It was regrettable that the "guerrilla warfare" the legal teams in the Prionsias De Rossa libel action were engaged in could not be avoided, the judge in the case said. Mr Justice Carney made his comments when the jury returned after being out for almost 25 minutes, to allow legal argument to take place over the admissibility of a newspaper article.
Mr Justice Carney pointed out that this was the third time this case had been run. Because it was "round three" he had rather hoped that each side could present its case in the presence of the jury "and there could not be a necessity for trench warfare and guerrilla warfare in the absence of the jury".
But he had perhaps been naive. There was a necessity and he could not avoid it.
The judge said he had "fired a shot across counsels' bows" a couple of weeks ago and didn't want there to be guerrilla warfare. Just because it was coming from one side at the moment did not mean it would not come from the other.
A great deal of material would be presented to the jury and his policy was that this case was to be trial by jury. The judge said he did not want to exclude material on the grounds that it was irrelevant.
"The issue is was Mr De Rossa unlawfully defamed in the Sunday Independent and if so how much money should he get," said Mr Justice Carney.
He told the jury they had been offered a history of the Soviet Union. Maybe democratic centralism would be of great importance to them, but it wasn't to him. He didn't intend to indulge himself, however, because this was trial by jury.
Following the intervention of Mr Sean Ryan SC, for Mr De Rossa, who objected to the jury receiving copies of Irish Times articles which included the text of the so-called Moscow letter, Mr Justice Carney asked that the copies which the jury had already received be handed back.
He said he had made a ruling the previous day on the admissibility of newspaper articles on the basis of common sense as he saw it and not on rules of evidence. He now had to abandon common sense and go back to the rules of evidence.
The judge said he was not going to keep sending the jury out. The issue was whether the Sunday Independent article had unlawfully defamed Mr De Rossa. The jury would decide at the end of the day the relevance of what would be presented to them by both sides in the case.