Defamation claim dismissed due to truth defense; court awarded €35,000 damages for serious reputational harm to journalist.

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

DUBLIN CIRCUIT COUNTY OF THE CITY OF DUBLIN

Record No. 2018/07306

Neutral Citation: [2024] IECC 7

Between:

Kitty Holland

PLAINTIFF

-and-

John Waters

DEFENDENT JUDGMENT of His Honour Judge John O’Connor delivered on 3rd July 2024:

PART A Paragraph No Page No

1. Introduction…………………………………………………………………………..…1

2. Law of Defamation……………………………………………………………….…..2-3

3. Circuit Court Rules………………………………………………………………..….3-4

4. The Parties…………………………………………………………………………....4-5

5. Pleadings:

(i) Plaintiff’s Claim……………………………………………...……………….…...5-7

(ii) Defence………………………………………………………..………….....…….7-8

PART B 6-11. Background…………………………………………………………………....…8-11 12-18. Eighth Amendment to the Constitution……………………………………….11-13

19. Renua Conference Speech…………………………………………………………....13

20. Solicitors Letter from Lavelle Partners dated 22nd November 2018……………...13-15 21-24. Defendant Letter to Lavelle Partners dated 15th March 2019…………………15-16 25-26. Issue of Proceedings in the Circuit Court………………………………………….16 27-28. Assessment of Damages - Higgins v. The Irish Aviation Authority [2022]...…16-17 29-32. Circuit Court Actions…………………………………………………………...…17

33-34. What is a lie?.......................................................................................................17-18

35-37. What is Bias?...........................................................................................................18

PART C

38. Introduction………………………………………………………………………….18 39-52. Mr Andrew Walker SC Opening Address……………………………………19-22 53-67. Examination-in-Chief – Kitty Holland……………………………………….22-26 68-95. Cross-Examination – Kitty Holland…………………………………………..26-44

95. Re Examination – Kitty Holland………………………………………………….…44 96-97. Evidence – Dr Peter Boylan…………………………………………………..44-46 98-99. Cross-Examination – Dr Peter Boylan…………………………………………..46

100. Evidence – Justine McCarthy……………………………………………..…....46-47

101. Cross-Examination – Justine McCarthy…………………………………..……….47 102-105. Examination-in-Chief – Kevin O’Sullivan…………………………….….47-49 106-115. Cross-Examination – Kevin O’Sullivan…………………………………..49-57 116-145. Examination-in-Chief – John Waters……………………………………..58-75 146-169. Cross-Examination – John Waters………………………………………..75-92 170-183. Defendant’s Closing Submission – Mr Kavanagh SC……………………93-99 184-200. Plaintiff’s Closing Submission – Shane English BL…………..………...99-106

PART D 201-201. Judgment………………………………………………………….…….107-123 Part A

1. Introduction The law of defamation has traditionally been concerned with balancing the defence of a person’s reputation or good name against the right to free speech. In Ireland, these rights are protected under the Irish Constitution (Bunreacht na hÉireann).

Article 40.3.2⁰ states:

“The State shall, in particular, by its laws protect as best it may from unjust attack, and in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

Article 40.6.1⁰:

“The State guarantees liberty for… [t]he right of the citizens to express freely their convictions and opinions.”

The law was codified by the Defamation Act 2009 (hereinafter “the 2009 Act”). While the 2009 Act is extensively referred to in this judgment, it is not intended to explore in detail the case law generally. This judgment will apply the existing Irish law to the facts of this case and therefore, references to existing case law of the Superior Courts will only be referenced where necessary. Analysis of the key case law is expertly outlined in the following leading textbooks:

• Cox, McCullough, “Defamation: Law and Practice”, (Clarus Press, 2nd ed, 2022)

• McMahon, Binchy, “Law of Torts”, (Bloomsbury Professional, 2013)

• Maher, “The Law of Defamation”, (Round Hall, 2nd ed, 2019)

• Rampton et al, “Duncan and Neill on Defamation”, (Butterworths, 5th ed, 2020)

This case was heard before me in the Circuit Court in Dublin on the 24th, 25th, 29th and 30th of April and concluded on the 1st of May 2024.

2. The Law on Defamation Section 6 of the Defamation Act 2009 sets out the definition of the tort of defamation, it states:

“(2) The tort of defamation consists of the publication, by any means, of a defamatory statement concerning a person to one or more than one person (other than the firstmentioned person), and “defamation” shall be construed accordingly.

(3) A defamatory statement concerns a person if it could reasonably be understood as referring to him or her.

(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—

(a) it was not intended that the statement would be published to the secondmentioned person, and

(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the secondmentioned person.

(5) The tort of defamation is actionable without proof of special damage.”

Section 38 of the 2009 Act amended section 11 of the Statute of Limitations 1957 which now states:

“(2)(c) A defamation action within the meaning of the Defamation Act 2009 shall not be brought after the expiration of—

(i) one year, or

(ii) such longer period as the court may direct not exceeding 2 years, from the date on which the cause of action accrued.

3A) The court shall not give a direction under subsection (2)(c)(ii) (unless it is satisfied that—

(a) the interests of justice require the giving of the direction,

(b) the prejudice that the plaintiff would suffer if the direction were not given would significantly outweigh the prejudice that the defendant would suffer if the direction were given,

and the court shall, in deciding whether to give such a direction, have regard to the reason for the failure to bring the action within the period specified in subparagraph (i)

of the said subsection (2)(c) and the extent to which any evidence relevant to the matter is by virtue of the delay no longer capable of being adduced.

(3b) For the purposes of bringing a defamation action within the meaning of the Defamation Act 2009, the date of accrual of the cause of action shall be the date upon which the defamatory statement is first published and, where the statement is published through the medium of the internet, the date on which it is first capable of being viewed or listened to through that medium.”

3. Circuit Court Rules Order 5C, Rule 4 of the Circuit Court Rules states:

4. (1) An application to the Court for leave under section 11(2) may be brought by originating motion ex parte, grounded upon an affidavit sworn by or on behalf of the moving party. The Court may, on the hearing of such an application, give such directions, if any, as to the giving of notice of the application or otherwise, as it considers just and convenient.

(2) The following applications in a defamation action shall be made by motion to the Court on notice to the opposing party or parties, grounded upon an affidavit sworn by or on behalf of the moving party:

(i) an application for a ruling under section 14;

(ii) an application for an interlocutory order under section 33;

(iii) an application for summary relief under section 34(1), and

(iv) an application to dismiss the defamation action under section 34(2).

(3) Where a defamation action has not been brought before the Court in respect of the statement in question, an application to the Court for a direction under section 11(2)(c)

of the Statute of Limitations 1957 shall be brought by originating notice of motion, in which the intending plaintiff shall be named as applicant and the intended defendant as respondent. The application shall be grounded upon an affidavit sworn by or on behalf of the moving party.

4. The Parties

Plaintiff The plaintiff, Kitty Holland, is an established journalist who is the Social Affairs Correspondent of The Irish Times. She has also contributed to other established newspapers, media, and current affairs programmes. She has a long professional commitment to covering social and human rights issues. She was awarded Journalist of the Year in 2013 amongst other awards for her breaking the story of the death of Savita Halappanavar in 2012, and her subsequent work on that story including her book “Savita: The Tragedy that Shook a Nation”.

Defendant The defendant, John Waters, is an author of ten books including the bestselling book “Jiving at the Crossroads” and his latest book “Give us Back the Bad Roads”. He is also an established columnist, songwriter, editor, and has written articles for many established newspapers, such as the Irish Times. He is a former member of the Broadcasting Authority of Ireland and has also contributed to many media outlets. He states he has a long sincere commitment to what he describes as “unpopular causes”. In this regard he cites his longstanding political commitment to the protection of the unborn child.

Witnesses The witnesses who gave evidence for the plaintiff in this trial are:

(i) Kitty Holland, the plaintiff.

(ii) Dr Peter Boylan is a retired consultant obstetrician/gynaecologist and former Master of the National Maternity Hospital in Holles Street, Dublin. He was an expert witness at the Savita Halappanavar inquest held in 2013.

(iii) Justine McCarthy is an established journalist, columnist and political correspondent for many years with the Sunday Times and currently a columnist with the Irish Times. She is an author and frequent broadcaster.

(iv) Kevin O'Sullivan is currently the Environment and Science Editor of the Irish Times. He was editor of The Irish Times between 2011-2017.

The witness who gave evidence for the defendant:

(i) John Waters, the defendant.

5. Pleadings The plaintiff issued a Civil Bill on the 22nd November 2018. She claimed as follows:

“1. The Plaintiff is a journalist writing for the Irish Times newspaper.

2. The Defendant is a journalist and resides in County Dublin.

3. The Plaintiff in her capacity as a journalist has on a number of occasions since October 2012 written articles of and/or concerning the untimely death of Savita Halappanavar in University Hospital Galway on 28th October 2012. The articles of the Plaintiff concerning the death of Savita Halappanavar since October 2012 gained provenance during the course of the 2018 abortion referendum: “Repeal the Eighth”.

4. On 25th November 2017, the Defendant falsely and maliciously published of and concerning the Plaintiff and, in particular, concerning the Plaintiff in the way of her profession as a journalist the words: “journalist who started the lie” which said words were spoken of and concerning the Plaintiff by the Defendant at a public forum hosted and/or in respect of Renua Ireland.

5. Further, the words published of and concerning the Plaintiff were posted on the internet in a video of the Defendant’s speech at the said event [a copy of the link was furnished].

6. The content of the speech and/or talk by the Defendant at the said event made it clear that the words of the Defendant were clearly spoken of, concerned and/or related to the Plaintiff and all those attending the said event and or viewing the Defendant’s talk on

the internet would be aware that the said words spoken specifically referred to the Plaintiff.

7. In their natural and ordinary meaning the words referred to and complained of meant and were understood to mean that:

a. The Plaintiff was dishonest;

b. The Plaintiff was a dishonest reporter;

c. The Plaintiff was not fit to be a journalist;

d. The Plaintiff was unfit to carry on her business as a journalist;

e. The Plaintiff was wholly inaccurate in her journalism.

f. The Plaintiff in her capacity as a journalist was likely to and/or did spread false stories and/or lied.

8. The said words have injured the personal, business and/or professional reputation of the Plaintiff in the eyes of reasonable members of society.

9. The Defendant spoke and/or published the said words of the Plaintiff without taking any or any adequate measures to establish their truth or falsity.

10. The Plaintiff further contends that the words complained of were published and/or spoken maliciously by the Defendant:

Particulars of Malice and Aggravation The Defendant knew that there was no basis to refer to the Plaintiff as a liar notwithstanding which the said words were spoken and published of the Plaintiff in a public forum and published on the worldwide web in full knowledge of the harm and/or injury to the Plaintiff and in her capacity as a journalist.

11. In consequence of the foregoing the Plaintiff’s character and her reputation and in particular her professional and business relationship, and in particular as a journalist, have been gravely damaged and she has suffered considerable distress, anxiety and embarrassment.

12. The Defendant has failed, refused and/or neglected to publish or print a proper or any correct of the words complained of and/or apologise to the Plaintiff and/or take down the online publication. AND THE PLAINTIFF CLAIMS:

i) Damages for defamation, including aggravated and exemplary damages, limited to the jurisdiction of this Honourable Court.

ii) The costs of these proceedings.

iii) Interest pursuant to the Courts Act, 1981 as amended."

Defence The defendant issued a detailed and a largely traverse defence on the 5th December 2019. In his defence, the defendant pleaded truth, honest opinion, qualified privilege, and defence of fair and reasonable publication on a matter of public interest under section 26 of the Defamation Act 2009. In summary the defendant denied the words used were defamatory and counsel, on his behalf, stated “he was exercising his right to free speech, in good faith, speaking on a difficult and emotive issue, on which he holds deep convictions.” In relation to the recording and broadcast of the speech, he states he was unaware of the recording of his speech at the Renua Conference and had no role placing the recording on Facebook.

