Joe Costello v Radió Teilifís ÉIreann, Ireland and The Attorney General

CourtHigh Court
JudgeMr. Justice Tony O'Connor
Judgment Date17 December 2021
Neutral Citation[2021] IEHC 798
Docket Number[2020 1761 P]
Joe Costello
Radió Teilifís ÉIreann, Ireland and The Attorney General

[2021] IEHC 798

[2020 1761 P]


Counsel for the plaintiff/respondent: Conor Power SC and Barry Mansfield BL

Counsel for the first named defendant/applicant: Cian Ferriter SC and Mark Dunne SC

JUDGMENT of Mr. Justice Tony O'Connor delivered electronically on the 17th day of December 2021


Before the Court is a notice of motion seeking “an order pursuant to O. 19, (28) of the Rules of the Superior Courts [“ RSC”] and/or the inherent jurisdiction of the court striking out the proceedings of the plaintiff [“ Mr. Costello”] against the first named defendant [“ RTÉ”] on the grounds that they disclose no reasonable cause of action, are unsustainable, are frivolous and vexatious, and are bound to fail”. No defence for RTÉ has been filed to date.


Counsel for RTÉ limited the application at the hearing of the motion to a request for a determination pursuant to the inherent jurisdiction of the Court that the claim against RTÉ is bound to fail.

Agreed facts for this application

As it is not appropriate for the Court to assess evidence in this type of application, the parties prompted by the Court produced “an agreed statement of facts”. That statement is only for this application and does not constitute any admission or finding of fact by the Court. Rather, it has been possible as a result of the exchange of affidavits in this application for the parties to identify facts which can be taken by the Court as facts but limited to this application only.

Request for a panel member

In advance of the “Saturday with Claire Byrne Show” broadcasted on 24 October 2015 (“ the show”), a radio producer for RTÉ requested the Government Information Service (“ GIS”) to provide a representative for the then – Fine Gael/Labour coalition government. When a government minister was not available, the GIS referred such a request to each of the press offices of those two political parties. In this instance, Mr. Costello who was then a Labour Party Teachta Dàla (“ TD”) ended up as a guest on the show. The effect of how he became a guest on the show remains in issue. In other words, the implied terms and representations attaching to his appearance as alleged in the statement of claim are denied in the affidavits filed for RTÉ.

The impugned statements

Mr. Eoin Ó'Broin (“ EO”) then a Sinn Fein councillor, was another panel member on the show. The following excerpts of exchanges between Claire Byrne (“ CB”), Mr. Costello (“ JC”) and EO are taken from the transcript of the show from 14:29 and are exhibited to the first affidavit filed on behalf of RTÉ in the current application before this Court:

“JC: “I'm not saying that, what I'm saying is that there is a parallel structure in place which is the Army Council and that that is influencing what Sinn Fein does. Now I, can see for example, if I look at Dublin City Council, there is a former Chief of Staff of the IRA in Dublin who gives direction to the councillors”

CB: “How do you know that?”

JC: “Because he's there at every meeting”.


EOB: “He is a Sinn Fein member. He is employed by the party as part of our political coordinator to ensure consistency across the four Sinn Fein Council groups in the city. His name is Nicky Kehoe and it is an absolute outrage for Joe to infer, as he's doing that Nicky is in there acting on behalf of the IRA Council. Nicky is a long standing member of our party. He is a person who has devoted an incredible amount to the well-being of his community. As Joe knows. So, Joe it's time for you to start being a little bit straight here.

JC: “So … what I'm saying … what I'm saying … is that this is a person who is a senior member of the Army Council, this is a person who is there at every meeting of the Dublin City Council”.

CB: “IS? Are you saying IS?”


JC: “IS”

JC: “And all the little heads swivel around when a decision has to be made and that is the context in which it happens”.

EOB: (speaking over) “I'm sorry Claire, that is just the most bizarre, of all the bizarre things Joe has said this last week that is the most bizarre and outrageous thing. And he knows Nicky Kehoe well. And he knows”.

JC: (speaking over) “It is a fact … course I know Nicky well”.


The transcript excerpts then show some debate about whether Mr. Costello maintained the present or the past tense when he referred to the alleged membership of the Army Council.

Threat of defamation proceedings

After the broadcast, Mr. Kehoe threatened defamation proceedings by letter of 19 November 2015.


Mr. Costello has averred that he had “… been doing interviews with RTÉ for almost 50 years and [he] always understood that current affairs programmes had a facility to delay the broadcast of panellists' words”. It was only after the deponent for RTÉ swore an affidavit on 22 April 2021 that he learned about the absence of such a facility.


