A "procedural but substantial miscarriage of justice" occurred in Ms Beverley Cooper-Flynn's unsuccessful High Court action for damages alleging libel in a number of RTÉ broadcasts, it was claimed in the Supreme Court yesterday.
Her lawyer argued that as a result of the jury in the libel trial being misdirected by the judge on how they might reach a majority decision on questions in the action, Ms Cooper-Flynn was left with a failed libel action.
This misdirection was due to "inadvertence" by the trial judge and by counsel for all parties involved, Mr Eoin McCullough SC, for Ms Cooper-Flynn, said. The jury was misdirected as to the law on majority verdicts which law was "a mandatory requirement that the court cannot simply ignore". Mr McCullough, with Mr Garrett Cooney SC, and Mr Hugh Mohan SC, was closing the appeal by the Co Mayo TD arising from her failed action alleging libel in a series of RTÉ broadcasts.
A central issue is the claim by Ms Cooper-Flynn that the judge failed to direct the jury correctly as to the law on majority voting. She said the judge should have told the jury that, in relation to all four questions it was asked to answer, a majority of nine, which had to be the same nine, must reach agreement.
As a result of the misdirection, there could have been a different majority of nine on Question 1, which asked the jury to decide whether Ms Cooper-Flynn had induced Mr Howard to evade tax, and Question 2, which asked the jury to decide whether she had assisted four other persons in evading tax, counsel said. The jury had answered No to Question 1 and Yes to Question 2.
A fallacy running through all the submissions by the defence opposing the appeal was that there was a valid jury verdict on Question 3, which asked the jury to decide if the alleged libellous material had a material effect on Ms Cooper-Flynn's reputation. The jury had answered No.
Given that the jury could have reached its decisions on Questions 1 and 2 unlawfully, it might well be the answer to Question 3 was arrived at unlawfully, counsel said.
