THE CIRCUIT Court has reserved judgment in a case in which journalist Sam Smyth has said he did not call Michael Lowry TD a thief but did believe he was a liar and a tax cheat.
Michael Giblin SC, for Mr Lowry, told the court the journalist was involved in a breach of process and had included matters in his affidavit so they could be aired in the media. He said the affidavit illustrated Smyth’s “malice” towards his client.
Judge Margaret Heneghan heard submissions from counsel for both parties in a case where Mr Lowry is seeking a summary order under the 2009 Defamation Act directing Mr Smyth to publish corrections of allegedly defamatory statements.
Two statements were at issue. In May 2010 Mr Smyth wrote an article in the Irish Independentin which he said the value of property transactions being investigated by the Moriarty tribunal and "involving Mr Lowry" was about £5 million (€5.9 million).
This was a reference to transactions in the UK the tribunal is investigating to see if they involve any link between Mr Lowry and businessman Denis O’Brien.
In June Mr Smyth appeared on the Tonight With Vincent Browneprogramme on TV3 where he discussed the origins of the McCracken and Moriarty tribunals.
In the course of the discussion, Mr Smyth said: “But the first that we caught sort on video with hand in till was Michael Lowry.” He later said he was referring to Mr Lowry being engaged in tax fraud.
Mr Lowry said the comment was understood to mean that he was a thief, a corrupt politician, was unfit to be a TD and was dishonest and untrustworthy. Thief apart, he made identical claims about the Irish Independentarticle.
Mr Lowry had been “greatly distressed” by the false allegations. “I am not a thief and I have never been a thief.”
He had topped the poll in north Tipperary three times since the McCracken tribunal.
Mr Smyth, in his affidavit, outlined how Mr Lowry had claimed in 1995 that his tax affairs were in order. In November 1996 he resigned as a government minister after Mr Smyth published an article saying Mr Lowry’s home had been refurbished by Dunnes Stores and the expenditure treated in the Dunnes books as work on one of its outlets.
In a statement to the Dáil in 1996 Mr Lowry said that someone who had wanted to hide income would put it offshore. A year later, the McCracken tribunal reported that Mr Lowry had money in two offshore accounts opened to receive money from Dunnes Stores, and had a third into which he put money and about which Dunnes Stores knew nothing.
Mr Justice McCracken, referring to Mr Lowry’s Dáil statement and the tribunal’s subsequent findings, described his statement as “astonishing”.
In his 14-page affidavit Mr Smyth outlined the findings of the McCracken tribunal against Mr Lowry and matters to do with the subsequent inquiries of the Moriarty tribunal, which has not yet reported.
Mr Smyth said his words on TV3 related to the Moriarty tribunal’s origins in Mr Lowry’s “wholesale tax evasion” and the fact that had he “told lies about his business and financial affairs”.
Although he had not made allegations about Mr Lowry’s fitness for office “the only conclusion that one could reasonably draw from what has been discovered about leads inevitably to the conclusion that he is indeed corrupt, dishonest, untrustworthy and both unfit and unsuitable to be a minister and a TD.”
Eoin McCullough SC, for Mr Smyth, said he accepted the words spoken on the TV3 programme were defamatory but their meaning was that Mr Lowry was a tax fraud and not that he was a thief. The defence was that the statement was true.
He said he did not agree the Irish Independentarticle was defamatory. It was a simple statement of fact.
Mr Giblin said it was established law that the reports of tribunals of inquiry could not be used as evidence in Irish courts.
The vast bulk of Mr Smyth’s affidavit comprised hearsay and evidence to do with tribunals which was not admissible. “The defendant has delivered a blizzard of comments made by third parties.”
He said his client had settled with the Revenue in April 2007 and now had a tax certificate. The Revenue had not taken proceedings. Mr Lowry did not accept the McCracken findings or that he had lied to the Dáil.
Mr McCullough said hearsay was admissible in interlocutory proceedings and it was not necessary to rely on the tribunals to contest Mr Lowry’s claims. The court’s role was to decide if Mr Smyth had an arguable defence and the standard involved was not a high one. If the matter went to future hearings he would decide then who would be called.