It is common case that Mr. Costello was made aware of the threatened proceedings of Mr. Kehoe. He had replied to the producer of the show by email of 28 November 2015 which queried the libellous nature of anything which he had said.


RTÉ accepts solely for this application, that the producer of the show had never suggested a follow up meeting, telephone call or briefing about the progress of the defamation proceedings commenced by Mr. Kehoe on 4 March 2020.

The trial

Again, for this application only, RTÉ accepts that the trial of Mr. Kehoe's defamation action commenced on 14 February 2016 without the knowledge of Mr. Costello. He has averred that he only learned about the action through media reports and specifically:

“If I had known the nature of the defence offered by RTÉ, I would have sought to be legally represented in the matter”.

Defence of RTÉ in the jury action

Barton J. in the proceedings entitled ( [2018] IEHC 340 Nicky Kehoe v. Radió Telefís Éireann Unreported, High Court, 21 February 2018) summarised the defence of RTÉ as follows at para. 2:

“2. In these circumstances, the defence delivered incorporates a plea pursuant to s.35 (1) of the Civil Liability Act, 1961, (“ the CLA”), as amended. The object and effect of the plea is to fix the plaintiff with responsibility for the wrongful acts of Joe Costello, a statute barred defendant, so as to reduce by the extent of that responsibility the amount of the damages, if any, the jury may award to the plaintiff. In short, s. 35 (1) (i) deems the liability of the statute barred defendant a form of contributory negligence which may be pleaded against the plaintiff by way of defence to his claim. The essence of the plea involves identifying the plaintiff with the responsibility for the wrongful acts of the statute barred defendant.

3. Identifications for the purposes of contributory negligence in general are governed by the provisions of s. 35 of the CLA. Subs. (1) (i) is concerned with identification in circumstances where the plaintiff's damage is caused by concurrent wrongdoers and where the plaintiff has permitted the claim against one or more of them to become statute barred.

4. The plea in this case had also been raised in respect of Eoin O'Broin but was abandoned by the defendant in the course of hearing. He identified the plaintiff by name on air but spoke out in his defence during the material exchanges, the substance of which has been relied on by the defendant to meet the claim. The plaintiff is a senior member of Sinn Féin in Dublin; he makes no complaint against his party colleague. The same cannot be said for Joe Costello who, without mentioning the plaintiff by name, uttered the remarks about which complaint is made and simultaneously published by the defendant.”


In summary, Barton J. held that Mr. Costello and RTÉ were concurrent wrongdoers within the meaning of s. 11 of the Civil Liability Act in respect of any defamation claim which Mr. Kehoe had and that RTÉ was therefore entitled to put its plea under s. 35(1)(i) of the Civil Liability Act 1961 to the jury.

Mr. Costello's statement of claim

In these proceedings, the following paragraphs of the statement of claim delivered on 4 March 2020 for Mr. Costello identifies the grounds for the claim now against RTÉ:

“16. On 26 February 2018, the jury returned a verdict in favour of Mr. Kehoe and assessed damages at the sum of €10,000. The jury found [RTÉ] 35% responsible for the defamation and held [Mr. Costello] to be 65% responsible. Accordingly, the award in Mr. Kehoe's favour was reduced to €3,500 pursuant to s. 34(1) of the Civil Liability Act.

17. The jury in the Kehoe proceedings returned a verdict that [Mr. Costello] made a defamatory statement against Mr. Kehoe within the meaning of s. 6 of the Defamation Act.

18. [Mr. Costello] was not a party to nor witness in the Kehoe proceedings and had no opportunity to vindicate himself, raise a defence or otherwise rebut the allegations made against him. Had [Mr. Costello] been given the opportunity to participate in the Kehoe proceedings, he could have raised the statutory defences available to him under the Defamation Act.

19. Although [Mr. Costello] has not been required to make monetary compensation to Mr. Kehoe as a result of the jury verdict in the Kehoe proceedings, he has suffered the ignominy of a formal finding against him and his political credibility and reputation was damaged. He was not invited back on any of [RTÉ's] current affairs programmes.

20. By inviting [Mr. Costello] as a guest and panellist [RTÉ] agreed, warranted and thereby represented that [RTÉ] would vindicate his rights and that it would not expose him to opprobrium of the sort that would cause him damage to his political credibility and personal reputation and would keep him properly and fully informed of comments made and positions adopted in respect of him.

21. [RTÉ] is obliged under...

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