Lawyers for businessman Dermot Desmond have argued Nobel laureate economist Joseph Stiglitz should not be permitted to provide expert evidence for The Irish Times in Mr Desmond’s defamation action against the newspaper.
The High Court heard Professor Stiglitz has prepared a report which deals, among other things, with The Irish Times’ coverage in 2016 of the so-called Panama Papers, based on details within 11.5 million documents leaked from the Panamanian law firm Mossack Fonseca that contained financial information about offshore tax entities.
The information was leaked to the German newspaper Süddeutsche Zeitung and shared with The Irish Times and other media outlets around the world through the US-based International Consortium of Investigative Journalists.
On Thursday, during a pre-trial application on behalf of Mr Desmond, Mr Justice Alexander Owens heard Prof Stiglitz’s report considered the Panama Papers, the Irish Times coverage of those, and issues including the scope and effects of the offshore financial system.
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The report sets out Prof Stiglitz’s opinion that the “brief” reporting on Mr Desmond in an Irish Times article of April 7th, 2016 supported the public interest.
Having heard arguments from both sides, the judge will rule on a later date whether Prof Stiglitz’s report is admissible and if he can give expert evidence, including his opinion whether the reporting supported the public interest.
Mr Desmond initiated proceedings against The Irish Times in July 2016 over an article published on April 7th that year relating to the Panama papers. He is seeking damages, claiming that article, by itself, and in the context of earlier articles concerning the release of the Panama Papers, defamed him.
Among various claims, he claims the article wrongly meant there was something improper about the manner in which he organised his financial affairs. He also alleges breach of privacy and breach of confidence.
The Irish Times denies the claims. It denies defamation and denies the articles mean what Mr Desmond alleges. It has pleaded, among other defences, the article was published in good faith, in the course of, and for the purpose of, a discussion of a subject of public interest, namely the growth of offshore tax and regulatory havens.
On Thursday, Jim O’Callaghan SC, with Ray Ryan BL, for Mr Desmond said his side brought a pre-trial application in November 2022 to be provided with Prof Stiglitz’s report and to have his evidence deemed inadmissible.
Having since been given the report by The Irish Times, it was “even more necessary” to have Prof Stiglitz’s evidence deemed inadmissible, counsel said. The evidence is inadmissible on grounds of irrelevancy, he submitted.
Prof Stiglitz wants to give his opinion the publication concerned a matter of public interest but the test for that is not subjective but objective and a matter for a court after hearing from Mr Desmond and the journalist who wrote the article, he said.
Prof Stiglitz has no expertise concerning what is in the public interest in Ireland and one does not need to be an economist to understand the issues, he said.
Prof Stiglitz’s evidence is also inadmissible as “blatantly partial and biased” and lacking the objectivity of an expert witness, counsel submitted. In his report, Prof Stiglitz referred to resigning from a committee set up by the Panamanian government to improve transparency because of his concern about the government’s commitment in that regard, counsel outlined.
If the judge decided Prof Stiglitz’s evidence was admissible, it should be ruled out as not reasonably required to determine whether the publication was defamatory or involved fair and reasonable publication on a matter in the public interest, counsel submitted. It should also be excluded on grounds its probative value for a jury will be far outweighed by its prejudicial effect for Mr Desmond, he added.
Michael O’Higgins SC, with John Maher BL, for The Irish Times, argued Prof Stiglitz’s report contains evidence relevant to the matters in dispute and would assist the jury in providing context for the article.
There was no suggestion in the article of any wrongdoing by Mr Desmond, counsel said.
The primary position adopted by The Irish Times is there was no defamation, he said. If that position failed, a jury would have to consider whether there was a defence, including a public interest defence.
His client’s case was this was a “careful and responsible” contribution to a discussion on matter of general public importance, the creation of stateless tax havens and the growth of a global financial system that creates a system of tax avoidance.
Tax avoidance is not a crime but excessive levels of it threaten the funding and ultimately the financial viability of sovereign states and there is a public interest in informing the public about the scale of these activities, he said.
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