Thread by @broadsheet_ie

#DOBvSBP In the High Court, Mr Justice Bernard Barton has called for the jury in the defamation case taken by Denis O’Brien against the Sunday Business Post - after he charged the jury yesterday.

#DOBvSBP Judge to jury: Good morning, we’re about to send you away very shortly so you can consider your deliberations.

#DOBvSBP Judge: Yesterday we said we were all concerned, on this side, to make sure that when you go to deliberate that you do so with a full correct understanding of the law to be applied…

#DOBvSBP Counsels have made submissions and I’ve considered that.

#DOBvSBP Judge says there are “one or two issues” he wants to raise to “satisfy” his own mind that nobody took up something he said [yesterday] to mean something else.

#DOBvSBP Judge asks the jury to look at the issue paper that was given to them previously - this is a list of questions that they’ve been asked to consider as they deliberate/decide on a verdict

#DOBvSBP Judge brings the jury’s attention to the first six questions. He says the first three questions (of the 6) are subdivided while the next three questions aren’t

#DOBvSBP Judge tells jury first 3 questions are Yes/No questions and tells them it’s “absolutely accepted on all sides [DOB and SBP]” that if the jury answers ‘yes’ to any of the first 3 questions then the jury is accepting that the material published was defamatory of DOB

#DOBvSBP These three questions are (1) “Did the articles mean that the plaintiff [DOB], as one of the 22 borrowers, was among those borrowers most to blame for the destruction of the Irish banking system and the subsequent bail out?”

#DOBvSBP (2) “Did the articles mean that the plaintiff was a recipient of cheap and easy money which was in some way related to improper influence with bankers, politicians and civil servants?”

#DOBvSBP (3) “Did the articles mean that as a result of what was said about the plaintiff’s borrowings the PwC report was one which the plaintiff wished to keep secret or top secret and had been suppressed?”

#DOBvSBP Judge recalls the next 3 questions which he says are subdivided.

#DOBvSBP These questions are (4) (a) “Did the articles mean that the story of the plaintiff’s borrowings and the amount thereof was telling and disturbing?”


“4 (b) If the answer to 4 (a) is Yes, was that defamatory of the plaintiff?”

#DOBvSBP Question 5 (a) “Did the articles mean that the plaintiff was massively overstretched in November 2008?”

“5 (b) If the answer is Yes, was that defamatory of the plaintiff?”

#DOBvSBP Question 6 (a) Did the articles mean that the plaintiff faced huge financial pressure in November 2008?

6 (b) If the answer to 6 (a) is Yes, was that defamatory of the plaintiff?

#DOBvSBP Judge tells the jury the "nuance" between he first 3 and second 3 set of questions, or the "additional ingredient" that they have to decide is "if you find that questions 4/5/6 have those meanings, then the next thing you need to ask: were they defamatory of DOB?

#DOBvSBP Judge then raises the matter of the "reasonable reader" with the jury.

He says: I had made comments about reading between the lines [yesterday]…I’d gone on to describe to you what a true innuendo was..you’ve heard that mentioned in speeches by counsel...

#DOBvSBP Judge: ...And I had used the words 'this is not a case of reading between the lines, this is not a case of true innuendo'

#DOBvSBP Judge: I want to be sure that nobody in the jury has taken from what I said that the reasonable reader is looking at this article - giving the words their ordinary and natural meaning - doesn't look between the lines. That's incorrect. That's not what I'm saying

#DOBvSBPP Judge: The reasonable reader is assumed to read all the documents, they're presumed to read the whole article..so if there are implications or inferences which the RR could draw from reading between the lines that’s perfectly permissible..I just want to be clear…

#DOBvSBP Judge tells jury there's another point he wishes to make about the 'reasonable reader' in context of a claim made by DOB that a specific short piece about him in the SBP coverage on page 14 - which said he'd repaid his loans and was one of best customers of AIB & BOI...

#DOBvSBP Judge says when they're considering the articles, from the point of view of a reasonable reader, and IF they possibly think "maybe they have a tendency to injure DOB's reputation", they must ask themselves was what was said about DOB on page 14 a "sufficient antidote"?

#DOBvSBP Judge further clarifies the point he's making - asking would the page 14 material on DOB be considered something which would draw out a wasp sting.

#DOBvSBP Judge tells the jury the RR is "presumed to have read everything".

"What would the RR have made of what was said about DOB by the time you get to page 14?"

If you decide what DOB alleges is correct, is pg14 piece a "sufficient antidote"...to "neutralise that complaint"

#DOBvSBP Judge reminds jury that they only have to consider Section 26 defence (defence of fair and reasonable publication) is if they consider that the articles WERE defamatory of Denis O'Brien (and answer yes to the previous 6 questions)
irishstatutebook.ie/eli/2009/act/3…

#DOBvSBP Q7 asks if any of answers to Q 1 - 6 were Yes...then:

7 (a) Were the articles published by the defendant published in good faith and in the course or for the purposes of a discussion which was for the public benefit on a subject of public interests?

Yes or No.

#DOBvSBP 7 (b) Were the manner and extend of publication no more than were reasonably sufficient in all of the circumstances of the case?

Yes or No.

7 (c) In all of the circumstances of the case was the publication of the articles fair and reasonable?

Yes or No.

#DOBvSBP Judge said he had made a comment to the effect, when discussing this question, he used the phrase "over the top". He said this was incorrect.

Judge: Did defendant say any more than reasonably necessary for the purposes of the articles? That's the q you need to consider.

#DOBvSBP Judge tells jury they have to decide the case on ALL the evidence. But he said some of the evidence is no applicable to some parts of the case.

#DOBvSBP Judge says what happened in the correspondence between DOB's lawyers and the Sindo in April 2012 "has nothing to do with the task of the reasonable reader" and that part of the case.

But he adds this might be relevant to the Section 26 matter.

#DOBvSBP Judge then releases jury to deliberate at 12.44pm.

He tells them they could take 75-minute lunch before doing so.

He says parties would like unanimous verdict. He says, should that not happen, there is a Plan B but he's not going to say anything about that for now.

#DOBvSBP The jury has been recalled.

#DOBvSBP Foreman of jury asks judge to clarify the meaning of unanimous.

Judge: You must all reach the same verdict while answering every question.

DOBvSBP Foreman: We're still deliberating. We won't be finished by this evening.

Foreman says "we're getting mentally tired" and asks if they can stop now and come back in the morning.

Judge has asked them to come back tomorrow morning at 10.30am.