Ex-Labour TD Joe Costello claims he was used as 'fall guy' in RTÉ’s libel action defence

High Court Reporter

Former Labour TD Joe Costello was used by RTÉ as the “fall guy” in its defence of a libel action in 2018, the High Court has been told.

The claims were made by lawyers for Costello at the opening of his action seeking damages against RTÉ and the State. They told the court the broadcaster’s failure to notify the politician of the defence had breached his right to fair procedures.

Costello has sued over the broadcaster’s alleged failure to notify him of its defence of the defamation action brought by Sinn Féin activist Nicky Kehoe over comments made on a radio broadcast in October 2015.

In 2018, Kehoe, who said he was defamed in comments made on a broadcast of Today with Claire Byrne, was awarded €3,500 against RTÉ.

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

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

The jury found the broadcast was defamatory because it meant Kehoe was not a fit person to be involved in the democratic process.

The jury also found the national broadcaster was 35 per cent liable for the defamation, while Costello was 65 per cent at fault.

However, as Kehoe did not sue Costello, there was no judgment against him.

In his action, Costello alleges various breaches of his rights – including the right to fair procedures, and right to a good name and reputation – arising from the failure to notify him of RTÉ’s “concurrent wrongdoer” defence.

It is Costello’s case that RTÉ’s reliance on the 1961 Civil Liability Act in its defence required the broadcaster to notify him. In the alternative, Costello claims that if the Act does not require such notification, the relevant section of the legislation is unconstitutional.

The defendants are fully contesting the case. RTÉ says it was not obliged to join Costello to the Kehoe action, and not obliged to notify him of it. It is also denied that Costello’s rights were breached.

Opening Costello’s case on Tuesday, barrister Eileen Barrington asserted Costello was not notified of RTÉ’s defence of Kehoe’s action, and its claim that if Kehoe was defamed, the Labour TD was a concurrent wrongdoer.

Barrington said her client’s case was about the “simple proposition” that RTÉ should not have “taken the course that it did” – if it wanted to blame Costello, it should have notified him.

Barrington said that Costello felt he was used by the broadcaster as “the fall guy” in its defence of the action brought by Kehoe. Counsel said Costello was not afforded an opportunity to vindicate himself or rebut the allegation against him.

Giving evidence, led by barrister Conor Power, Costello said he was aware of Kehoe’s threat of legal action against RTÉ after being contacted by Kay Sheehy, a producer. Sheehy had sought information from Costello in relation to the remarks he’d made on the broadcast, he said.

Costello said that RTÉ did not make him aware Kehoe had subsequently initiated proceedings, nor did it notify him of the case proceeding to trial.

“I didn’t know there was a defence, I didn’t know there was a case ... I knew nothing about this case,” he said.

Had he been aware of the proceedings, he would have sought to be involved. “I would have wanted to defend my good name,” he said.

The case, before Judge Siobhán Stack, continues.