He denied identification of the defendant. He submitted that he had no ill will towards the Plaintiff whom he knew since she was a child. He also stated the words “journalist who started the lie” must be taken in context in that “he delivered his speech in good faith and held an honest opinion and at the time he believed in the truth of the opinion.” He further stated that this opinion related to matter of huge public interest particularly in the lead up to the difficult and emotive “Repeal the Eighth” referendum. He also claimed that his opinion was based on facts derived largely from the findings of the coroner’s inquest dated the 13th April 2013, the HSE Report dated the 13th June 2003, the HIQA Report dated the 9th October 2013, and the commentary thereon sufficient for the purposes of section 20(3)(a)(i) and/or (ii) of the 2009 Act.

He also claimed that it was an inaccurate narrative that implied Savita Halappanavar, “had died because of doctors’ inability to provide abortion, which narrative had commenced at the occasion of the joint (Holland /Cullen) article on the 14th November 2012.” He submitted that he is entitled to the benefit of fair and reasonable publication, a matter of public interest in that he holds deep pro-life convictions and his speech was delivered in good faith on a matter of public interest, the discussion which was for the benefit of the public, particularly in the months preceding the referendum on whether the Eight Amendment to the Constitution.

In all the circumstances he stated the speech did not exceed that which was reasonably sufficient. He also submitted the facts were sufficiently specified or referred to in his opinion which might reasonably be expected to have been known by the persons to whom the statement was published.

In regard to qualified privilege, the defendant stated that he made the speech to members of Renua Ireland which were opposed to abortion and which campaigned to retain the eighth amendment to the Constitution, and that Renua members at the Conference had a duty or had at least reasonable grounds to receive the information contained in the defendant’s speech

Part B

Background

6. Savita Halappanavar (Savita) was a qualified dentist who died tragically on the 28th October 2012 aged 31 in University Hospital Galway (UHG). She was married and in a loving relationship with her husband, Praveen Halappanavar (Praveen). Savita was originally from southwest India. She was a sociable woman who didn’t drink alcohol and was a member of the Lingayat religion which, in simple terms, is regarded as a Hindu sect that worships “Shiva” as the only deity; however, it rejects the Hindu Caste system. The only significance of this is to give context to Savita’s background to the issues raised in this case.

7. A post-mortem examination on Savita’s body was performed on the 30th of October 2012. The cause of death established by the coroner (Dr Ciaran McLaughlin) pursuant to an inquest (coroner and jury) in April 2013 was: “1(a) Fulminant septic shock from E. coli bacteraemia. 1(b) Ascending genital tract sepsis. 1(c) Miscarriage at 17 weeks gestation associated with chorioamnionitis. (2) There were no co-morbidities.”

8. Essentially, Savita died from multi-organ failure from septic shock and E. coli four days after she delivered a deceased foetus. According to Dr Peter Boylan’s medical report handed into court (page 18):

“From the early hours of October 24th, Ms Halappanavar developed sepsis, severe sepsis, and septic shock in rapid sequence. She developed an overwhelming infection and despite the best efforts of intensive care specialists she, unfortunately, died on Sunday October 28th 2012.” The jury of the coroner’s inquest into Savita’s death reached a unanimous verdict of death by 'medical misadventure'. It is accepted by the parties that Savita’s tragic death had a

devastating effect on her husband, Praveen Halappanavar, and her family, and that there were substantial deficiencies in her medical care.

9. The Health Service Executive (HSE) published a report in June 2013. The Health Information and Quality Authority (HIQA) was asked by the HSE to carry out its own separate inquiry. The HIQA report was published in October 2013. However, it is not the function of this judgment to comment on the various reports or any issues concerning the report’s findings/conclusions except in so far as it is necessary as to give context to this case.

Irish Times 14th November 2012

10. On 14 November 2012, Savita’s image appeared on the frontpage of the Irish Times newspaper alongside the headline “Woman ‘denied a termination’ dies in hospital”. It was an article largely authored by the plaintiff but also credited to Paul Cullen, the then Irish Times Health Correspondent. It was a story subsequently taken up very quickly as a major news story with both Irish and international news outlets. Within a day, it became the mostviewed news story in the history of the Irish Times website. Praveen spoke to RTE on the News at One programme from India that afternoon. There were meetings and protests held in Ireland and in other countries over the circumstances of Savita’s death, and also concerning Ireland’s then restrictive abortion laws.

Irish Times article 14th November 2012

11. “Two investigations are under way into the death of a woman who was 17 weeks pregnant, at University Hospital Galway last month. Savita Halappanavar (31), a dentist, presented with back pain at the hospital on October 21st, was found to be miscarrying, and died of septicaemia a week later. Her husband, Praveen Halappanavar (34), an engineer at Boston Scientific in Galway, says she asked several times over a three-day period that the pregnancy be terminated. He says that, having been told she was miscarrying, and after one day in severe pain, Ms Halappanavar asked for a medical termination. This was refused, he says, because the foetal heartbeat was still present and they were told, “this is a Catholic country”. She spent a further 2.5 days “in agony” until the foetal heartbeat stopped.

Intensive Care

The dead foetus was removed and Savita was taken to the high dependency unit and then the intensive care unit, where she died of septicaemia on the 28th. An autopsy carried out by Dr Grace Callagy two days later found she died of septicaemia “documented ante-mortem” and E.coli ESBL. A hospital spokesperson confirmed the Health Service Executive had begun an investigation while the hospital had also instigated an internal investigation. He said the hospital extended its sympathy to the family and friends of Ms Halappanavar but could not discuss the details of any individual case. Speaking from Belgaum in the Karnataka region of southwest India, Mr Halappanavar said an internal examination was performed when she first presented.

“The doctor told us the cervix was fully dilated, amniotic fluid was leaking and unfortunately the baby wouldn’t survive.” The doctor, he says, said it should be over in a few hours. There followed three days, he says, of the foetal heartbeat being checked several times a day.

“Savita was really in agony. She was very upset, but she accepted she was losing the baby. When the consultant came on the ward rounds on Monday morning Savita asked if they could not save the baby could they induce to end the pregnancy. The consultant said, ‘As long as there is a foetal heartbeat we can’t do anything’.

“Again on Tuesday morning, the ward rounds and the same discussion. The consultant said it was the law, that this is a Catholic country. Savita [a Hindu] said: ‘I am neither Irish nor Catholic’ but they said there was nothing they could do.’ That evening she developed shakes and shivering and she was vomiting. She went to use the toilet and she collapsed. There were big alarms and a doctor took bloods and started her on antibiotics.”

“The next morning I said she was so sick and asked again that they just end it, but they said they couldn’t.”

Critically ill At lunchtime the foetal heart had stopped and Ms Halappanavar was brought to theatre to have the womb contents removed. “When she came out she was talking okay but she was very sick. That’s the last time I spoke to her.”

At 11 pm he got a call from the hospital. “They said they were shifting her to intensive care. Her heart and pulse were low, her temperature was high. She was sedated and critical but stable. She stayed stable on Friday but by 7pm on Saturday they said her heart, kidneys and liver weren’t functioning. She was critically ill. That night, we lost her.”

Mr Halappanavar took his wife’s body home on Thursday, November 1st, where she was cremated and laid to rest on November 3rd.

The hospital spokesman said that in general sudden hospital deaths were reported to the coroner. In the case of maternal deaths, a risk review of the case was carried out.

External experts were involved in this review and the family consulted on the terms of reference. They were also interviewed by the review team and given a copy of the report.”

Eighth Amendment of the Constitution and subsequent developments

12. The Irish Constitution was amended in 1983 following a referendum wherein it stated in respect of Article 40.3.3°:

“The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right.”

13. Subsequent to that referendum, the Supreme Court case of Attorney General v X [1992] IESC 1, and the further referenda proposals of the 12th, 13th, 14th and 25th Amendments arose to clarify the law on the right to life of the unborn. It should be noted that only the 13th and 14th Amendment of the Constitution passed.

14. In 2010, the European Court of Human Rights in the case of A, B, and C v Ireland [2010] ECHR (No.25579/05) held that Ireland's failure to implement accessible procedures in order to establish whether a pregnant person had the right to a lawful abortion amounted to a violation of her rights under the European Charter of Human Rights. The Court set out the following three issues that needed to be addressed by the Irish Government: 1.

Legislative criteria or procedures that allow for a practical assessment by doctors and women of a “real and substantial risk to the life of the pregnant woman”; 2. A framework to examine and resolve differences of opinion between a woman and her doctor or between doctors; 3. The effect of the severe criminal penalties for having or assisting an unlawful abortion which can interfere with medical consultations between a woman and her doctor. Following Savita’s death, The Protection of Life During Pregnancy Act 2013 provided for abortion where medical practitioners certify “in good faith that there is a real and substantial risk of loss of the woman’s life”, and that it is their reasonable opinion that this can only be averted by terminating the pregnancy.

15. The Thirty-sixth Amendment of the Constitution of Ireland passed in 2018 and permitted the Oireachtas to legislate for abortion, thus effectively reversing the Eighth Amendment.

16. During the course of this trial, the defendant referred to a case presided over by Humphreys J which was reversed in part by a subsequent appeal to the Supreme Court. I assume this refers to the case of I.R.M. v Minister for Justice and Equality [2016] IEHC 478 wherein the learned judge held that the unborn had inherent constitutional rights outside those passed in the Eighth Amendment. The Supreme Court in M v Minister for Justice and Equality [2018] IESC 14 disagreed, with Clarke CJ. concluding at paragraph 13.3:

“The most plausible view of the pre-Eighth Amendment law was that there was uncertainty in relation to the constitutional position of the unborn which the Eighth Amendment was designed to remove. In addition, the provisions of the two subparagraphs to Article 40.3.3 introduced by the Thirteenth and Fourteenth Amendments support the Court’s view that the present constitutional rights of the unborn are confined to the right to life guaranteed in Article 40.3.3 with due regard to the equal right to life of the mother.

While it does not alter the outcome of this case, the Minister is accordingly not obliged to treat the unborn as having constitutional rights other than the rights contained in Article 40.3.3.”

17. It is not the function of this case to comment on these referenda cases and outcomes except to say that in so far as Savita’s care in UHG was concerned, the law on termination of pregnancy was as outlined in the 8th Amendment. That position was that if the mother’s life was in danger, the pregnancy could be terminated but not otherwise, such as for example the ill health or distress of the mother.

18. However, it can be opined that in so far as those involved in the debate, whether for “the protection of the unborn” or “the right to choose” are concerned, both sides regard them as serious human rights issues. Views can be emotive. Religion is sometimes cited as an addition to the human rights argument.

Renua Annual Conference 2017

19. Renua, was a political party in Ireland founded in March 2015, and was regarded as a minor political party in 2017 in that it had no Oireachtas members. It’s policies advocated a retention of the 8th Amendment. At its 2017 Annual Conference, the defendant was the guest of honour speaker. In the course of his address to the conference, which roughly composed

80 delegates, he said:

“Savita Halappanavar is the closest they’ve come and we know that that’s a lie. We know it’s a lie that resulted in the journalist who started the lie getting multiple awards from her colleagues.”

Letter Lavelle solicitors on behalf of the plaintiff to the defendant dated 22nd November 2018

20. “Re: Our Client: Kitty Holland Matter: Defamation at Renua Ireland Conference on 25 November 2017

Dear Sir,

We act on behalf of Kitty Holland, who is a journalist for the Irish Times newspaper.

On 13th November 2012, our client broke the story regarding the untimely death of Savita Halappanavar (“Savita) in University Hospital Galway on 28 October 2012. She subsequently wrote a number of articles regarding the circumstances surrounding Savita’s death, the subsequent investigations/inquiries and the public outcry for changes to Irish law in respect of abortion. Our client’s articles concerning Savita’s death since October 2012 gained provenance during the course of the 2018 referendum.

On 25 November 2017, you spoke at the Renua Ireland Conference which took place at the Tullamore Court Hotel, Co. Offaly. During the course of your speech, you falsely and maliciously defamed our client by publishing a statement referring to our client as the “Journalist who started the lie” in reference to our client’s reporting of Savita’s death.

The content of your speech made it clear that the words spoken by you related to our client and that anyone attending the event and or viewing the speech online would be aware that you were referring to our client. A video of your speech is currently still live on the Facebook page of Renua Ireland.

