The High Court will rule this afternoon on who should pay the costs, estimated at between £1.5 and £2 million, of the 28day libel action taken by Fianna Fail TD Ms Beverley Cooper-Flynn.
The Mayo TD had sued RTE; journalist Charlie Bird and a retired farmer, Mr James Howard, of Wheaton Hall, Drogheda, Co Louth, alleging libel in a series of RTE broadcasts. On March 23rd, a jury found RTE, Mr Bird and Mr Howard had proved Ms Cooper-Flynn had advised or encouraged a number of persons to evade tax. But they also found the defendants had not proved Ms Cooper-Flynn had induced Mr Howard to evade his lawful obligation to pay tax by not availing of the tax amnesty.
They decided Ms Cooper-Flynn's reputation had not suffered material injury and she was not awarded any damages. Yesterday, when the case came before the President of the High Court, Mr Justice Morris, in relation to costs, RTE applied for its costs and also asked for the court to make an order dismissing the action.
Lengthy legal submissions were made by all parties and Mr Justice Morris said he would give judgment this afternoon.
Ms Cooper-Flynn is seeking costs from Mr Howard - who is indemnified by RTE. She is also seeking costs from RTE insofar as they related to Mr Howard and other parts of her costs, including those relating to that part of the trial which addressed the legitimacy of CMI investment products. Mr Howard claims he is entitled to his costs in the proceedings.
Mr Garrett Cooney SC, for Ms Cooper-Flynn, said, that while normally "costs follow the event", there were particular circumstances to justify the judge departing from the usual practice.
There were two matters which constituted special reasons - the answer which the jury gave to the question relating to Mr Howard and the manner in which RTE and Mr Bird had conducted the defence of the action.
Effectively, the defendants had pleaded justification but the jury had found what was said in relation to Mr Howard was not true, counsel said. To that extent, Ms Cooper-Flynn had succeeded. That was perhaps the most important issue in the case.
Mr Kevin Feeney SC, for RTE and Mr Bird, said he was not aware of any case, where a claimant had failed to get damages and lost a claim, in which an order for costs was not made in favour of a defendant.
Ms Cooper-Flynn had claimed her reputation was damaged as a result of what was broadcast. The jury found the defendants had established she had advised persons to evade tax.
From the word go, Ms Cooper-Flynn was seeking to assert a reputation which was not to be a correct reputation, counsel said. The jury found there was no material damage to her reputation and the costs orders must recognise that Ms CooperFlynn during the trial had given testimony on oath which was disbelieved.
The finding of the jury was such that she should not have taken the case because she was averring a reputation she knew did not exist. The writ should not have been issued and the claim had failed. The court in its costs order had to recognise that the jury's findings meant Ms Cooper-Flynn had persisted in giving false testimony.
The plaintiff had sought an apology which would contain statements which the jury had found to be false statements - that she had a reputation that she would never involve herself in advising tax evasion. The jury had not made an award.
Mr Paul O'Higgins SC, for Mr Howard, said judgment had to be entered in his client's favour. His client's defence was not just that he had dealt with Ms Cooper-Flynn in the way alleged but also that she had suffered no damage to her reputation.