Former TD Joe Costello’s claim for damages against RTÉ struck out, case continues against State

High Court Reporter

Former Labour TD Joe Costello’s claim for damages against RTÉ has been struck out, following an agreement that the politician’s High Court action did not require the broadcaster’s participation.

Costello’s action, which centres on legislation relied on by RTÉ in its defence of a separate libel lawsuit, remains live as against the State.

He sued over the broadcaster’s failure to notify him of its defence of a defamation action brought by Sinn Féin activist Nicky Kehoe.

In 2018, Nicky Kehoe, who said he was defamed in comments made on a broadcast of RTÉ Radio’s 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 Joe Costello, there was no judgment against him.

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

It is the Costello 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.

Costello claims that had he known about RTÉ’s defence, he would have wanted to “defend [his] good name”.

The State denies that Costello’s rights have been breached.

The trial of the action opened before Judge Siobhán Stack this week.

On the second day of the trial, following Costello’s evidence, the politician’s lawyers told the judge that they and the RTÉ side agreed the correct interpretation of the 1961 Act could be addressed without the participation of RTÉ in the proceedings.

RTÉ would not object to any declaration made by the court in relation to the interpretation of the 1961 Civil Liability Act, the court heard.

Eileen Barrington, appearing with Conor Power for Costello, said the case against RTÉ could be struck out. The judge said she would make the order.

The case continues.