Your allegation that our client “started the lie” falsely implies that she is a dishonest reporter, that she is not fit to be a journalist and that in her capacity as a journalist she was likely to spread false stories and/or lie. Your words have injured our client’s professional reputation in the eyes of reasonable members of society.

The words spoken by you were published and/or spoken maliciously in circumstances where you knew there was no basis to refer to our client in her capacity as a journalist.

Our client suffered considerable stress, anxiety and embarrassment arising from your defamatory publication.

We now call on you to confirm within seven days that you will:

1. Compensate our client for the substantial damage caused to her as a result of your statement;

2. Publish an apology and correction, to be agreed with our client, at the earliest possible opportunity.

3. Take down the online version of the publication.

Should we fail to receive these confirmations within seven days, we are instructed to issue court proceedings against you without further notice.

Yours faithfully Lavelle Solicitors”

The letter was dated the same date as the issuance of the Civil Bill.

Letter defendant to Lavelle solicitors dated the 15th March 2019

21. This letter comprises 101 pages. The defendant stated he could not then afford legal representation and that he would conduct his own defence. It is a letter which covers a broad range of issues, generally in regard to Savita’s death and also concerning abortion. In this regard it covers his views on the plaintiff, the Irish Times, Irish journalism generally, the subsequent investigations following Savita’s death, the Renua speech and the law of defamation, the Catholic Church and defences that he intends to pursue. In general, it opines that there is a bias in Irish journalism in respect of the issue of the termination of pregnancy debate, which he states overwhelmingly favours the repealing of the 8th Amendment.

22. Insofar as the plaintiff is concerned, he at times speaks warmly of her as a person, her parents and her kindness to his daughter. He stated he was not calling the plaintiff a liar, but that essentially the story of Savita was a lie and was started by her. He further states that she should not have been awarded Journalist of the Year by her fellow journalists for the story. However, overwhelming the letter is an attack on the plaintiff as a journalist for the initial story of Savita. He stated he did not name her in his speech, he acknowledges that his “sole reference was to her being the journalist who initiated the story that in due course emerged as substantively false” [paragraph 30, page 11].

“My brief remarks on this matter at the Renua Conference were directed at a cultural orchestration of pro-abortion activists, journalists in particular.” [paragraph 58, page 25]

23. He also robustly questioned the plaintiff’s motives and that of the Irish Times, referring to her pro-choice background and that she was part of the lie as the story developed. An extract of the defendant’s letter to illustrate this:

“For all I know, Kitty Holland may have known the full truth from the beginning, and deliberately peddled a false story to promote her own favoured pro-abortion agenda. At least, I believe, she either tailored the story herself or saw it being tailored in the Irish Times editing process prior to publication, and must have realised at an early stage that the story had become so heavily biased, sensationalised and economical with the truth that it did indeed constitute a lie. But it is possible that she acted initially in researching the story in good faith, but fell silent as her story was adapted within the Irish Times to suit that newspaper’s pro-abortion position, that would amount to a less grievous indictment of Kitty Holland and yet it is unavoidable that afterwards she remained silent as the domestic and international media picked up the bait they had been fed and pumped this largely spurious story around the globe.” [paragraph 36, page 14-15]

24. He stated that the lie was not a solitary action of one individual but involved hundreds/thousands of actors and the Irish Times resulting in the international media reacting to the announcement in a very structured and organised manner.

Issue of proceedings in the Circuit Court

25. Under section 28 of the 2009 Act, the Circuit Court can make a declaratory order whereby a person can expeditiously deal with a defamation claim where the defendant has no defence to the defamation. There is no obligation on the applicant to prove the falsity of the original statement. In these cases, the court does not make an award of damages. This procedure is neatly summarised by McMahon and Binchy at paragraphs 34.319-34.320.

However, it doesn’t affect this case.

26. The Circuit Court is a court of limited and local jurisdiction. Trials for defamation actions are heard before a judge without a jury so the judge is the adjudicator of the law and of the facts.

27. In the vast majority of cases, compensation is the usual remedy sought for persons whose reputation is damaged. The Circuit Court is the lowest court in which an action for defamation can be taken. Damages can range from €0 – €75,000 as set out in section 14 of the Courts and Civil Law (Miscellaneous Provisions) Act 2013. The Circuit Court is guided by Superior Court jurisprudence where applicable.

28. In Padraig Higgins v The Irish Aviation Authority [2022] IESC 13, the Supreme Court gave very useful guidance on the appropriate range of damages for different levels of defamation, as well as, in the High Court guidance for juries:

Level 1: Very moderate defamation: €0 – €50,000

Level 2: Medium level defamation: €50,000 – €125,000

While level 1 and part of level 2 apply to the Circuit Court, the descriptors were based on the Court’s general comments in respect of these ranges and were not prescriptive or limiting. In practice, every defamation case has its own individual characteristics and court decisions are, generally, highly individualistic.

29. Defamation actions can be very expensive from a legal cost point of view. Therefore, for many people it is intimidating to initiate a High Court case that is beyond their means unless a solicitor is prepared to take a case on “a no foal no fee basis”. However, even then, there are substantial risks if the plaintiff is unsuccessful in the action. Legal aid is not available to either party, notwithstanding we are dealing with constitutional rights.

30. There is also the question of the practicalities, for example, a plaintiff may consider what is the point in taking a High Court case if the successful plaintiff cannot recover High Court damages and costs from an unsuccessful defendant who lacks the means to pay them. Even if a plaintiff is successful, it is unusual that indemnity costs are awarded which means that a successful plaintiff will not recover all their costs from the defendant.

31. Therefore, in the absence of an apology one of the most significant issues for most plaintiffs is a determination by the court on the question of defamation. In these circumstances, the quantum of damages is frequently a secondary consideration. However, the award of damages in these cases are seen as a vindication; the reputation of the defamed person is worth more than just an acknowledgment by the court of the wrong committed.

32. Finally, the question of delay may be a factor. In theory at least, Circuit Court cases should be less complex and should be heard more speedily than in the High Court. Though the experiences from the Covid-19 pandemic would in recent times challenge this view.

What is a Lie?

33. According to the Oxford Dictionary, “a lie" is “an intentionally false statement. Therefore, to tell a lie is to tell an untruth and deliberately mislead a person.” The nature of journalistic work is that they have to decide what is true, and what is relevant. Therefore, to call a journalist “a liar” is a serious accusation which goes to their professionalism as a journalist. Journalists need to know how to present information. Accuracy in facts are

essential but they also need to know when they are expressing facts as opposed to expressing an opinion.

34. This doesn’t mean that journalists have to always present two different sides in a factbased article. Indeed, to do so could distort the facts. What they do need to do is to not make up facts and also not to omit relevant facts.

What is Bias?

35. According to the Oxford Dictionary, “a bias” is “a predisposition or prejudice.” The facts are distorted. Journalists influence people’s behaviour and attitudes about various issues. Bias can come in the form of a commercial owner or editor disproportionately exerting influence or otherwise. A biased journalist implies the contravention of journalistic standards in terms of ethics and integrity. In contrast a biased media connotes widespread media distortion. Unbiased political media coverage is important in a healthy liberal democracy.

36. Individually, we all have inherent biases, whether based on our upbringing or life experiences. The way to deal with a perceived biases is to disclose them and to abide by our professional ethical standards; however, most of all, it is our own ethical standards that define us.

37. There is also another type of bias which is also an assault on a liberal democracy. It does this by stigmatization of individual journalists and by stereotyping them. The aim is to shatter their credibility and is an assault on their authority as a journalist. The aim is to stop journalists reporting or at least undermine their reporting. In this case, both plaintiff and defendant would contend that they have been subject to journalistic stigmatisation.

Part C

Introduction

38. The following is a summary of the evidence heard at the trial. It is not a transcript of the trial. It is furnished to give context to Part D of this Judgement. For ease of reading, it is given in the present tense and by each of the parties as they give evidence. Questions [Q] are only outlined where I deemed it necessary to understand the narrative i.e. answers [A].

24th April 2024 Andrew Walker SC, for the Plaintiff, opening address: 39.

• The Plaintiff is calling 4 witnesses: Ms Holland, Ms Justine McCarthy, Dr Peter Boylan and Mr Kevin O’Sullivan.

• The Defendant is calling one witness: Mr. Waters, potentially one other witness.

The plaintiff, Kitty Holland, is a journalist. She works for the Irish Times. She started in the Sunday Tribune and moved to the Irish Times in 1998. She wrote a number of articles around the tragic death of Savita Halappanavar.

40. Mr Waters gave a speech at a Renua Annual Conference in 2017. There was a Joint Committee on the Eighth Amendment of the Constitution debate - Wednesday, in October 2017. Thereafter, Mr Waters gave a speech followed shortly after and was referenced in the speech. It would appear that this was a party conference.

41. Dr Peter Boylan spoke at the Oireachtas Committee. Justine McCarthy journalist was made aware of the speech. She accessed the speech, watched it back and heard the words. The pleadings refer to the statement and issue was made over the context. About 30 minutes into the speech by Mr Waters the following words are heard:

“Savita Hallapanavar is the closest they’ve come, and we know that that’s a lie. We know it’s a lie that in the journalist who started the lie getting multiple awards from her colleagues.”

42. The essence of the plaintiff’s case is very simple – a very simple and wrong assertion by Mr Waters that the plaintiff is a liar and a journalist who started a lie and also a journalist who starts a lie and is awarded for promulgating lies. An issue is taken that Ms Holland is not named. She is not but it is manifest that her identity is made crystal clear – references to a female journalist and a journalist who won awards, soon after publishing the article, she was awarded for it.

43. Justine McCarthy knows Kitty Holland, but they are not friends. She had no doubt that it was Ms Holland who was identified. We say the minute he utters the words, there is a round of applause. The attendees at the conference were in no doubt about who Mr Waters is talking about. Accusing a journalist of lying. Ms Holland became aware from Ms McCarthy of the speech. She accessed the video and she watched it. It was of huge concern to her. She had a discussion with Ms McCarthy who wrote an article at the time to the effect that Ms Holland was contemplating taking proceedings against Mr Waters – 3rd December 2017 (The Sunday Times).

44. Ms Holland will say she was not jumping to take a case against him but decided she had to maintain the proceedings, because during the course of 2018 there was the "Repeal the 8th” referendum. It became a topic of conversation i.e. Mr. Waters calling her a liar. It was in the public forum and the Video was on the internet and at large.

45. The defendant is pleading truth as a defence. He is also pleading defence of honest opinion. We say he is throwing in every defence. Despite pleading truth, he is also claiming qualified privilege. That issue has been dealt with recently by the Court of Appeal. It [the Renua Annual Conference] was not an event that would gain a duty that would require qualified privilege. There were no interests to those in the conference being told that Ms Holland is a liar. He is entitled to free speech, however, in utilising free speech, you cannot to advance your argument and go around calling a fellow journalist a liar. He is perfectly entitled to his views on the issue. It is how you express those views and the defendant knows that.

46. The Irish Times Article was co-authored by the plaintiff and Paul Cullen – this is the article that the defendant is relying on as evidence of Ms Holland starting a lie. It is an important article. After the tragic death of Savita Halappanavar, through a contact in Galway, Ms Holland became aware of the situation and being an investigative journalist, she spoke to various people. She spoke to the Prasads (family friends, doctors). She spoke to Savita’s husband in early 2012; he had returned to India with Savita’s body. She quotes what he says occurred in UHG. What clearly is the issue is where the husband said on the Monday, as a matter of fact that Savita had been informed that the foetus was unviable. She requested a termination and was told “this is a Catholic country”. The midwife at the inquest accepted those words were used. All Ms Holland does is recite what she has been told and what is factually correct and what subsequently came to be correct at the inquest. All the factual matters which Ms Holland published were correct and the HIQA report supports this.

47. Ms Holland attended the inquest in 2013, and in the course of that inquest, Dr Boylan had been engaged by the coroner to compile a report. In that report he sets out his view of the cause of death based on the balance of probability. We say the point is that this article was in its genesis a lie and that Ms Holland by writing this article started the lie. Clearly, for a journalist to be called a liar is very significant.

48. By way of damages, the decision of Higgins v. Irish Aviation Authority [2022] IESC 13, MacMenamin J. at para 166, March 2022 – general damages fall into four general brackets.

