Fianna Fáil TD, Ms Beverley Cooper-Flynn should not win her Supreme Court appeal because of any "technical matters", counsel for RTÉ and journalist Charlie Bird urged yesterday.
Even if any of the "technical matters" urged in support of the appeal were found acceptable by the court, no overriding or overall injustice had been done to the Mayo TD, it was argued. The court should disregard any legal or factual misdirection to the jury unless it led to a substantial miscarriage of justice.
That did not happen in the case of Ms Cooper-Flynn, Mr Kevin Feeney SC argued.
In asking the court to overturn the High Court decision in her case in which she had alleged libel against RTÉ, Charlie Bird and retired farmer Mr James Howard, Ms Cooper-Flynn was seeking to sidestep the jury's finding that she had encouraged others to evade tax, Mr Feeney submitted. That was important in a case which was about reputation.
Mr Feeney said Ms Cooper- Flynn's counsel at the trial had agreed with a procedure for majority voting by the jury and that Ms Cooper-Flynn was now arguing the procedure should have been different just because she did not like the result. This was "inherently unjust" and should not be permitted by the Supreme Court.
Counsel was dealing with arguments on behalf of Ms Cooper Flynn that her appeal should be allowed on grounds that the trial judge misdirected the jury on the law regarding the reaching of majority verdicts in civil cases.
Mr Feeney, whose submissions concerning the alleged misdirection were endorsed by Mr Paul O'Higgins SC, for Mr Howard, said there was no doubt that the issue as to how the jury should vote by majority was canvassed before the judge by counsel for both sides and considered by all the parties.
It was clear beyond doubt that at least nine jurors had found that Ms Cooper-Flynn had advised or encouraged a number of persons to evade tax, Mr Feeney said. In those circumstances, no miscarriage of justice arose and no substantial wrong was done requiring the Supreme Court to intervene.
It was very significant that counsel for Ms Cooper-Flynn agreed with the approach adopted by the trial judge on majority voting, Mr Feeney said.
He urged the Supreme Court to note that civil proceedings were entirely different from criminal proceedings. If parties to a civil action agreed on a procedure to determine the case, the existence of provisions on majority voting did not alter that situation.
The basis on which the jury was asked to decide the question was one with which all parties were content.
For Ms Cooper-Flynn to argue otherwise now was to disregard the approach the parties had adopted, counsel said. What she was saying, now she knew the result of the jury decision, was that she wanted it decided otherwise. That was inherently unjust.
This was a situation of a "double bet", counsel said. It could not be the case that both sides could identify the method for reaching a decision and then one side could wait for the decision and afterwards come back and seek a different outcome.
In his submissions, Mr O'Higgins urged the court to accept that no substantial wrong was done to Ms Cooper-Flynn as a result of the directions on majority voting. When the jury's decisions on the questions it was considering were examined, it was clear that a majority of that jury had taken the view that no material damage was done to Ms Cooper-Flynn's reputation.