The High Court has ruled that RTÉ may ask a jury to consider the role of a time-barred co-speaker when assessing any damages awarded to Nicky Kehoe in his defamation action over a live radio broadcast. The ruling resolves a legal issue about the jury’s questions; it does not decide whether the broadcast was defamatory or determine any damages.
Kehoe’s case concerns remarks made by Joe Costello during RTÉ’s live “Saturday with Claire Byrne” programme on 24 October 2015. The judgment records that Costello was not sued and that the limitation period for a claim against him had expired. Kehoe’s claim against RTÉ remains for the jury to decide.
The parties had agreed on questions asking whether the programme, taken as a whole, conveyed several meanings about Kehoe, including that he was a senior member of the IRA Army Council and involved in controlling Dublin City Council on its behalf. If the jury finds one or more of those meanings were conveyed, it will consider RTÉ’s defence of fair and reasonable publication. If that defence fails, it will assess damages.
RTÉ sought an additional question asking the jury to state what percentage of any damages RTÉ should be held liable for. It relied on section 35(1)(i) of the Civil Liability Act 1961, which provides for a plaintiff to be treated as responsible for a concurrent wrongdoer’s acts where the claim against that wrongdoer has become time-barred. Kehoe argued that the provision did not apply to defamation and that the jury should not be asked to apportion liability on that basis.
Justice Bernard Barton held that Costello and RTÉ could be concurrent wrongdoers because the remarks were made and broadcast live to the same listeners. The court accepted that, if the remarks are found defamatory, both the speaker and broadcaster may be liable. It also held that section 35(1)(i) applies to concurrent wrongdoing in defamation cases and that RTÉ could rely on the plea because Kehoe’s claim against Costello had become time-barred.
The court directed that the plea go to the jury as a question in the terms proposed by RTÉ, or in similar terms agreed by the parties. It allowed for a short adjournment to consider wording changes, provided the question retained the same substance. The jury has yet to decide the agreed questions, and the ruling does not establish that the broadcast was defamatory or that Kehoe is entitled to damages.