- Lowest: moderate defamation – 0 to 50,000

- Medium range: 50,000-120,000

- Seriously defamatory – 120,000-199,000

- Excess of 200,000 – very seldom awarded more than 300,000.

We say this case comes within the second category. You judge are limited to €75,000. [Jurisdiction of the Court] That does not preclude you deciding the case is worth more.

49. We plead aggravated damages – Mr. Waters has not only failed to resile from the allegation that she is a liar, but he has repeated it on a public forum with Gemma O ’Doherty on 1 December 2018 and 24 January 2024. He made it clear that there was no doubt he was referring to Ms Holland.

50. Mr Walker then quoted from 34.51 (page 1258-1259) – McMahon & Binchy:

“When the lay person hears the word “reputation”, there may be a tendency for him or her to think of well known politicians, sportsmen and celebrities who extensively feature in the media. It should be emphasised, however, that in law no such media prominence is necessary to claim a reputation; even the most modest citizen whose travels or fame have never extended beyond his or her own village is accorded a good name by the law in his or her own community. Reputation must not be confused with fame. Moreover, every citizen is assumed by the law to be of good character, and anyone who states otherwise, must be prepared to prove or justify the slight if challenged by the injured party. The use of the word “injures” in connection with “a person’s reputation” in the Act, may initially raise a query, it being a word more usually connected with personal injuries, but it is hardly ambiguous in the context. It is also worth noting that the statement objected to is defamatory even if it only “tends to injure”

the person’s reputation. It is not necessary to show actual injury and this is in keeping with the provision in the Act (s 6(5)) which now provides that it is not necessary for the injured party to prove special damages to establish the tort.”

If the slight is challenged, it is for Mr. Waters to establish that it is correct, and he was justified in saying that.

51. Dr Boylan will be giving evidence as to what views he expressed to the Oireachtas Committee. Ms Holland will say the article appeared on 14th November 2012, prior to which it was held for a number of days as it was legally tested and factually tested to an extraordinary degree. The Irish Times was well aware of the significance of the article.

52. Mr Kevin O’Sullivan will say this is not an article that was written and published in any hasty or expeditious manner at all – it was checked to a high degree. He will say it was the most scrutinised article in his tenure as editor of the Irish Times; that was the level of care taken.

Examination-in-Chief – Kitty Holland

53. I was born in the early 1970s. I studied history and politics in TCD. I completed a Master’s in Journalism in DCU. I worked in the Sunday Tribune and then went to the Irish Times. I have always focused on social affairs issues. I showed an interest in human rights and equality issues such as: travellers rights, women’s rights, the rights of children, mental health. I have two children. I was a general reporter in the Irish Times in 2012.

54. I remember still a Wednesday evening in Oct 2021. I got a call from a contact aware of a case in Galway. A woman had died in Galway. She had gone into hospital miscarrying and that she had requested a termination when told her pregnancy was not viable. She was told she could not have a termination as the foetal heartbeat was still present. She deteriorated and died a week later.

55. This contact gave me a name of someone in Galway. I rang her but she could not meet me. She said a Pro-Choice group in Galway were aware of the case. I spoke to the News Editor [of the Irish Times] and he said if it is true, it is a big story. I tried to make contact with people via Facebook (FB). I had no phone numbers. I found a Galway pro-choice FB page and contacted them through that. I also found a name for her and but the names I was given were unclear, however, I found her death notice on the RIP.ie website. I travelled to Galway and got a phone call from someone on the way, and they said they would meet me in University College Galway (UCG).

56. I met two students who were aware of the case. They said I should talk to the Indian community [in Galway]. They gave me Dr Prasad’s number. He knew Savita. I then parted ways with the prochoice group. I drove to Spiddal, in Galway. The Prasads were friendly with Praveen. They were there when Savita died. They told me the story.

Savita presented to University Hospital Galway (UHG), where she had requested a termination over a number of days and that request was denied due to the foetal heartbeat, she then deteriorated and died.

57. He gave me Praveen’s number who was back in India. The time was 1am in India when I initially rang him. I said I could talk another time. It was late. He said he would talk now. He went through the story again. The bones of the story was what appeared in the Irish Times (IT) a week later. He told me she was denied a termination and that was his and her parent’s primary concern. They could not understand it, "they regarded it as standard medical care where a woman is miscarrying an unviable foetus.” He was very distressed about it and felt a duty on her parents to get to the bottom of what happened. I spoke to Savita’s friends and they were extremely distressed. They could not understand it. That is why they approached the pro-choice stalls on Shop Street in Galway. They were then deciding what to do about it and spoke to the contact who contacted me.

58. Yes, I spoke to Dr Prasad, Orthopaedic Consultant, and his wife, a GP in Galway.

Friends of the family including Madulla who sat with Savita in hospital during the week when she died. I also spoke to an Indian gentleman called Sreni. They [Indian Community] felt like a crime had been committed against Savita. They wanted to report to An Garda Síochána (AGS). They wanted someone to explain the legal situation. I also spoke to Savita’s consultant via the Switch in UHG, who could not say anything as an investigation was underway. I spoke to the HSE, but the main people I spoke to were the Indian community. I spoke to Praveen once at length and I spoke to him twice after the story broke. Before the story broke, we spoke just once.

Then followed an Explanation of the Irish times Article of 14th November 2012

59. I wrote a draft article. I went down to Galway and came back, wrote a draft article and sent it to Roddy O’Sullivan, an Irish Times news editor. He sent it to Kevin O’Sullivan (Editor of the Irish Times). Went to UHG and the HSE for comments. Paul Cullen, health correspondent (the Irish Times) came on board. The first draft was pretty much what appeared in the paper, but we got the post-mortem results showing she died of e-coli and sepsis. There were a number of meetings. We went through the article line by line, checking everything before it went to publication. It went through vigorous checks. There was no one naive about the potential implications of the article. We all know what an emotive issue abortion is in Ireland. There was no way it was going to be published without rigorous fact checks, also the reputation of the hospital; we were not going to be cavalier with that. It was four days before it was ready to go and onto publication.

Going through the Article of the 14th November 2012 line by line

60. I set out what he said to me [Praveen]. The last bit is in inverted commas because it was quoting medical staff “this is a Catholic Country”; “had been in agony” – quoting Praveen; “as long as there was a foetal heartbeat” – that is from Dr Kathrine Astbury, the consultant, she confirmed that at the inquest. She referred to the X case [Attorney General v. X [1992] IESC 1] several times at the inquest and how that was playing on her mind; “amniotic fluid was leaking and baby would not survive” – that was Praveen speaking to me from India; “a doctor said it should be over in 3 hours” – Praveen; “Savita accepted she was losing the baby asked could they induce “as long as there is a foetal heartbeat we cannot do anything””

– that is all Praveen; “that is last time I spoke to her” – quoting Praveen; I did not say anything that was not said to me. It is factual reporting of what I was told, the concern of Praveen, the family, the Indian community and the facts about the post-mortem, quote from the HSE. Every single syllable of the article is factually correct and rigorously researched.

61. There was a Separate article – an avoidable tragedy? An editorial in the Irish Times the following day – I had no part in that and I do not even know who wrote it. I wrote a number of articles on the issue afterwards. It was a story of national and international interest. I attended the inquest into Savita’s death in Galway in April 2013 [8 April 2013 – 19 April 2013]. Praveen gave evidence. Every medic involved in Savita’s care, nurses, registrar, people from the labs, friends of Savita, a large number. It was one of the longest running inquests at the time. I attended every day. Dr Boylan gave evidence. He was the expert witness engaged by the coroner. He read a report into the record and then it was examined and cross-examined by counsel for Praveen and for the HSE.

[The Report of Dr. Boylan handed into court. Page 15 of the Report noted.]

62. In respect of the Recommendations made by Dr McLoughlin:

“Yes, I was there when Dr McLoughlin made the recommendations… The reports and recommendations vindicated Praveen’s account and what was reported in that article… Ms Hooper (HIQA) approached me after the publication of the HIQA report and congratulated me on the work I did on the Savita case.”

“Yes, I won a number of awards. I won four 'Journalist of the Year’ awards.”

“No, I never had any complaint [about the article]. No one ever contacted me and said that this is wrong. People disagreed with the fact that the case was taken up by people to canvass for the liberation of the abortion laws. I have never been accused by people as getting facts wrong in reporting.”

In respect of the Oireachtas Committee [Joint Committee on the Eighth Amendment of the Constitution debate - Wednesday, 18th October 2017].

63. I did not report on it. The political reporters were reporting on it, but I was aware of it. It was an important issue. In respect of Renua, I recall Renua. It was founded by Lucinda Creighton as a fallout by the Protection of Life During Pregnancy Act and its main foundation was pro-life. I had heard about their conference but was not following it. It had been mentioned to me [the speech] [by] Simon Mooney, but when I really became aware of it was when Justine McCarthy (a journalist with the Sunday Times) got in touch with me. When she got in touch, I thought I should take this seriously, if she was concerned for my reputation, I thought I better have a look. That is when I accessed the video. I didn’t really know her personally at all at that time. I [k]new of her on radio, television, articles.

I think she informed me the following Friday. The speech was on Facebook and was very easily accessible.

The Speech was played to the Court.

64. The alleged defamatory statement: – “Savita Halappanavar is the closest they’ve come and we know that that’s a lie. We know it’s a lie that resulted in the journalist who started the lie getting multiple of awards from her colleagues.” That is the video I viewed. Simon Mooney and some colleagues and members of my family had also made me aware. They had seen the video and the comments made about me. Justine McCarthy called me and asked had I seen it and she asked whether I was taking legal proceedings and I said I would think about it.

In respect of why there was a 12-month delay?

65. I was unsure whether to take proceedings, I thought about it a lot. People were mentioning it to me. We knew each other (the plaintiff and defendant) since I was a child. He knew my father. He used to bring his daughter into the Irish Times and she sat on my lap. I quite liked him. There is an unwritten wisdom that you don’t sue another journalist, but it was a really serious defamation and caused me a lot of stress and concern. I eventually thought I have to do something about this.

66. About four people had mentioned it to me, my father was one, he mentioned it a couple of times. He thought it was awful. He felt it was an attack on my ability to make a living and provide for my children. And some colleagues in work said they had seen it. An apology was never received and that remains the case. I know “I have been called a liar and that I started a lie”, I don’t think there are any two ways of slicing that. I have been accused of starting lies, telling lies, misrepresenting facts and being a bad journalist, not being fit for the job. Not quite sure what the lie was but I know I have been called a liar.

67. In response to the question of an atmosphere of untruth. The plaintiff responded “well why didn’t he say that in his speech. He said I started a lie.” I had no doubt that he was talking about me. The Savita story was very much started with me, he referred to she, he talked about the awards. The audience knew he was talking about me. It was clear to other people he was talking about me.

Cross-examination of Ms Holland by Mr Kavanagh SC

68. Ms Holland: No, the proceedings are not about the money. Absolutely not. The video was already out there. It had been shared on social media. The horse had bolted. Q: Why didn’t you write to Renua and ask them to remove it? A: I made contact through my solicitors with the author of the statement. A: I brought the proceedings to ensure that my good name was protected and to call that to account. A: I attended the solicitors a few weeks before the pre-litigation letter was sent. A: At the time, I hadn’t worked with Justine [McCarthy], I don’t think I had ever met her or spoken to her before she contacted me. A: She was asking me whether I was going to do something about it but she did not take a view on it.

69. Q: She contacted [John] Waters and asked him to make a comment? And got another call close to the issuance of proceedings. A: No Justine is a diligent journalist and was in touch regularly asking whether there was any news. Not sure how she learned that I had issued proceedings. A: I started to read the long letter that John Waters wrote back to the solicitor I but did not finish it. I am a very busy person with 2 kids. A: I didn’t fully understand the defence, but I had the opportunity to sit down with my lawyers to explain it. A: It was a week, 10 days after the Renua conference that I first learned about the speech. A: I did not know he was launching his book in Nov 2018. A: I did not know that Waters requested Renua to take down the video – (The defendant action) [It was] taken down on 13 Feb 2019. A: I never made a decision not to do anything about it. I kept an open mind. I knew that there was a statute of limitations. It is not something you do willingly, [issue of proceedings] it is not a comfortable position to be in. [It is] not something I entered into lightly.

