Court report - Chief Justice's judgment: The Fianna Fáil TD, Ms Beverley Cooper-Flynn, is facing a €2 million-plus legal bill after the Supreme Court yesterday unanimously rejected her appeal against the outcome of her failed High Court action alleging libel in a series of RTÉ broadcasts.
The six broadcasts in 1998 included claims that the Co Mayo deputy had encouraged or assisted a number of persons in tax evasion.
Ms Cooper-Flynn was in court yesterday when each of the five Supreme Court judges handed down individual judgments rejecting her appeal. The hearing lasted less than 10 minutes.
In addition to finding that a misdirection by the trial judge had resulted in no substantial miscarriage of justice, the Chief Justice, Mr Justice Keane, noted that an English law lord, Lord Bingham, had, in a libel case, stated that "the tort of defamation protects those whose reputations have been unlawfully injured. It affords little or no protection to those who have, or deserve to have, no reputation deserving of legal protection."
"I am satisfied the same considerations apply in this case," Mr Justice Keane said.
Today the court will decide who pays the costs of the two-day appeal, but Ms Cooper-Flynn is already facing a €2 million bill arising from the 28-day action in the High Court. Ms Cooper-Flynn (36), a former financial adviser with National Irish Bank, had sued RTÉ, journalist Charlie Bird and a retired farmer, Mr James Howard.
She claimed she was libelled in a series of RTÉ broadcasts of June and July 1998 which, she claimed, meant she had instigated a scheme the object of which was tax evasion. In some of the broadcasts, Mr Bird had interviewed Mr Howard (71), of Acorn Way, Wheaton Hall, Drogheda.
In response to five questions, the jury decided (Question 1) the defendants had not proved that Ms Cooper-Flynn had induced Mr Howard to evade his lawful obligation to pay tax but had proved (Question 2) that she had advised or encouraged certain other persons to evade tax. It also found (Question 3) that her reputation had suffered no material injury through the material published by RTÉ about Mr Howard and (Questions 4 and 5) awarded no damages.
A central issue during the Supreme Court appeal was whether the trial judge had misdirected the jury on the issue of majority voting and, if so, whether consequences should arise. Yesterday, all five Supreme Court judges found that, while the trial judge had misdirected the jury, no substantial wrong or miscarriage of justice had resulted which would justify a new trial.
Ms Cooper-Flynn relied on four grounds of appeal. The first was that the trial judge wrongly allowed into evidence a "gravely prejudicial" document, a memorandum of July 30th, 1990, signed by Mr Patrick Cooney, then in charge of the Financial Advice and Services Division of NIB of which division Ms Cooper-Flynn was a member.
She also argued the trial judge had wrongly formulated a question for the jury and this had wrongly allowed Mr Howard, in support of his plea of justification, to rely on the claim that Ms Cooper-Flynn had advised or encouraged other persons to evade tax. The third ground related to the trial judge's charge and re-charge to the jury. Ms Cooper-Flynn claimed that was unfair and prejudicial.
The fourth ground was that the trial judge wrongly directed the jury on the issue of majority voting in that he had told the jury, where there was a majority of them in favour of Ms Cooper-Flynn on question one, that all 12 members of the jury should go on to consider Question 3. Only those jurors who found in her favour on Question 1 should have been allowed consider Question 3, she argued.
The Chief Justice, Mr Justice Keane, said the "sting" of the alleged libel was that Ms Cooper-Flynn had advised one or more customers, or potential customers, to evade their tax obligations by concealing money in particular investment portfolios. The jury found that claim was true in the case of one or more of those customers.
Court rules provided that a new trial should not be granted on the ground of misdirection or the improper admission or rejection of evidence unless the Supreme Court took the view that some substantial wrong or miscarriage was thereby occasioned in the trial. In this case, the "only significant anomaly" that might have resulted from the directions of the trial judge on majority voting would have been if a differently composed majority of the jury had answered Question 3 (whether Ms Cooper-Flynn's reputation was damaged) in favour of her. That did not happen.
