The High Court has refused RTÉ’s application to strike out Joe Costello’s claim against the broadcaster over its handling of a defamation action brought by Nicky Kehoe. The court did not decide whether RTÉ was liable or whether Mr Costello’s claims would succeed at trial.
The application was heard by Mr Justice Tony O’Connor, who delivered judgment on 17 December 2021. RTÉ narrowed its request at the hearing to an order under the court’s inherent jurisdiction that Mr Costello’s claim against it was bound to fail. RTÉ had not yet filed a defence in these proceedings.
The claim concerns a 2015 RTÉ radio programme on which Mr Costello, then a Labour Party TD, and Sinn Féin councillor Eoin Ó Broin were panellists. During the broadcast, Mr Costello said that an Army Council structure influenced Sinn Féin and referred to a person he described as a former IRA chief of staff at Dublin City Council. Mr Ó Broin identified that person as Nicky Kehoe, a Sinn Féin member employed by the party, and rejected Mr Costello’s implication. The judgment records that the parties disputed what terms or representations, if any, attached to Mr Costello’s appearance.
Mr Kehoe later brought a defamation action against RTÉ. A jury found in his favour in 2018, assessed damages at €10,000 and apportioned responsibility 35% to RTÉ and 65% to Mr Costello. The award was reduced to €3,500. Mr Costello was not a party to that action. His current claim alleges, among other things, that RTÉ breached duties or representations by relying on a defence that attributed responsibility to him without joining him or properly informing him. These are allegations, not findings in the present proceedings.
Justice O’Connor said RTÉ had to establish that the claim was bound to fail and that allowing it to continue would be an abuse of process. He found no identified prejudice beyond the expense of defending claims RTÉ considered unsustainable, and said court rules already provided ways to address issues before trial. He also said that, if his approach to the application were later found wanting, some of the pleaded claims were potentially stateable; that observation was expressly non-binding on another judge.
The court refused RTÉ’s application. It did not then make an order for the costs of the application. It indicated that Mr Costello’s costs would normally follow the outcome, while giving RTÉ an opportunity to make written submissions. The costs order was deferred pending submissions or the passage of three weeks from electronic delivery of the judgment.