A: I had no connection between the issuing of the proceedings and the forthcoming referendum. That was not on my mind at all. I had no involvement in the Repeal campaign. The only thing I did was vote.I might have written articles after the vote. A: [Mr] Waters was the only person who questioned its veracity. A lot of people disputed how significance the balance between medical negligence and the termination and where they overlapped. There were people who felt medical negligence was more important than termination and vice versa.

70. Q: It was not an article without some controversy? A: I don’t think anyone felt it misrepresented the truth, some people were uncomfortable with the truth and didn’t like… there was a pro-choice campaign that took this as a significant event and there was a big march in Dublin a few weeks later but no one disputed the veracity or accuracy [of the article] A: [I] had no involvement with pro-choice group before the story. A: I wouldn’t be out campaigning on it. I never leafletted or spoken at meetings, I would believe a woman should have the right to choose but I would not say I am pro-abortion and did not campaign or have a public profile for that. A: Breda O’Brien [Irish Times Journalist] is a good colleague of mine who is pro-life and I get on very well with her, very fond of her. I would have contacts in all areas. A: I was identified as someone who would do a story well and I am blessed with having good contacts and I have an inbox full of people asking me to do good stories and I would have a reputation for being compassionate and caring who would do a story well. A: The contact gave me a contact for someone who was able to tell me the UHG students met with the Indian community. [I] met with the students for an hour. A: I spoke to Roddy O’Sullivan, [Irish Times news editor] and then got in the car and went to Galway. He said if it is true, it is an important story. We get told lots of things and you have to check them out. The stories have to be verified; you can’t take anything on face value. A: I gave a summary of what I heard from the contact. An Indian woman, not sure of name, had some guesses at first name, had presented at UHG with back pain, was 17 weeks pregnant, was miscarrying, told foetus was not viable, asked to terminate and was told she couldn’t because of heartbeat and that she subsequently died.

A: That there were potential human tragedy element to it, potential legal medical negligence parts to it and potential constitutional implications. [It] was an important story from a number of point of views. A: It was important to enquire how the death had occurred. She was a healthy 31-year-old who had gone into hospital miscarrying, she should not have died, and I had to look into the reasons as to why she died.

71. Q: If your enquiries had led you to a point where it was unforeseen, heart condition, where she was miscarrying, refused termination would that have changed the story? If the termination was not the cause? A: That is a hypothetical question, there are so many what ifs in that, it would still be a story. I did not write the headline. I have no role in the headline writing. It would have been a decision for the news desk on how to handle the story. Q: Was it important to establish the cause of her death before running the story? A: We had the testimony of her husband, a first-hand account. A: It was corroborated by two doctors. Not treating doctors, but Dr Prasad’s wife spoke to the treating doctor and was very aware. She did not want to be quoted. I don’t have my notes [in court] with me, no. She told me she sat with Savita, and she was with her on her last day, she had spoken to the doctors, and contracted a blood infection, was in septic shock and had died as a result. She was of the view that she had contracted an infection of the membranes of the cervix and that was what the doctors had told her in the hospital, and she contracted this as she was too long in hospital. I don’t have my notes anymore. We are only required to keep notes for 2 years. I didn’t put that in the article because the grieving widow gave the same account. The account was the same from all people and was vindicated at the inquest. A: [In respect of the Indian community in Galway] Their main concern was that she had not received the termination when she requested it. They did not have the same level of detail as what was found at the post-mortem, and they were very adamant that there be an investigation. They were extremely concerned and felt that these are people who had not been living here for a long time but they did feel that there should be a criminal investigation and the guards was a place they were thinking of going to.

In respect of the Irish Times Article

72. A: Yes, there focus was on the refusal to termination being the cause of her death. My focus was on reporting their concerns and their very strongly and firmly held concerns and to put them to the hospital and their concerns were vindicated. A: I had been told she delivered the child. A: I did not know the other shortcomings [ medical care]. The intricates to her medical care during the course of that week I was not privy to but they were brought out in the investigations. I did mention in the article that there was an alarm and people were running and bringing antibiotics and bloods. A: It is mainly my story [Paul Cullen is on the joint byline]. He got the lines about the HSE investigation and the HSE saying they were going to investigate and could not comment. A: I did not get to speak to the consultant directly. I rang the hospital switch to talk to her and they held me on one line whilst they were talking to her. They said she on leave.

She relayed through them to me that there was an investigation underway, and she could not comment. A: I had lots of information from the doctors in Galway who were intimately knowledgeable from the doctors they talked to in the hospital, Praveen was a witness to the events and her friends. A: I had no direct representations from the Consultant herself. I was relying on what other people were saying. A: The shortcomings in her treatment were matters for further investigation. This was the first reporting of the story.

73. Q: Did you not think it prudent to insert whereby some caveat or caution that it is impossible to say what caused the death? A: Throughout the article I do make it clear that it is Praveen’s point of view. I did not assert anything other than what I was told. It was clear to the reader that we were relying on his account. A: I reported back to Roddy [O ‘Sullivan]. Kevin [O’Sullivan] was the paper editor. I phoned Roddy on the road home [from Galway] and then I wrote the first draft and sent that to him the next day. There were additions, comments from post-mortem report.

The account from Praveen is what I sent to Roddy [O’Sullivan].

A: I had the post-mortem results and a pathology report the family were provided with. A: That report referred to in the article, I did not get a copy of the report. The Hospital spokesman obviously told [Paul] Cullen. [In reference to the last two lines of the article] I think that is written clumsily.

[Referring to the last two lines of the report] [In referring to a review of the case], it reads “External experts were involved in this review and the family consulted on the terms of reference. They were also interviewed by the review team and given a copy of the report.” A: I think it is bad grammar and I did not write it. It is a slip of the tongue, but they are talking about a review that would be produced and given to the family. Q: You told us every syllable was rigorously gone over? A: I am now saying that that is what it means. There had not been a review at that point. It is not a mistruth. It is referring to review that would be carried out. I will look at that overnight and come back to you tomorrow.

In reference to questions on the nature of the delay 74. Q: The nature of the delay? A: We were checking the story. We had it for a number of days, there were a number of meetings with members of the editor’s office and legal team. We went through the story and confirmed the post-mortem results. We contacted the doctor to confirm she had written the post-mortem report that we had. A: The solicitors are just making sure we don’t defame anyone, and we can stand over it and not in contempt. [It was to make sure] it was legally watertight. A: I had not worked with the solicitor [for the Irish Times] directly. I was in the room with him, but that decision was above my paygrade. A: The solicitor was the most senior solicitor they had. He is retired now. There was no concern, the main thing was to get the post-mortem report and to assess the calibre of the witnesses and sources we had for the story. A: The family gave the postmortem report. We contacted the Doctor to verify the postmortem. Verify, verify, verify. One of the requests for termination was made in the presence of Madulla [friend of Savita]. She didn’t want her name used but was happy to tell me the information. That is a normal thing in journalism.

A: No, they were not concerned that Prasad was reluctant to go on the record. They were happy with his account. He was happy to go on record. He spoke publicly on RTE, I think he was never reluctant. I think that was everything [all the issues]. Q: Why did it cause such a delay if all the boxes were ticked? A: We were carefully going through it over and over again. I was not under a lot of pressure. I was enthusiastic to get it into print because I thought it was an important story. I didn’t feel under pressure. I was a little frustrated. It was held for 3-4 days. It was quite a straightforward story in many ways, not a lot of moving parts. It was written quickly. Normally with a straightforward story it goes into print overnight and this was held for 3 or 4 days but there was no pressure. A: I was a little bit irritated. The Indo [the Irish Independent] had a very scaled down version of the story on the same day. I was not concerned that pro-choicers would go elsewhere if I did not get it printed. Q: [There were] Sunday, Monday and Tuesday meetings. A: It wasn’t a long time. In terms of working days, it was Monday and Tuesday, it went to print on Wednesday. I couldn’t get it before a solicitor until Monday. I submitted it [the article] on Friday so that is where my frustration came from. It felt like a long time, but it probably wasn’t. A: I thought the headline was accurate. A: There was no discussion between me and the editor. I was shown it and asked what I think. I said it looks fine to me. A: There were no other changes made to the story, other than the headline. Not that I remember. There was no mention of it going viral internationally. One person said it would be big on “Live Line” [RTÉ Radio]. I did not expect the international attention it got. Q: Under 800,000 views. At that time, it was the most viewed article at the time. There were many op-ed pieces about it.

Irish Time Editorial – An Avoidable Tragedy – dated the Nov 15 2012 –Article handed into court. 75. A: Yes, I do not know who writes them. My understanding is that the editor takes responsibility for it.

Q: Had something similar to that – that it is not possible to say earlier intervention could have saved her life – would it be a better representation? A: The second paragraph mentions septicaemia and reports the concerns of her family that the refusal for abortion was a central factor to her death.

Re Mark Coleman interview 76. A: I don’t remember the details of the interview.

Re Observer [Newspaper] Piece – 17 Nov 2012 77. A: I knew it was a natural delivery when Praveen told me about it.

Ms Holland continues. 78. A: It was yet to be established by the authorities. I had established that the family had been extremely concerned. She had been denied an abortion and died. A: I had established that her family were very concerned and believed the termination was a factor in her death. I hadn’t access to her medical notes. I spoke to several people including doctors who spoke to doctors in the hospital that she had contracted septicaemia and died. I know the frailty of hearsay evidence, that is why we get as many corroborating accounts as possible. They were witnesses to her dying in front of them and had been refused a termination. They were eyewitnesses to her death.

Transcript of an Interview with Mr. Coleman 79. Q: I am putting it to her that there was an issue with this article from the get-go and she was challenged on this in an interview. It is important to be able to illustrate that it was live issue at the time. A: No one expressed any reluctance to publish as drafted. I can’t remember the changes made to the article from the draft article to the published article. Paul [Cullen] was dealing with the hospital they did not express any concern to me [about the hospital’s version of events].

A: Generally, if in a serious incident like this, if we got that detail wrong, the hospital wouldn’t be shy about correcting us. They didn’t deny it. We had very watertight sources and we were very happy with the post-mortem results. A: There is not a difference really. The refusal of the termination as found in the HSE report and coroner inquest, indicated that the refusal of the termination was a factor in her contracting the septicaemia. You are trying to make a distinction when they are in fact quite linked. Q: That first article leaves any reasonable reader to think that she was refused termination and a consequence of that and that alone she died. A: No, I don’t accept that interpretation. I told you that the article in the Irish Times mentions that there are investigations underway i.e. we don’t know fully what the cause is, that is clear from the fact that there are investigations. Q: The last two lines would lead any reasonable reader to conclude that this [the investigations] has been confirmed by a report. A: My understanding of that, but I will check, but that those investigations were yet to be carried out. I do not accept that a reasonable reader would conclude that it was confirmed that she died because of termination as there were investigations underway. Q: He [Praveen] said the consultant told him it was a Catholic thing. A: The ultimate finding was it was the midwife, but he maintains it was the consultant. I do not believe he was found to be unreliable [as a witness]. I believe that the consultant might have said it. [the consultant denied it at the inquest and the midwife confirmed she said it]. A: He said he believed she would have lived if she had a termination and other people agreed with his assessment. But we will never know. There is always other evidence to disagree. A: He told me that it was his view that a termination would have saved his wife’s life. Q: His solicitor said he never made that statement A: You’d need to talk to his solicitor, but he certainly made that statement to me. Q: Mr Halappanavar has claimed that he never said in any interview that a termination could have saved his wife’s life. A: He made that statement to me. Over the telephone call.

80.

