A High Court jury will return to court on Friday to resume considering their verdict in the action by Denis O’Brien alleging he was defamed in articles published in the Sunday Business Post in 2015.
Mr O’Brien is suing Post Publications Ltd, publisher of the newspaper, over articles published over six pages in the newspaper of March 15th, 2015.
The articles named Mr O’Brien as among the 22 biggest borrowers from Irish banks in 2008.
Their focus was a confidential PwC report given to the government in November 2008 which looked at the exposure of Ireland’s banks in 2008.
Journalist Tom Lyons got a copy of the report from a source in early 2015 and shredded it shortly after the articles were published to protect the source.
Mr O’Brien claims the articles, including articles headlined “22 men and €26 billion” and “The Gang of 22” wrongly meant he was among a “gang” of 22 borrowers who “wrecked the country” and that they defamed him and injured his reputation. He also alleged malicious publication and, in that context, sought punitive damages.
‘Fair and reasonable’
The defendant denies the words meant what he alleged, denied defamation and malicious publication, and has pleaded “fair and reasonable publication on a matter of public interest”.
The jury has heard evidence from Mr O’Brien, Mr Lyons and former Sunday Business Post editor Ian Kehoe during the hearing.
On the 16th day of the case on Thursday, the 11 jurors - eight men and three women - began considering their verdict at 12.45pm.
At 5pm, the jury foreman asked Mr Justice Bernard Barton could he clarify what was meant by unanimous. The judge said it meant all 11 of them must answer each question the same way.
The foreman said the jury are still deliberating but were mentally tired and wanted to go home and resume considering their verdict tomorrow.
Mr Justice Barton said they could do that and he sent them away to return to court at 10.30am on Friday.
Nine questions
The jury have to consider nine questions.
Those ask (1) whether the articles meant Mr O’Brien, as one of 22 borrowers, was among those borrowers most to blame for the destruction of the Irish banking system and the subsequent bail out; and (2) was a recipient of cheap and easy money which was in some way related to improper influence with bankers, politicians and civil servants.
They also ask (3) did the articles mean, as a result of what was said about Mr O’Brien’s borrowings, the PwC report was one which he wished to keep secret or top secret and had been suppressed and that (4) the story of Mr O’Brien’s borrowings and the amount thereof was telling and disturbing.
Question 5 and 6 ask whether the articles meant Mr O’Brien was “massively overstretched” and “faced huge financial pressure” in November 2008. If the jury answer Yes to either or both of those, they must consider was that defamatory.
If they answer No to the first six questions, that is the end of the case.
If they answer Yes to any of the six, they go on to question 7, which asks whether the SBP published the articles in good faith and in the course of, or for the purposes of, a discussion which was for the public benefit on a subject of public interest.
If they answer Yes, they must decide whether the manner and extent of publication were, in all the circumstances of the case no more than reasonably sufficient and fair and reasonable.
If they find fair and reasonable publication, that is the end of the case.
If not, they go on to question 8 which asks them to assess damages in which context they will consider question 9, whether the defendant was motivated by malice in publishing the articles. If they find it was, they will assess punitive damages.
