP McD is referring to the image below.

McD said DOB initially said he didn't know if he was one of the 22 top borrowers.

But then when this image emerged, DOB's legal team "changed their tune completely" and said he was number 10 on the list even though it's blacked out

#DOBvSBP MCD: They said ‘that’s us’ and then they changed their tune completely ...and they asked Tom Lyons if he saw the colour coded marks on the image about the borrowers' risk ratings.

They said 'you should have put that in the article'

#DOBvSBP MCD claims it was essentially put to Tom Lyons that he "perverted the meaning of the table by by not telling readers that".

McD tells jury the SBP wrote that DOB had paid off all his loans and was one of the best customers of Bank of Ireland and AIB

#DOBvSBP MCD says there was no need to start talking about his credit. MCD says "it was irrelevant" because the SBP had "given him a clean ill of health"

MCD: But that's not good enough for DOB either...because they said SBP "invented the black and white version" of the report..

#DOBvSBP [contd] MCD:...and they claimed SBP unfairly and in a defamatory way failed to bring that to attention of readers..

McD said it effectively suggested TL had committed purgatory (by saying he only had a B&W copy of report) and that this was done on DOB's instructions

#DOBvSBP McD: So not merely is he [TL] an irresponsible journalist [in DOB's eyse] but he's also guilty of committing perjury and inventing a reason for not paying attention to a colour coded table.

#DOBvSBP McD: They [DOB] wanted him [TL] to say he had a good credit rating.

And again the answer of the two journalists is 'we gave him best credit rating…we said paid his debts, interest and was one of best customers of the BOI and AIB', etc..

#DOBvSBP McD: But that’s not good enough for DOB.

It was suggested SBP had colour version all the time and were coming into court to mislead you [jury] on this issue

#DOBvSBP McD: It’s convenient is it not that DOB was out of the witness box [when the Banking Inquiry slip was produced] and "and comes just in time to cross-examine Tom Lyons when he had never seen it before...You ask yourself: was that fair?

#DOBvSBP McD: It's very easy to make changes in court…you can suggest to anyone that they're lying though their teeth…and there's no consequence except the verdict of jury…that’s the only consequence..

#DOBvSBP McD recalls how it had been previously said that DOB got an apology from INM over the Sindo Anglo article co-written by Nick Webb and Tom Lyons..

But then it emerged he got no such apology

#DOBvSBO McD highlights how DOB pitted the Sindo article of 2012 as "an example of good editorial control", about which he took no action, against the SBP "malicious" articles of 2015.

#DOBvSBP McD: The truth of course was that James Morrisey had a vicious attack on Mr Lyons - accusing him of behaving unprofessionally and of misconduct (after the Sindo article) for not putting a specific figure to DOB

#DOBvSBP McD: You know from this documentation, the stream starts with Mr Lyons asking DOB (via JM) for details of his indebtedness [for the Sindo article].

McD: You know that. And who else knew it at that time? The recipient of that email: James Morrissey.

#DOBvSBP MCD: Mr Morrissey who has been in court here frequently.

McD: Mr Morroissey gave him [TL] a 'no comment' and Mr Morrissey did this on behalf of DOB. And I asked DOB and he said 'yes, Mr Morrissey would have told me about it'

#DOBvSBP MCD: Yet they have cheek and dishonesty...to write to his boss [Nick Webb] to say he’s falling below press standards.

MCD says the email to Nick Webb was "scandalous and vicious" and was "only capable of being written by someone who is malicious"

#DOBvSBP [contd] MCD:..because DOB never intended on telling Mr Lyons anything other than 'no comment'

#DOBvSBP MCD points out that this complaint about Tom Lyons was made on behalf of person who is 21% shareholder at INM.

MCD: How vicious to do that to a young upcoming journalist, by a man with 21% of share in the company.

#DOBvSBP MCD: What kind of contorted, evil brain does that?

[to complaint about a journalist NOT asking specific question that he never intended on answering]

#DOBvSBP MCD: And what’s worse is DOB didn’t distance himself. He said he agreed with Mr Morrissey’s complaint.