A: [Referring to the Mark Coleman interview] I can’t remember what the purpose of the interview was. I was not told I had to defend the article. As I recall, I was asked about the timing of Savita being given some antibiotics and there was a discrepancy, and I cannot remember what the discrepancy was. A: I was aware that she had to have the D&C [Dilation and Curettage] so the contents of her womb had to be removed. She would not have spontaneously delivered. Q: Why in your article does it say the dead foetus was removed? A: Well, it was separated from Savita. I am not sure that he had told me at that point that she had spontaneously delivered. Everything in the article is accurate as he told me at the time. There isn’t a tape recording of my phone call. The phone call I had prior to the publication of this article, there is no tape. I took notes. I don’t have those notes anymore. There was a podcast and online interview with him for the IT website after the article was published. That was an interview done in the Irish Times studio in Dublin, the day the article was published. This article was not based on that interview. A: He was dialling in by phone from India. The notes no longer exist. I did not keep them for use in writing the book. I didn’t use the notes as much as I used the inquest notes for the writing of the book. I had them when I was writing the book. I didn’t destroy them [the notes], I just don’t have them. I don’t know where they are. I haven’t kept them. A: I think the story itself was the cause of the worldwide response. The line “this is a Catholic country” was certainly, got a reaction and was an accurate quote and the story itself got a reaction. That wasn’t my doing. Q: There was a decision made that they were legally safe to remove the foetus [when the foetal heartbeat stopped]. The impression given in the article is that her family were deeply concerned that that was the case. A: I understood that the response was that there was a lack of clarity for doctors and that played a part in the refusal of termination that is the impression I got.

Day 2 – 25th of April 2024 Ms Holland under cross examination by Mr Kavanagh SC [continuing]

81. The recording in the podcast studio was to have audio content. That is important in the media industry, valuable piece of content. I was asked to do an interview with him because the website people wanted extra content. I had a conversation with him on the phone initially. I went in with the account that I had. I didn’t have questions prepared.

He confirmed. He was the most important source. He [Praveen] was the only member of the family I spoke to. The friends did not tell me about the spontaneous delivery.

Praveen had not told me that at that point. He told me she went to theatre and then it was over. The womb was emptied. This is from memory now.

82. I am not suggesting he wasn’t told by hospital staff. I am telling you what he told me.

[Repeated] I am telling you what he told me. I let him tell me his account of what happened over the course of one week in hospital and that is what he told me. He didn’t tell me during that conversation. I can’t remember when he told me that. It might have been in the recorded conversation [that she delivered the baby]. She [Savita] went to the HDU [High Depency Unit] first and then was transferred to ICU [Intensive Care Unit].

83. He told me and there was very little need for me to interrupt and ask him questions. He told me he had a strong recollection of what happened, he had to tell many people, family etc. I didn’t need to ask him individual questions apart from encouraging him to tell me what happened. Muddled was a word that was ceased on. She was prescribed all sorts of things during that time and he was accurate about what he told me about when she got them.

84. Q: It is clear that he was in error with the antibiotics. A: Well, no, he said she was prescribed them at one point and administered at another point. There were multiple times she was prescribed. Well, I think if you look at the notes, she was prescribed antibiotics on Sunday into Monday and was administered them on Tuesday. I did not have access to her medical notes, I had Praveen’s account and that is what I reported. A: Savita made the request for termination to the gynecologist and to some midwives. A: He says that having been told she was miscarrying, and after one day in severe pain, Ms Halappanavar asked for a medical termination. Q: To direct the reader to the first time she requested. [Reading from the article] “She spent a further 2½ days “in agony” until the foetal heartbeat stopped”

A: He told me she was in agony. It is in inverted comma because they were his words. He was speaking about emotional and physical pain agony. I did not ask what pain relief had been prescribed.

85. Q: [Reading from the article] “The dead foetus was removed”. A: He had not been describing the foetus as a baby girl or by name… He told me that happened on the Wednesday in theatre… He told me he was not with her at the time when the foetus emerged into the world. He went into her all gowned up but was not with her when it happened… He did not tell me it was a baby girl… He was not with her, he said he went in, and it was over… That is my understanding – not in quotes… I let him tell me his account of what happened. He told me that she was in theatre, and I can’t remember exactly what he told me, but he said he was with her, and he went into the theatre and she was crying… I understood that she had gone down for the pregnancy to be terminated and that pregnancy was terminated. Thought it had actually been terminated. Q: Savita was taken to the high dependency unit and then the intensive care unit, where she died of septicaemia on the 28th. A: I didn’t ask when septicaemia was diagnosed. The key matter was that she contracted septicaemia and that is what killed her in the end. When she contracted it would be a matter for the HSE investigation… He told me she was called in on the Thursday to be told she was extremely ill. He was asked what she was doing outside the hospital and could she have contracted something outside the hospital. He was told on the Thursday that she was extremely ill… It was the death certificate, the postmortem results that told us it was septicaemia. I don’t recall Praveen using the words septicaemia or sepsis. He told me that the was told on the Thursday that it was unlikely she was going to make it and the family should be called… He was very fluent in English, but it was his second language, but he did not talk about sepsis, septic shock, he said she was extremely ill and described what she looked like. She was swollen, hot to the touch and he was very worried about her… He told me that on Wednesday he went into the theatre, she was very distressed, she was crying, that is the last time he spoke to her, and she was transferred to the HDU then… He didn’t go into that level of detail with me. He told me that they told him on Thursday she was extremely ill. He did not use the word sepsis in the conversation.

86. Q: You should have asked him when he first knew when she was diagnosed with septicaemia because the doctor had decided that notwithstanding the presence of the heartbeat that they were going to intervene to end the pregnancy. You didn’t make those inquiries? A: What is conveyed in the article is that she was deteriorating and getting sicker and sicker. Presumably sepsis was coming on. That is conveyed in the article, and they were asking for the situation to be addressed in a robust way. Q: There is no reference in your article that they applied the law and intervened where there is a substantial risk to the life of the mother. Mr Waters says that reading this article you are only going to be left with one impression and it does not represent the facts. That there was an intervention, there was a reason for the intervention. A: It does say she was brought to theatre. Q: Yes, but it does not say she was brought to theatre whilst the foetal heartbeat still existed, and the consultant made the decision to intervene - there is not a syllable of it in there. A: It says she spent a further 2 ½ days in agony and the foetal heartbeat stopped and was removed… This is how Praveen recounted the story to me. Q: But a reasonable enquiry of Praveen would have elicited the fact they decided to intervene before the heartbeat stopped A: He didn’t tell me that. I asked him what his recollection was, and he told me this. Q: But you didn’t ask, didn’t probe. It seems to me that you accepted the limited information that was first volunteered rather than taking a further step. A: His account was accurate and vindicated. Q: It was not accurate: he was wrong about administration of antibiotics, did not tell you about the decision to terminate nor did he tell you it was delivered spontaneously A: It was too late by then.

87. Q: You simply accepted an answer that suited a narrative of the article you wanted to write.

You had a particular view, and this article was presented in a way purely to convey a particular impression which was not subsequently borne out by the facts. She was offered a termination; she was prepped for it, and it became unnecessary. And your excuse for not having it in the article is: that is what he told me, and I didn’t press him on it. A: No… The account he gave was vindicated in the HSE report and the inquest. I interviewed him and accurately and faithfully reported. A: He told me that she was brought down to theatre when the heartbeat had stopped. She had got to the point that there is a real and substantial threat to her life. When she went down to theatre the foetal heartbeat had stopped and he was accurate in that [backed up in the report]. Q: The decision was made to terminate, they had to get her stabilised and it is at that stage that she had a spontaneous delivery at 15:50, what I am suggesting is that any reasonable inquiry of Praveen should have been able to elicit the information on when his baby died. She was not taken to theatre to expedite delivery but to stabilise her, but the decision has been made to give her the medication to induce delivery. You did not get any of that information? A: No clearly his understanding was that it was time now to take her to theatre. The foetal heartbeat had stopped, the baby was dead and that is what he told me… It was as he told me, the foetal heartbeat stopped, and she was brought to theatre for the purposes of removing the contents of her womb. A: Yes, we know that there was no need to remove anything now. A: His priority at that point was Savita. A: It was true. She was brought to the theatre as he understood for the purposes of vacating her womb. He was outside the theatre, not sure if he knew that she spontaneously delivered… When he went into the theatre, the baby was there.

88. Q: [Reading the article quoting Praveen] “The doctor told us the cervix was fully dilated, amniotic fluid was leaking and unfortunately the baby wouldn’t survive.” A: That was on the Sunday. Q: “That evening she developed shakes and shivering and she was vomiting. She went to use the toilet and she collapsed.” [This suggests she collapsed on the Tuesday evening] A: That is the Tuesday evening. Q: The report does not mention any collapse on Monday night. There is no suggestion there was any collapse on the Tuesday, but your article suggests it was Tuesday evening she developed shakes and shivering. My understanding is that was the Monday.

A: I would have to read the notes again, but it was Tuesday when she became particularly ill. A: He did not volunteer it. He didn’t tell me she had sepsis. He said she was very ill and by Thursday, extremely serious. He did not tell me what the illness was. I knew she died of septicaemia.

Q: At lunchtime the foetal heart had stopped, and Ms Halappanavar was brought to theatre to have the womb contents removed. -You don’t have that line in quotes, is that because he did not give it to you that way? A: That is what he told me. That was his understanding and recollection. Q: Why is it not in quotes? A: I suppose to break up the text. There were a lot of quotes from him. But that was what he told me, and it was clearly Praveen’s account. Where else would I have got the information. It is clearly his account. He was an eyewitness and deeply involved in the events of that week. A: It is his account, and I was reporting his account.

89. Q: Did someone make the decision to remove quotes? A: It was the narrative he reported to me. It is clear he told me that… She was brought to the theatre to ensure that what was in her body is removed… Praveen’s understanding is that what happened was the foetal heartbeat stopped and she was brought to the theatre… He did not tell me she was brought to the theatre for other reasons [to stabilise her] and I did not ask him. Q: External experts were involved in this review and the family consulted on the terms of reference. They were also interviewed by the review team and given a copy of the report

– that leads any reasonable reader to think that procedure has taken place and the family have been given the report. A: It is not an interpretation that anyone made because no one asked me where that report was.

Email from Paul Cullen, co-author of the article. Read to the court. [In respect of the last two lines of the article]

90.

“I saw the whole article. I approved what I wrote, and was submitted to the editor, Paul approved what he wrote and submitted to the editor. I would have seen the article in its entirety before publication.” A: Nobody made reference to the last two paragraphs being problematic and no one has drawn any issues with it since. No one asked for the report. Everyone seemed to understand that the report was to come.

The sequence of events is laid out in the article. You say other things should be in it, I say it is a complete news story and stands on its own two feet.

I didn’t ask for any clarification on when the sepsis was diagnosed. I did not know whether they had that level of detail. They didn’t offer that information.

A: Yes, I accept that there were around 70/80 people in the room [at the Renua conference], yes, I accept that.

Bringing through the Statement in the address of Mr Waters Mr Kavanagh SC reading from a transcript of the address 91.

“Savita Halapanaver is the closest they’ve come, and we know that that’s a lie. We know it’s a lie which resulted in the journalist who started the lie getting a number of awards from her colleagues. You don’t need to tell anyone, I was going to say something there, but I won’t. I being restrained because I think it’s very important to be measured on this.” Q: He is referring to what the doctors have said – closest they’ve come. Do you accept he is not using any notes in this speech? A: I presume he thought about what he was going to say before [he made the speech]. Q: It is clear that what he is saying is speaking to the requirement of amending abortion laws and referring to what would be a lie and the closest thing is the Savita Halappanavar case. We know that that is a lie. A: He is talking about me. He said I started the lie. Q: Mr Waters is saying that he is not saying you are a liar, but the article started the lie… The nature of the article started the lie. Not that you are a liar. He and his audience were speaking not in isolation but were speaking with full facts and knowledge of the case.

A: The journalist who started the lie. That is an action by me to initiate the deception, to initiate the lie. Q: The lie: the proposition that somehow this constitutional change was necessary because of the death of this woman. A: The story about the Savita case, that I wrote, that I started a lie. I think if you were to ask any person on the street, they would think that. Q: He is suggesting that there is no evidence from any doctor that a woman has died as a direct consequence of the constitutional provision. A: There are many doctors who beg to differ, and Savita would be alive if she was offered a timely termination. We are going to the whole issue of Art 42.3.3. [of the Constitution] and how that had a restrictive and limiting effect on doctors. Q: He is saying that it is your article that you wrote – he is not suggesting you intended to lie or deceive – but the article produced and published conveyed the view that the termination was necessary and had she got an early termination just because she asked for it, her life would have been saved. He is saying that is a lie. A: My views are irrelevant. What is relevant here is that he has accused me of causing a lie. Q: I read a little bit of the letter he sent shortly after receiving the summons. [Mr Kavanagh SC read out extract from the letter] A: It is quite the assault on me and the Irish Times. It is Full of factual inaccuracies. We would be here to the end of next week to go through it. I don’t accept it at all.

