A High Court judge has directed the BBC to pay €50,000 damages, plus €250,000 legal costs, to former Sinn Féin president Gerry Adams pending a possible appeal by the broadcaster against full damages and costs orders made in his defamation case.
On those conditions, Mr Justice Alexander Owens on Tuesday gave the BBC a stay on payment of the full €100,000 damages awarded to Mr Adams by a High Court jury last week to vindicate and restore his reputation.
The stay also applies to the judge’s order for the BBC to pay Mr Adams’ legal costs, which are yet to be decided but have been estimated at up to €3 million for the 21-day action.
Eoin McCullough SC, with barrister Hugh McDowell, for the BBC, said his client was still considering whether to appeal against the jury decision and award made last Friday.
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When counsel asked about a further stay on payment pending any appeal, the judge told him this would have to be sought from the Court of Appeal.
The jury found the BBC had defamed Mr Adams by publishing a claim that he sanctioned the 2006 murder of British agent Denis Donaldson. He claimed the 2016 Spotlight programme and a related article defamed him by falsely accusing him of giving “the final say” in the murder of the MI5 informant by dissident republicans at a cottage in Glenties, Co Donegal.
The jury agreed, as Mr Adams had pleaded, that words published in the programme and article were understood to mean he sanctioned and approved the murder. The BBC argued the claim against Mr Adams was couched as an allegation, but the jury rejected its defence that publication of the allegation was fair, reasonable and in the public interest.
On Monday, Mr McCullough outlined a number of possible grounds of appeal, including concerning the treatment of evidence from the family of Mr Donaldson and a decision to exclude the evidence of Austin Stack, whose father was shot by the IRA in 1993.
The judge said he was “not really persuaded” there was anything in any, bar one, of the grounds. He said he was “partly with” counsel on a point concerning whether the jury should have been asked to consider whether the publication was done in good faith before considering whether it was fair and reasonable.
Mr McCullough said his side regarded the jury’s award of €100,000 as unsustainable for a broadcast of “very small circulation”.
The judge said it was obvious a broadcast like that would be picked up and there was publicity about the allegation made against Mr Adams. To accuse anyone of murder, or of sanctioning a murder, “is right up there at the top in my view”, he said.
Mr McCullough said Mr Adams had not pleaded a case for damages on the basis of republication elsewhere. The judge suggested the plaintiff’s side could have argued the BBC would have known something “as nefarious as that” would be immediately picked up.
Earlier, Thomas Hogan SC, for Mr Adams, said there was a “low bar” for an appeal, that an appellant had to show a ground was arguable and he did not propose to fight any appeal point at this stage. There was a “very significant inequality of arms” between the sides but his side, with very limited resources, had managed to prevail, he said.
Mr Hogan said the BBC was seeking the stay without even saying it was going to appeal, which suggested the stay application was “strategic”. Any stay should have conditions attached, including for payment of something towards the award and costs, he said.
Mr McCullough, rejecting any suggestion of bad faith in the stay application, said the BBC wanted to take advice and had not yet decided on an appeal.
The judge, who said he did not regard the stay application as a strategic one, granted a stay on payment of the full award and legal costs on condition the BBC pay out €50,000 of the award to Mr Adams and €250,000 towards his legal costs.
In other submissions, Mr Hogan accepted his side could not seek some extraterritorial injunction which would ‘geoblock’ the disputed publication.
When counsel referred to concerns in some quarters last weekend about the prospect of geo-blocking “the entire BBC”, the judge laughed and said he had read those, adding there was no jurisdiction to do that.
The jury award of damages was made on the basis of it being told an injunction was not an available remedy, he said.
