Thread by @broadsheet_ie

#DOBvSBP Mr Justice Bernard Barton has this morning started charging the jury in Denis O'Brien's defamation case against the Sunday Business Post in the High Court.

#DOBvSBP O'Brien claims articles published March 15, 2015, about a 2008 Govt-commissioned but unpublished PwC report into Ireland's top 22 borrowers were defamatory of him.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 Judge told jury they'd be "relieved" to know he doesn't intend to exercise his right to comment on evidence or speeches made by counsel for either plaintiff or defendant...

He said reason for this is the case depends on the SBP articles and the meanings of the articles

#DOBvSBP Judge tells the jury the "central piece of evidence is written" - the SBP articles - and it's the jury's job to decide their meaning.

He tells the jury they might see this as an "exit mechanism" for the judge but he says "no such exit mechanism is available to me"

#DOBvSBP Judge says he has responsibility to make sure a fair trial takes place and that the jury is properly directed on the law.

#DOBvSBP Judge tells jury he has no view about himself as a judge. Says judges make mistakes - which is why there is a Court of Appeal and Supreme Court.

He said jury can ask questions or ask for clarity on a matter after he is finished charging them.

#DOBvSBP Judge: The object of the exercise is to ensure there's a fair verdict in the case.

#DOBvSBP Judge: This case has gone on for a considerable period of time. It's not a surprise. Denis O'Brien considers this to be a very serious matter indeed.

#DOBvSBP Judge: He [Denis O'Brien] could have brought a case to the Circuit Court.

A Circuit Court has limited power, if it decides someone is defamed, there is a limit on what can be awarded.

Also a person who goes to the Circuit Court doesn't get a jury

#DOBvSBP Judge: If the person who says 'I think I’ve been defamed and I want that decision of whether or not I have been defamed decided by a jury' - their only choice is to come to High Court.

That's what Denis O'Brien has done.

#DOBvSBP Judge: The seriousness of this in his [DOB's] perspective couldn’t have escaped you.

He’s an extremely well-known man, there’s probably not an adult in Ireland who hasn't heard about him…He has extensive business interests..in 45 countries across the world…

#DOBvSBP Judge: He's sat here every single day of the trial and looked up at you...coming here to you for your verdict.

That’s how serious he considers this matter.

#DOBvSBP Judge tells the jury that formed editor of the SBP Ian Kehoe and former business editor of the SBP Tom Lyons have also been in court every single day.

He says: The Sunday Business Post takes an equally serious view of the case that has been brought against it

#DOBvSBP Judge raises 'equality before the law'.

Ultimately he explains this means a "poor man" in the "most diminished situation in society, economically and socially" and Denis O'Brien who has "undoubted economic power & social standing" must be treated the same before the law

#DOBvSBP Judge says the SBP is a national newspaper published inside and outside Ireland.

He says SBP is also entitled to 'equality before the law'

Judge says: "So the two parties in this case have got to be treated equally."

#DOBvSBP Judge: What did you think of Denis O'Brien as a witness? Did he impress you? Did you think he gave you truthful evidence?

The same questions must be asked of Ian Kehoe and Tom Lyons

#DOBvSBP Judge: You have to decide this case on the evidence that you heard…not anything extraneous.

That doesn’t involve leading common sense…at the door of the courtroom

You are in every respect a representation of society and that is critically important in defamation case

#DOBvSBP Judge: McDowell (for SBP) said to you you should 'throw this case out on its backside' because there's nothing defamatory about these articles.

That's the complete opposite to Denis O'Brien's view. He says 'these are defamatory of me'...It’s your job to resolve that…

#DOBvSBP Judge holds up a blue copy of the constitution to the jury and tells them that this contains the power "we gave to each other".

He says it recites some of the fundamental rights of Ireland's citizens

#DOBvSBP Judge tells jury Denis O'Brien "has a good name...he has a good reputation and the defendants [SBP] do not challenge that..."

The defendants’ case there is just no defamation. They simply say: There’s no defamation..

#DOBvSBP Judge to jury: Has his [DOB] good name been injured?

Has what’s been published in these articles injured his reputation?

#DOBvSBP Judge: If you start off with a good name/reputation and that’s not challenged, to succeed in an action of defamation, you don't have to prove you suffered an actual loss.

The law presumes that if the statement is defamatory then damages is presumed to flow from that.