Mark Coleman interview transcript 92.

“And again, we only have one. Vin and his solicitors take on what was in or not in the notes. So I mean we are relying all the time on their take on, on what happened… and it is the case that she, uh, termination was requested, and Praveen says that there were witnesses to these requests... If that’s not in the notes, it’s not in the notes.” A: I am not satisfied of anything… I awaited as much as everyone else the for the results of the inquiry… It confirms that we were waiting for the outcome of the inquiry. I hadn’t inducted an inquiry based on the medical notes… I was keeping an open mind… The facts I had were accurate. They were accurate facts.

[In respect of an RTÉ article]

Q: Around the 4th of December, you told RTÉ news that the Irish Times never suggested that a termination of pregnancy would have saved Savita’s life. A: I genuinely don’t remember this. I don’t remember saying that… There is no quote in that article.

[In respect of the plaintiff’s awards for journalism] 93. A: I got the awards in 2013… Last year is the most recent nomination for an award.

Re Consultation with the Editor A: I told him that I had spoken to the widower, Praveen, and told him as I had been told… Confirmed that there is an investigation into the death of a woman who had been pregnant… A. It would have been a team decision to get the consultant’s view [in answer to a question about obtaining the consultant’s view]

Re issue of Bias A: I grew up in a pro-choice family… As a journalist, you rely on the facts and establish the facts and leave your homelife at home.

Q: There was to some extent a worry by you and by the editorial team that there were people on the heels of this story A: Yes, as a journalist. A: The main contacts were the Indian community who went to the pro-choice stall on Shop Street. A: I was not under any pressure from the Irish Times. Every journalist likes to be first with the story, that is what we live for, but I was not under pressure to put a false story out for the sake of being first.

Re Question and Answer Workshop with students in University of Limerick 94. Q: From the transcript [with the students]: “I’m probably not terribly objective on this matter…”

A: Page 16 – yes well I wouldn’t say my own, yes, they are beliefs, my values told me this is a really important story …. I didn’t feel I was compromised in any way. A woman had died who shouldn’t have died… Every syllable in that article was factually correct.

I am happy to talk to you if you want to talk about this issue of bias because of my family background. A: I am inferring because I came from a pro-choice family and would have pro choice views….

Re-examination of Ms Holland: Mr Walker SC

95. BBC Article Letter from Mr. Waters – p. 4 of the letter Q: Has anyone else queried the article? A: No, except well Gemma O’Doherty did.

Evidence of Dr Peter Boylan 96. A: I trained in Ireland and in London. I was a visiting professor in Texas and then I returned as a consultant in Holles Street and was Master there… I became aware of Savita on the morning when the story broke by Kitty Holland. I started getting phone calls about it… The Coroner asked me to give an expert report to the inquest. As I alluded to yesterday, I am still slightly in the dark as to what the defence is. One item is Honest Opinion. To substantiate that defence, he has got to ground that and Dr Boylan is here because as I said yesterday he is here to say what he set out to the inquest factually insofar as it then goes to corroborate the article. Judge: Dr Boylan can be examined and cross-examined on that. I will allow it.

Mr Walker SC Examination-in-Chief 97. Q: At page 12, para 74: what is your understanding of the chronology and what chronology you set out to the inquest? A: At the time we could not do a termination unless the mother was at risk of dying. So I laid it out in timelines from safe to serious death unless a termination was performed.

Her life was not in danger until the early hours of Wednesday morning. At lunchtime on Wednesday, Dr Astbury was made aware of how sick she was.

A: Dr Astbury needed to get a second opinion. Dr Astbury called into the operating theatre to collect an ultrasound scanner to check whether the foetal heart was present. She did the scan around about 2pm and there was no foetal heartbeat. So, termination of pregnancy was no longer an issue. She was extremely ill. There was no room in intensive care. They interrupted the operating theatre list to administer drugs to her to try and save her life. They were planning to achieve the delivery by the administration of a drug which would cause the uterus to contract. But Savita miscarried. The pregnancy at that stage was completed and they could get on with looking after Savita alone. A: They had to empty Savita’s uterus. But as was apparent from all of the evidence. They could not do it. They could not terminate the pregnancy whilst the foetal heartbeat was present unless she was at risk of dying imminently. A: In other countries it would have been offered to her on Monday because the risk of infection was so high, and the chances of the baby surviving was very low around 10%... The standard practice would be to discuss with the couple the reasonableness of proceeding with the termination because the outlook was so dismal… The exact timing of when someone goes from infection to sepsis is a continuum. Septic shock is where a woman is septic, blood pressure is very low and is not responding to medication. A: The two discussions: one with the nurse and she was trying to put the refusal to do the termination in Irish country life and then Dr Astbury, she said she could not do it because it is the law. A: When it was apparent that the baby was dead, then the termination was no longer relevant as the baby had passed. Inducing pregnancy would not be regarded as termination of pregnancy. The signing off a co-consultant is obviated then. Q: Did anyone take issue or challenge your view: A: No A: The coroner made certain recommendations. First recommendation was that a medical doctor could intervene to remove doubt.

Cross-examination of Dr Boylan – Mr Kavanagh SC 98. A: One of the problems was that she developed her sepsis very rapidly. It can come on very fast and be so fast that you lose the patient. And once a woman goes into septic shock, the mortality rate is quite high.

Query from Judge as to what standards were applied. 99. A: In Ireland we would have acted almost entirely with Royal College in London. The American College also issues guidelines. We would have worked almost entirely from the London ones. But it was only around the time of Savita’s death that Irish guidelines came in.

Evidence of Justine McCarthy (journalist) 100. A: I got a phone call from a contact of mine who would ring me to tip me off on news stories… I watched the speech on Facebook… It was the same speech played in court.

I thought that the person that John Waters was referring to was Kitty Holland and I was surprised that someone would say publicly that she, as a journalist, would lie about a story. Every journalist in Dublin associated Savita with Kitty Holland and she won the award for it.

I didn’t know Kitty Holland well. I would see her the odd time when we were working on the same story. I am not sure I ever had any conversation with her.

I phoned her and asked her if she had watched the speech and she hadn’t watched it at that stage. She watched it and rang me back. She told me she believed journalists should not sue for libel and she was concerned about what he said and would consider what she was going to do about it.

I discovered the speech in early December 2017.

I spoke to her again, about a year later.

In the first conversation, I said if you do decide to take any action will you let me know.

She called me about 12 months later saying she issued proceedings against John Waters, and I checked the Courts Service website to see if the proceedings have been issued. I wrote the original article about the speech and the second one was the story that Kitty Holland was suing John Waters.

The first article was in the first week of December 2017, and the second a year after.

Cross-examination of Justine McCarthy – Mr Kavanagh SC: 101.

A: I don’t think a journalist would suppress a story. She [Kitty Holland] answered my questions.

I would have been alarmed if she had tried to influence me in that way [by trying to supress the story].

The point of the first article was to report what John Waters had said. It didn’t cross my mind [in answer to a question as to whether you would be doing Kitty Holland a disservice by publicising the comment]. A: I don’t think she said she changed her mind, because she never made up her mind to sue.

I asked her if you do decide to take some action, will you let me know.

She knows that it is newsworthy.

The contact who tipped me off was actually at that conference [the Renua Conference].

Day 3 29th April 2024 Kevin O’Sullivan, former Editor of the Irish Times – Examination-in-Chief by Mr Walker SC 102. A: I was Editor of the Irish Times from 2011 to 2017.

I worked in the Irish Times for 30 years and I knew Kitty Holland from that time. The then news editor, Roddy O’Sullivan, informed me that a big story was breaking, and it was immediately obvious that this potentially was a huge story and it needed to be handled very carefully. We had a series of meetings about the story during that time within the 48 hours of being notified that the story was emerging. There was a large team involved in deciding how best to approach the story. I was in regular contact with Roddy O’Sullivan, in terms of analysing what we knew and what we didn’t know.

There was a larger team, including the health correspondent, my deputy and our lawyer, David Phelan.

103. A: It was an exhaustive process, it was clear this was potentially a huge story, a controversial story because of the circumstances. We all knew this had to be handled very carefully, meticulously. The reporters were anxious to publish the story as soon as possible but we felt that there was critical facts that we needed to establish to ground the story. There was no rush to print. There was an exhaustive process that went on and went on for months afterwards as the story emerged. Because it was such a big story it was a great relief to me that our journalism was vindicated. At the outset, it was a factbased story. I can’t tell you exactly how many days, but it was a number of days. Kitty went to Galway to verify the facts and interview the relevant people. There was a period of at least 36 hours where we had to check certain aspects of the story. We felt it was very important to put what happened to the main consultant involved and we held off for at least 24 hours to allow her the opportunity to comment on the story and her role in it.

104. Q: [Quoting the final two paragraphs of the Irish Times article] The hospital spokesman said that in general sudden hospital deaths were reported to the coroner. In the case of maternal deaths, a risk review of the case was carried out. External experts were involved in this review and the family consulted on the terms of reference. They were also interviews and given a copy of the report? A: From my perspective, having worked as a news editor and also been a reported in the health area, it was very clear that given the circumstances of Savita’s death there would be two investigations and inquiries, one on the basis of a sudden hospital death and the other on the basis of a maternal death.

Inevitably these investigations would happen and were triggered by the events. A: I had no concern about Kitty Holland peddling her own agenda. It was a fact-based story. We went through it line by line to make sure it stood up to scrutiny and that it was a fair account. It was clear we did not have all the facts at that time, but we had multiple sources which would allow us to publish the story.

Nothing caused me concern afterwards about the veracity of the article. If anything, it reassured me that our process was very good and stood up to scrutiny. As editor it was a cause of some trepidation that we might be challenged on what we wrote, but I think it is fair to say that our journalism stood up to scrutiny. It was validation of the Irish Times approach to a controversial story that was written in the public interest.

105. A: No, at no stage [ to a question was it required to correct the article].

I think it was probably one of the biggest stories during my time as editor and here was a lot of huge stories during my time e.g., Brexit, election of Donald Trump, corruption….[It was] one of the most important stories we had published, because it highlighted issues affecting women in very difficult circumstances and the failure to legislate in such scenarios and to provide clear medical guidelines. It captured all the issues around it and became a huge international story because of that and people began to see what women were being put through. Savita was not the first. The story demonstrated how difficult a story it was for her and her family and her doctors and medical staff. The 8th amendment was not helpful for her treatment and the timing of that treatment… Mr Waters never corresponded with Irish Times over the article.

There were a number of complaints and we evaluated them… Because it was such a sensitive story, we also consulted with our lawyers, but it was not felt that any correction was required… Mark Coleman (journalist) approached me but nonetheless I did ask the lawyers should we correct or clarify anything, and their view was that we shouldn’t.

Kevin O’Sullivan, former Editor of the Irish Times – Cross-examination by Mr Kavanagh SC 106. A: I worked in a variety of publications and various roles as an editor in the IT before becoming editor. From 1997 onwards. This was designed to be a news report. Q: What, where, when, why and how? A: Basic rule of thumb. A: Yes, but you cannot tick every box in every instance, you have to make sure your story is fair and you have as many salient facts in the story as you can. Q: In order to avoid misleading a reader, you have to set out a factual basis to justify the headline? A: Yes, I agree Q: Headlines convey inferences? A: Yes, but headlines are limited in a sense because you have a limited number of words you have to use and that imposes certain difficulty or discipline in writing a headline. Q: Did you write the headline?

A: I didn’t write the headline, I would have had an input on it. The news editor overseas the writing, the journalist submits the story, and the chief subeditor would have put the headline on it and then the page would have been viewed… A number of people would have had an input on the headline as it was a very important case and we were happy with the headline Q: Would you accept that a reader who sees that headline that the inference given to the reader is to understand that she died in a hospital in which she was denied a termination that would have saved her life? A: No, I wouldn’t make that interpretation. The headline is a summation.

