The Supreme Court has reserved judgment in the appeal taken by Fianna Fáil TD Ms Beverley Cooper-Flynn's against the ruling in her libel action against RTÉ.
Earlier today, Fianna Fáil TD, Ms Beverly Cooper-Flynn's appeal in the case of her failed libel action against RTE is based on the "false claim" that she has a reputation to defend, the Supreme Court heard today.
Counsel for RTE, Mr Kevin Feeney, today said if Ms Cooper-Flynn "had identified her true reputation" as someone who encouraged tax evasion, then the case would not now be before the Court.
Mr Feeney said that despite her legal team's concern about Mr Justice Morris's conduct of the libel hearing three years ago, Ms Cooper-Flynn was not the victim of a "substantial miscarriage of justice" and therefore a retrial should not be ordered.
The Mayo TD sued RTE and its reporter Charlie Bird over broadcasts that claimed she had encouraged customers to avoid paying tax when they bought National Irish Bank savings products from her.
Ms Cooper-Flynn claimed the reports were false and injurious to her reputation. She also sued Co Louth farmer, Mr James Howard, for defamation after he told RTE she had advised him not to pay tax on the off-shore savings scheme he bought.
The jury found Mr Howard's claim could not be substantiated but that Ms Cooper-Flynn had encouraged others to evade tax. As a consequence, the RTE reports and Mr Howard's claim had not damaged Ms Cooper-Flynn's reputation, the jury found.
At the Supreme Court yesterday Mr Eoin McCulllough SC, argued Mr Justice Morris's directions to the jury as to what issues should be considered in arriving at their verdict was "fundamentally flawed".
Mr McCullough said the judge had directed the jury to consider four questions which had not been agreed by the legal teams and erred in the particular system of majority voting he allowed. Counsel also criticised Mr Justice Morris's decision to redirect the jury following objections from counsel for RTE to the original charge.
He also objected to admission into evidence of a letter from an investment manager in National Irish Bank's Financial Advisory Services Division referring to "hot" money. Ms Cooper-Flynn worked as a financial adviser in the department at the time the letter was circulated but it had been established that she had not seen it.
Mr Feeney for RTE said the plaintiff's lawyers had not objected to Mr Justice Morris's directions at the time of the hearing and could not now seek a retrial because they did not like the jury's findings.
He also urged the court to consider the cost implication of allowing a retrial under those circumstances.
He said "fairness required a recharge of the jury" in the original case and that Mr Justice Morris instructed the jury to make its findings based on the evidence before it and it could "take what it likes" from his redirection.
In relation to the NIB letter, Mr Feeney argued its author, Mr Patrick Cooney had been cross-examined by all sides. It established the culture at the NIB department at which Ms Cooper-Flynn worked and was therefore relevant to the case, he said.
Mr Paul O'Higgins SC for Mr Howard, supported Mr Feeney's contention in relation to the letter. He said it was "certainly real evidence of matters surrounding the circumstances under which policies were sold at NIB".
He also pointed out the jury were aware the letter had not been seen Ms Cooper-Flynn and that they had heard that matters covered in it - including the reference to "hot money" - would have been told to all department staff at their weekly meetings.
He said Ms Cooper-Flynn should bear her own and Mr Howard's costs because it was insufficient to prove Mr Howard's claim was wrong. It was necessary to prove the claim was damaging to reputation, he argued.
If the plaintiff wanted a declaration from Mr Howard then a court was no the place to seek it, Mr O'Higgins added.
In closing, Mr McCullough argued that the respective legal teams had erred in relation to discussions over instructions to the jury. He said no-one is entitled to consent to an improper process in a jury's findings and that failure to object did not constitute consent.
Chief Justice, Mr Justice Keane, presiding with Mrs Justice Denham, Mrs Justice McGuinness, Mr Justice Geoghegan and Mr Justice Fennelly reserved judgment.