RTÉ fails to get Joe Costello damages claim over Nicky Kehoe defamation struck out

In 2018, a jury found the national broadcaster was 35% liable for the defamation of Nicky Kehoe while Mr Costello was 65% at fault

Joe Costello (pictured) has sued RTÉ, who he claims never gave him any proper notice of the defamation proceedings, and Ireland and the Attorney General, seeking damages. Photo: Collins Courts

RTÉ's application to strike out a damages claim brought against it by Labour politician Joe Costello has been dismissed by the High Court.

Mr Justice Tony O'Connor said the broadcaster's application was not one where the exceptional circumstances exist to allow a court at this stage of the proceedings to strike out the veteran politician's action.

He added that in its application RTÉ had not identified any prejudice which it claims it would suffer by allowing the claim against it to proceed to a full hearing of the High Court.

However, the judge said RTÉ was not precluded by the rules of court from making an application at a later stage of the proceedings to strike out the proceedings.

Mr Costello has sued the national broadcaster and the State, over RTÉ's defence of a defamation action brought against it by Sinn Féin activist Nicky Kehoe over comments made on the Saturday with Claire Byrne radio show in October 2015. In 2018 Mr Kehoe, who claimed he was defamed in the broadcast, was awarded €3,500 against RTÉ.

A High Court jury made an overall award of €10,000 for the defamatory comment made by Mr Costello on the show.

In its defence against Mr Kehoe's action RTÉ pleaded, under provisions of the 1961 Civil Liability Act, that Mr Costello was "a concurrent wrongdoer" and was responsible for the defamation.

The jury found the broadcast was defamatory because it meant Mr Kehoe was not a fit person to be involved in the democratic process. The jury also found the national broadcaster was 35% liable for the defamation while Mr Costello was 65% at fault.

However, as Mr Kehoe did not sue Mr Costello, a current Dublin City Councillor, there was no judgment against him.

Mr Costello has sued RTÉ, who he claims never gave him any proper notice of the defamation proceedings, and Ireland and the Attorney General, seeking damages.

He also seeks declarations that he was denied constitutional justice, fair procedures as blame was apportioned to him for a defamation without him being given the chance to defend himself.

He also seeks declarations that a section of the 1961 Civil Liability Act is unconstitutional, and in breach of the European Convention of Human Rights.

He further claims that in its defence RTÉ breached its obligations to him under the 2009 Broadcasting Act to be fair, objective, impartial, particularly in matters of public controversy. The claims are denied.

Today's ruling

In its pre-trial motion aimed at striking out the case, RTÉ claimed Mr Costello's action is unstateable, vague, was bound to fail and should be struck out by the court.

Mr Costello, represented by Conor Power SC, instructed by solicitor Padraig Ferry for Mr Costello, accepted that the case may be "novel" but rejected any suggestion the case has no hope of success and was bound to fail.

In his ruling dismissing the application, the judge said that this was not an application where it would be appropriate for a court to assess the evidence in the matter.

The onus in the case was on RTÉ to establish that the proceedings were bound to fail, and it would be an abuse of process for Mr Costello to prosecute these proceedings. However, the height of RTÉ's position at this early stage included that the claims do not exist in law.

He noted that it was not claimed by RTÉ that Mr Costello has some improper motive in bringing the proceedings and RTÉ does not claim that it will incur irrevocable damage if the claim is allowed proceed.

He said that while the court could see the benefit of giving directions regarding the determination of the dispute, he was most reluctant to embark on a process aimed at dismissing the action.