The long road of litigation is winding ahead into the far distance for former Taoiseach Albert Reynolds, and along the way has taken many twists and turns. What started as a writ for libel has now mushroomed into a fight by the newspaper for a change in English law to extend press freedom. The legal costs for this litigation were estimated at around £1 million in 1996 and the meter is still running as appeals have continued since, and a retrial looms. The case has involved months of legal argument in courtrooms as both sides fight on. It has become a battle of the Titans, both sides prepared to take each issue on to the highest appeal courts: Mr Reynolds for the right to vindicate his reputation; the Sunday Times for the right to publish. And it is not over yet.
This week, an appeal by the Sunday Times concluded in the House of Lords - the highest appeal court in England and Wales. The fact that the newspaper went to the law lords to argue for a definition in law on qualified privilege, and that Mr Reynolds's lawyers were there to put their case against it, is an illustration of how entrenched the sides have become.
Mr Reynolds's lawyers rejected the Sunday Times's case that there should be qualified privilege in the context of political discussion regardless of the status, source and nature of the defamatory information given.
It is the latest of the courtroom battles which have sprung from the original trial. It all started in November 1994 when an article appeared in the Sunday Times at the time the Fianna Fail-Labour coalition collapsed and Mr Reynolds resigned as Taoiseach. The article, in the newspaper's English, Scottish and Welsh editions, alleged that Mr Reynolds had misled and, in effect, lied to the Dail.
At the trial which began in October 1996, the jury found that Mr Reynolds was libelled. It found against the newspaper on the issue of justification but that there was no malice in the coverage.
The Sunday Times had defended the article on the grounds that it was justified by the facts and that it was covered by qualified privilege because it dealt with matters of public interest and political controversy.
In what has now become a memorable decision, the jury awarded Mr Reynolds zero damages but this was later changed by the judge to one penny.
The trial had taken five weeks and two days. The total cost was estimated at over £1 million stg.
In November 1996, after the trial, the judge ruled provisionally that Mr Reynolds might not have to pay the Sunday Times's £200,000 legal preparation costs. Soon after, the newspaper announced it would appeal the decision as it raised very important points of law.
At the same time, in an unprecedented move, the newspaper began its test case that it was justified in printing the article as it had qualified privilege.
Mr Justice French, the trial judge, ruled against the newspaper's defence of qualified privilege stating that he was wary of acting as a judicial legislator.
"The law is yet unclear and so to hold in favour of the Sunday Times would be to widen the boundaries of qualified privilege and there is no clear guidance in favour of doing that," the judge said.
It was this ruling that was the first step to the House of Lords.
As a result, Mr Justice French decided that Mr Reynolds should only pay the newspaper's legal costs from the date he rejected the £5,005 it offered before the trial. His legal bill was estimated then to be £800,000.
A month later in December 1996, Mr Reynolds decided to appeal the zero damages award and sought a retrial. In the manner of the courts, the appeal did not begin until June 1998. Before three judges of the Court of Appeal in London, Mr Reynolds challenged the outcome of the libel trial. At the same time, the Sunday Times brought its appeal on the qualified privilege issue. The arguments took seven days in court.
less than a month later on July 8th, the Court of Appeal gave its judgment and granted Mr Reynolds a retrial on the grounds that the trial judge had misdirected the jury. A jubilant Mr Reynolds walked out of court saying that he had found truth and justice.
The Sunday Times, however, lost its appeal that it had qualified privilege.
This led to its appeal in the House of Lords which, if the law lords agree with the newspaper's arguments, would change the law in England and Wales. The hearing took another five days. Their decision is expected in October.
It will not be until then that the retrial can be put into the court lists for hearing. As the lists are lengthy it is likely that the retrial will not have a date for hearing until this time next year.
The case will begin all over again. As Lord Steyne, one of the five law lords put it at the appeal, procedurally, in the retrial they would be going back to the position they were in on the day before the first trial began. The vagaries of court cases are many and there are always surprises. One option for the future is that the parties could settle, but on past history it does not seem a likely outcome.
If the law lords agree with the Sunday Times's arguments and give a definition of qualified privilege, the newspaper will still presumably have to argue to the new judge and jury that the definition has relevance to their case. However, the Sunday Times would regard it as giving them a very strong defence to argue and it would doubtless be used by other newspapers in libel cases.
The stances to be taken on issues like justification and malice will no doubt be decided upon as the parties prepare their cases. Whatever the outcome of a retrial, presuming it goes ahead, the road would have been long and hard for everybody concerned. Unless, of course, that still is not the end. Could there be even more appeals after that? Meanwhile, there is the money. Will Mr Reynolds be awarded damages this time, or will he lose the case? And this inevitably leads to the question of who will end up paying the massive legal costs - which will literally run into millions of pounds by the time it is all over.