#DOBvSBP MCD: When DOB said some figures were wrong…I asked: were they materially wrong? He said 'I’m not going to answer that Mr McDowell, it's none of your business'. It's the same pattern: complete hypocrisy.

#DOBvSBP MCD: Why is this relevant?

DOB comes in here and thinks he’s just going to "wing it with loose and untrue evidence"

#DOBvSBP MCD: So he diid a quick u-turn for being exposed as a liar.

MCD claims point of saying there was a letter of apology (which never existed) was to "provide a scmokecreen to get away from a lie to you..to say he was unpreturbed by Sindo article"....

#DOBvSBP MCD claims there was "malice in that transaction" (i.e. the letter to Nick Webb about Tom Lyons)

#DOBvSBP MCD says DOB claimed in evidence that he was unaware of the PwC report and yet also claimed that the "they" on the front page of the SBP was supposed to mean HIM and the other borrowers - as opposed to the Government (which is what SBP says it means)

#DOBvSBP MCD suggested it was "ludicrous" to suggest the "they" meant anything but "Government" ("who at this stage were keeping it secret from 2008 to 2015") because it refers to people who didn’t even have the report and who couldn’t possibly publish the report

#DOBvSBP MCD said the headline: 'The files they didn't want you to see' couldn’t possibly mean 'The files Denis O'Brien doesn't want you to see" because "the story was that this was a confidential report to the Govt by PWC and it was Govt/Central Bank which was keeping it secret

#DOBvSBP McD: There's not one word of demfamation, untruth, or criticism about Denis O'Brin in these articles.

There's just the truth, that he borrowed money, that his loans were functioning and that he was paying a high rate of interest

#DOBvSBP MCD: Articles don't suggest he was insolvent or his debts exceeded his assets or that he was unable to repay his loans.

On contrary it says he was able to do all these things...and not just simply stagger from recession a wounded man but be one of banks' best customers

#DOBvSBP MCD tells jury: I defy you to find one word in the articles (which amounted to more than 6000 words) that said he was borrowed recklessly.

#DOBvSBP MCD also tells jury that an opinion piece written by Gavin Sheridan (which SBP says was about the Banking Inquiry) contained nothing which was defamatory of Denis O'Brien.

#DOBvSBP MCD also adds that it's not defamatory to say someone is facing financial pressure. Says if anyone on the jury was told they had to repay their mortgage tomorrow, they would face financial pressure and it wouldn't be defamatory to say so

#DOBvSBP MCD tells jury that defamation law, in Ireland, states that when ana article is being examined to see if it's defamatory or not, the jury is obliged to have a "reasonable reader" in their mind AND that this reader read the "entire article".

#DOBvSBP McD said this is "of huge importance" and says the jury can't flit about "like a butterfly" and talk about a 'they' here and a 'they' there"...

#DOBvSBP MCD: There was no defamation of DOB whatsoever - good, bad or indifferent.

This is an artificial case and an exercise in 'looking for a fight, spoiling for a fight..a case with no merit whatsoever.

#DOBvSBP MCD: The plain and obvious meaning of what was said about him in these articles was that he was a model borrower who repaid all his debts

#DOBvSBP MCD on Tom Lyons and Ian Kehoe:

Were they truthful/honest? Yes

Were they conscious of fact they could be sued? Yes

Were they careful on that account? Yes they were

Did they avoid libelling DOB? Yes they did

#DOBvSB MCD: Did they set out to deliberately print something about him which is untrue?

Look at them, look at them: they didn't.

#DOBvSBP MCD tells jury DOB has "a casual relationship with the truth".

MCD says DOB is not pursuing the SBP out of money "but because he wants to put down people who are decent, honourable and truthful....journalists who keep our democracy going by telling the truth"

#DOBvSBP MCD continues..."People who are well-motivated, truthful, get articles lawyered..."

MCD: Don’t fall for this phoney effort to persuade you that this man was defamed..

I’m asking you to throw this out unceremoniously.

#DOBvSBP MCD: Tell DOB to take this case and put it... where it ought to be.

@threadreaderapp unroll please. Thank you.