BBC granted time to consider appeal in Gerry Adams case before paying all costs

South Wales Guardian

2 days ago

Mr Adams took the BBC to court over a 2016 episode of its Spotlight programme, and an accompanying online story, which he said defamed him by alleging he sanctioned the killing of former Sinn Fein official Denis Donaldson, for which he denies any involvement.
On Friday, a jury at the High Court in Dublin found in his favour and awarded him 100,000 euros (£84,000) after determining that was the meaning of words included in the programme and article.
The BBC will also have to pay Mr Adams's legal costs.
However, the broadcaster was granted a stay on paying out the full costs and damages to allow it time to consider whether to lodge an appeal.
The stay was subject to paying half the damages (50,000 euros or £42,000) and 250,000 euros (£210,000) towards solicitors' fees.
Eoin McCullough SC, for the broadcaster, told trial judge Mr Justice Alexander Owens on Tuesday that he was applying for a stay pending a decision on whether to take an appeal.
He said his client had not determined if it would appeal, but added that he was seeking a stay until the end of the appeal period.
In making its decision, the jury also found the BBC's actions were not in good faith and the corporation had not acted in a fair and reasonable way.
When asked by the judge for what grounds an appeal could be taken, Mr McCullough said the court had rejected applications by the defence on matters put to the jury relating to Section 26 of the Defamation Act.
In particular, he questioned the decision to reject an application to withdraw the question of 'good faith' to the jury – and the order in which that question was asked of the members.
The jury was asked the good faith question before making a decision on whether the publication was fair and reasonable.
Mr McCullough said it was inevitable that the jury would find against him on the matter of fair and reasonable action once it had already found against him on good faith.
Mr Justice Alexander Owens agreed with counsel that there may be grounds for an appeal on the fact that the jury was first asked to consider whether the actions were in good faith before considering whether the actions were fair and reasonable.
Tom Hogan SC, for Mr Adams, said that if the court was going to grant a stay, it should be on the basis of something being paid towards the award.
Mr Justice Alexander Owens granted the stay subject to the conditions that 50,000 euros be paid towards damages and 250,000 euros towards the solicitors' fees.
However, this can also be appealed against.
Mr McCullough had raised other potential grounds for appeal, including the court's decision not to allow Mr Donaldson's daughter to give another 'version' of matters given in evidence by the family's former solicitor Ciaran Shiels.
He also said an appeal may be grounded on the exclusion of the evidence of Austin Stack and historian Eunan O'Halpin.
He said an appeal could further be grounded on the defendants being excluded from taking on the issue of whether Mr Adams was in the IRA, arguing that this could be put forward as significant acts of misconduct which would speak towards reputation.
Mr Adams denies being a member of the IRA.
Mr McCullough also raised comments by the judge which referred to newspaper reports about Mr Adams that were called upon during cross-examination as 'rot' and 'blather'.
He said that based on all of these issues, the jury determination of a 100,000 euro quantum for damages was itself unsustainable, further stating that the circulation of the programme and article was 'very small' and combined with a 'very damaged reputation'.
Mr Hogan said he could not say that there were not some points that were arguable, but added he did not want to 'fight the appeal now'.
He said there was a 'very significant inequality of arms in this case' and questioned whether the application was strategic.
He said an appeal had to be brought on a bona fide basis.
Mr McCullough said it was 'surprising' if not a 'little frustrating' to hear a suggestion that he was acting short of good faith.
He said all he had said was that his client had not made up its mind and that any appeal should be allowed to proceed in the usual way.
He had argued that it may be difficult and complicated to get the amounts paid out back should he prevail on appeal.
Mr Justice Alexander Owens said he was 'not really persuaded' on the grounds of the appeal, other than the order of the questions on 'good faith' and 'fair and reasonable'.
He made the order of the payment of partial damages and costs.
It is open to the BBC to seek a further stay against that payment at the Court of Appeal.
Last week, the director of BBC Northern Ireland Adam Smyth said the broadcaster has insurance and 'makes financial provision for ongoing and anticipated legal claims'.
Separately, the counsel discussed whether the article – which remains online – could be geoblocked in the Republic of Ireland.
On the issue of seeking an injunction, Mr Hogan said he had been discussing the matter with Mr McCullough and that it may be technologically possible.
He added that there had been a lot of talk over the weekend over BBC services being blocked in the Republic of Ireland.
Mr Justice Alexander Owens replied: 'I heard that, I don't imagine that will happen.'
The judge questioned what jurisdiction he had to make an order on the BBC, which is abroad.
He added that it had been put to the jurors that he would not be able to make such an order and that their award of damages was the remedy on the matter.
Mr Hogan agreed that it was not a matter to be decided on Tuesday.