#DOBvSBP Judge: You didn’t hear DOB in one word of evidence say that he suffered financial loss...he doesn't have to...

The law presumes that IF the articles were defamatory and bore the meanings that DOB says they bear…then the law presumes that loss flows/damage flows...

#DOBvSBP Judge: There’s another constitutional right in play in this case: The right to free speech.

And that’s the right the defendants are saying they've exercised.

Judge reads from the constitution.

#DOBvSBP Judge tells jury a "balance has to be struck between constitutional rights and the interests of the common good in the interests of public policy"

#DOBvSBP Judge tells the jury that the books of documents they each have - containing statement of claim, etc - "set out the issues or the battleground between the two parties"...

#DOBvSBP Judge reminds jury that the SBP is not relying on the defence of truth to meet Denis O'Brien's claim and they're not seeking to rely on the defence of honest opinion either.

Says they're saying the articles do NOT mean what DOB says they mean.

#DOBvSBP Judge tells jury that the law has provided a defence to a defendant who is sued in circumstances such as these.

It's the "defence of fair and reasonable publication"

irishstatutebook.ie/eli/2009/act/3…

Judge says he'll return to this

#DOBvSBP Judge tells jury if they agree with DOB's interpretation of the articles' meanings...then they will move further down their issue paper [a set of questions which have been given to the jury to consider as part of their deliberations]

#DOBvSBP Judge tells jury the SBP has elected to defend itself on two grounds IF the jury does find the articles or any of the articles mean what DOB says they mean.

Judge explains that this is why the issue paper "follows a chronology" or "intentional pattern".

#DOBvSBP Judge adds: You will only come to the defence of fair and reasonable publication only if you decide that any of the articles have any of those [DOB] meanings.

#DOBvSBP Judge tells jury that "whether or not the meaning that DOB contends for might be applied to other members of the group of 22 [borrowers] or gang of 22, it's irrelevant. You are not concerned with that".

#DOBvSBP Judge reminds jury about how the statue of justice has her back to the public and hold a sword in one hand and a scale in another.

He says: If the scales are equal in a case like this then the benefit has to be given to defendant [SBP].

#DOBvSBP Judge tells jury that DOB carries the burden to establish - on the balance of probabilities - the case that he makes

#DOBvSBP Judge reads to jury definition of “defamatory statement” under Defamatory Act 2009.

He reads: A “defamatory statement” means a statement that tends to injure....

Judge stops and says word 'tends' is "extremely important in understanding what we're talking about"

#DOBvSBP Judge says what is relevant is not what DOB thinks about the articles...
he doesn't win by coming her and saying me and my fiends thought I was defamed by these articles..

#DOBvSBP Judge continues reading from Act..

A “defamatory statement” means a statement that tends to injure a person’s reputation in the eyes of reasonable members of society’

That’s what he has to establish…

#DOBvSBP Judge asks jury to remember the SBP articles were written on March 15, 2015.

He says Banking Inquiry was only beginning.

He says "what needs to be considered is the circumstances of the case as existed at the time"..

#DOBvSBP Judge: Test you have to apply is what was the reasonable reading of those articles in March 2015?

What impression would be conveyed to the reasonable reader by those articles?

Did those articles convey to the reasonable reader any of the meanings contended for by DOB?

#DOBvSBP Judge: What impression would the articles convey to a person giving the words employed by Tom Lyons and Ian Kehoe an ordinary and natural meaning?

#DOBvSBP Judge tells jury a reasonable reader is not someone who would have sat down for 3 weeks and have these articles parsed over like the court has done.

He says RR is somebody who bought the SBP on a Sunday and sat down after lunch or breakfast and read the paper

#DOBvSBP Judge tells jury to ignore an article that was on a page given them to earlier in proceedings - this is the front page of Sindo from April 2012 which had the 'Anglo buccaneer' headline

#DOBvSBP ...in the masthead of the paper

#DOBvSBP The frontpage contains an article on the left of the front page with the headline: Act now on tribunal's findings, say Labour

Judge tells jury there's a reference to DOB in the article but tells them it has "nothing whatsoever to do with this case"

#DOBvSBP Judge tells jury that this article about a tribunal on the front page of the Sindo in April 2012 "must not influence you in any way at all"

#DOBvSBP Denis O'Brien has been in the courtroom since shortly after lunch. He wasn't present before lunch.

#DOBvSBP Judge is now taking the jury through the issue paper [of questions]