107. Q: Normally when one is printing a news story, would it be usual to have some sort of banner which clarifies the source? A: It depends on physical space. The Irish Times style was that you would have two headlines, a main and a sub headline… You can’t be perfectly balanced in a headline, unfortunately. Q: Given that he was a man in mourning, would it have been right to caution the reader that this is what the story is based upon? A: The story was based on a number of sources. A: My own personal view is that Praveen was an exceptional witness, he had a traumatic experience, but his level of detail and understanding was vindicated. I was more than happy that he was a reliable source, he had remarkable attention to detail and recall and that was a crucial part of the story. Q: The other sources were informed by Mr. Praveen, so you had only one source. A: I don’t accept that. A: There was a corroborating interview with a medical consultant, Dr. Prasad, that carried certain support. Q: He was not involved in her treatment A: No, he wasn’t but he would have had a medical understanding of the circumstances that would have supported Praveen’s view notwithstanding they were friends. A: We also had a statement from the hospital, although short, but it supported what we knew. A: We also saw a copy of the post-mortem which supported the manner of the story.

108. Q: Did you ever have any information that told you the sequence of the events, independent of Praveen? A: We had multiple inquiries with a large number of people trying to piece together what had happened, we were not over relying on the testimony of Praveen, we found and verified attentional details that stood up to the story. A: Well it is fair to say that Praveen at that point had supplied most of the detail.

The statement is there from the hospital, we quoted from the post-mortem. Q: But it is not supporting of the sequence of the events, critical is when she was diagnosed with a serious infection. A: That was one of the issues, there was a complex medical issue surrounding the story. Q: Savita was clearly very unwell, and it is fair to say that the HSE inquiry established that there was preoccupation about the foetus at that point instead of the health of Savita that was deteriorating at a rapid rate. A: In my view it was clear that the nursing staff and medical staff were constrained by aspects of the 8th Amendment [Irish Constitution] and that introduced a delay in treatment which contributed to her death.

My view is that Savita was in a very seriously ill condition and the various inquiries would confirm that.

109. Q: By the time she was in a serious condition, a decision was made to terminate the pregnancy, do you accept that? A: Yes.

Q: You did not have any information on when the diagnosis was made that she was seriously ill? A: We at that point published everything we knew, there was nothing withheld and ok you might contend it was an incomplete story. But what we published was correct.

Q: The complaint is about the impression conveyed to the audience on what you didn’t know. You should have realised there was a missing piece of information – when the diagnosis was made? A: I don’t accept that. We had sufficient critical mass, I admit that it was not the full detail of the story, but we had sufficient facts to publish a story that was of particular public interest. Q: Did you ever ask Kitty Holland to ask Praveen when she was diagnosed? A: We repeatedly asked Kitty (Holland) to go back. We did, but in a more general sense, every detail we went through.

110. Q: What was the nature of your fundamental concern? A: Our fundamental concern was what we published was factually correct. We did not have the complete story but there was a critical mass of facts that justified publishing the story of public importance.

Journalism is imperfect in the best of situations.

From that moment on we continuously went back and sought more information. A: Firstly, I reject the view that it was a tabloid presentation of the story. From the get-go there was a large team involved in writing the story and that journalism has stood up to scrutiny and I firmly believe that most of the Irish public believe it and most of our readers believe it. A: And the way the story was researched vindicated the Irish Times approach to the story.

Clearly this was a story about a termination or abortion, that was a central part of a story, it was also a story about insufficient healthcare for women in vulnerable situations. A: Abortion is always a very sensitive issue, so you have to be fair in terms of your presentation. I would say the Irish Times stood up the fairness test in this situation. It was very much down the line and factually based and that was the approach that any reader of the Irish Times would agree we delivered in that sense. It was a matter of public interest, the story had to published and I’m glad we published it and we published it in that manner. A: I don’t agree with that view [that further inquiry would have painted a completely different picture].

I agree that the full picture was not there but that is the nature of journalism.

I think there was sufficient detail that she died of sepsis related to her pregnancy and that was contained in the story.

111. Q: There is no story if you don’t frame it in the way that it was the denial of termination that brought about her demise A: It was a more complex story than that. There was a multiplicity of issues including her healthcare and at what stage she received treatment… The termination was a factor in the timeline in terms of her treatment. Q: Your paper published an opposite-editorial (op-ed) two days later? A: I wrote that. Q: What information did you obtain from the time of the first article to the time of writing this article, that caused you to put in the caveat at the first paragraph? A: I would contend that both are not incompatible. The first story was a news story, the second, the editorial, was a comment… Any reading of the news story would clearly suggest that we are presenting the facts as we know them. Q: Yes, but you did not tell the reader the facts you did not know that were critical to the interpretation. A: It is fair to say there was a delay and clearly the issue of termination was a reason for those delays which contributed to her death. Q: Are you aware Kitty Holland published an article in the Observer? Did you know about that? On the 17th of November? A: I did read it, but I can’t recall the details now.

112. Q: You remember she was interviewed by Mark Coleman? A: Yes. A: The broad thrust of the story has stood the test of time. The broad thrust has been vindicated by investigations and inquiries and that is my position… I fundamentally disagree that this story was somehow the seed of a lie and Kitty was the catalyst for this great lie. I think that is incorrect and unfair to the journalist and to the Irish Times as I don’t think that position stands up, the idea that there is some kind of spin in the background to wage the story in this way, I don’t think that is true. A: With respect, we are not medical witnesses, I cannot give you a medical view on that.

A: It is the delay in the termination, and that is the key thing, I think it is fair to say that that delay was a factor in her death. Q: But that delay was not caused by any theological position or constitutional position the delay was attributed to a breakdown in her care? A: I think symptoms and diagnosis are different. She had symptoms and her health was deteriorating, and the inquiries show the sequence was constrained by issues around the 8th amendment. And our coverage attempted to reflect that. A: We were under no doubt that this was a huge story and had to be handled with great care.

113. Q: Did anyone identify what information you didn’t have and the potential impact? A: Yes, and that would be the norm for any big story.

We had sufficient detail on the timeline that warrant publication.

I can’t recall the specifics, but I do recall there was a lot of conversation about what we did not know, and the decision was made by me that we had sufficient detail to publish, it was an incomplete account but there was sufficient evidence from sources which gave the story critical mass. A: There were a number of sources to this story, and they were reflected in the body of this story. Q: At the end of the day, are these not just allegations? A: No, I don’t accept that… I think that is a gross simplification.

Q. Is it fair to say that a news story that contains allegations are clearly identified as allegations with caveats? A: In some stories, you have to rely on a factual presentation, almost like a narrative.

We very carefully had a factual presentation of what we knew.

We did not say we knew everything; we just presented the facts we had established at that particular juncture, and that was the essence of the story.

It was very clear, Praveen was a reliable witness, his level of details and recall and his testimony stood up from medical witnesses and verified by external independent experts. Q: Kitty Holland accepted on air with Mark Coleman that Praveen was muddled up at the time? There remains unresolved issues where no one knows the truth, the consultant says she does not recall being asked for a termination and refusing it. Consultant said she said nothing about Catholic Ireland. When you say everything proposed was vindicated that was not correct?

114. Mr Walker SC: Objection. None of this was put to Ms. Holland. Mr O’Sullivan SC continues cross-examination: A: I am saying that in terms of what the Irish Times covered on the story, and it was a very big story. The original article is only one element of the Savita story that we covered over many months. Q: The paper version contained two additional subheadings that the online does not? A: The only difference is the format. To do with physical space and how you populate that physical space. Some editors would double edit the online version. As editor, I would have kept an eye on both the online and written version. A: A standfirst is where you have an introductory paragraph explaining the context, usually in opinion pieces.

They clearly had to take into account the woman’s health and whether her life was in danger. Clearly her life was not in danger at that point. Q: Is there any caution in the article to the reader such as by stating that they were mere allegations? A: In our view they were not mere allegations. A: I accept that we did not have the complete picture in terms of all the medical detail at that point, but I think the version of the story we published was fair and factual and I believe Kitty (Holland) went about researching in a very responsible way. To imply we were totalling relying on Praveen’s recall, is unfair and untrue. A: At that point I would have said we need to know everything about this particular case, so the fact that Paul was involved was a natural alliance we would have done for a story like that. We needed every detail we could get about the circumstances because it would become such a huge story. A: There had always been a clear delineation in the Irish Times about news and comment, we were not going to publish anything that we had not researched extensively.

The hospital did have the opportunity to respond and did not respond at that point.

We had established through a variety of sources enough detail for the story to be printed and we presented it in a fair way. We quoted directly from the central witness, and that certainly helped us come to the decision that this story needs to be published.

It would be fair to say we hadn’t all the detail to confirm that if she got a termination she would have survived, but the story did not say that. We presented what we believed to be true, and it is fair to say that through time, the reports and inquests have confirmed the central core of what was said in the story.

115. A: (In response to question from Mr Kavanagh SC) I do not accept your slant on it. It is clear from Praveen’s testimony in terms of his recollection and then in terms of medical and nursing testimony and the conclusion of independent investigators. All that confirms there is a delay. It is fair to say the established medical view is that the termination, in the scenario where the foetus was not going to survive, would warrant medical intervention. We did not publish the full details, but I would contend that the Irish Times coverage was broadly accurate in terms of what was known at that point.

We knew this was going to be a big story and this was our first iteration of the story, and it was not complete, but it was a fair representation of the circumstances.

They were quotes from Praveen, but there was also facts established from various sources in the article.

We were not jumping to conclusion at that point. A: In hindsight I would have phrased the last two paragraphs [of the article] differently but knowing the fact that the two investigations would have commenced from the moment of death and from that point on there is a course set in train. A: I know that I would have said and the news editors would have said that we need absolutely everything on this story in terms of detail, in terms of what he was saying, in terms of verification and multiplicity of sources. A: I would claim that there was a degree of proof there. It wasn’t definitive proof in some respects but this was a credible witness. He was central to the events; his recall and detail was accurate. And the broad thrust of what he said has been proven to be accurate.

The Irish Times would not succumb to some covert operation to get a certain narrative out. We strived to put out news that was very factually based. It is a testimony to Kitty’s due diligence and commitment to the story that she delivered it in that way. The various inquiries have indorsed that position in terms of Irish Times coverage. At one point a member of the HIQA team pulled Kitty [Holland] aside and congratulated her and the Irish Times on her coverage of the story.

A: We established overtime in a series of articles that there was delay and that contributed to her death and as I said earlier the established international medical circumstances would dictate an intervention at an earlier stage, and the 8th amendment made it more difficult for the medical team involved to treat her. We never said there weren’t other contributing factors which there were and when they emerged in various inquiries, we gave them the fullest coverage. When you weigh up the numerous articles we did, they stand up to scrutiny. A: Kitty [Holland] or the Irish Times would claim that we have the full version of the truth in that story but the core of the story is proven to be correct, and we knew at the time the facts we had stood up. It was well sourced and verified where possible.

Plaintiff’s case is closed.

Defence Mr Kavanagh SC – Examination-in-Chief of John Waters: 116. I live in Dublin. I had other jobs before. But I was already interested in music, rock and roll. I started writing for Hot Press Magazine. I arrived in Dublin 40 years ago (1984) and started in Hot Press. [I was] Editor of the Magill TV Guide. Vincent Browne wanted to challenge the copyright of the TV station to their TV listing, and he took a court case to the ECtHR [European Court of Human Rights]. In 1985 I went to the Sunday Tribune as a radio reviewer. Then I was in Dublin Magazine. Between 1985 and 1987, I was appointed editor of the In Dublin Magazine. It was a popular culture magazine, all the events going on in Dublin but also background articles about the artists. It had been strong on political affairs but in an idiosyncratic way. Wasn’t a straightforward news magazine. Towards the end of the period became more of a freelancer and wrote for the Indo [the Irish Independent] and the Herald.

117. Then I went to Magill Magazine. Article(s) about politics, social affairs and investigations. Hard to describe, there is nothing like it now. Vincent Browne sold the magazine to Michael Hogan, and he invited me back in to be consultant editor and I spent a year doing that. In 1989, I became a reporter in the RTE TV Arts programme, Arts Express. I was a reporter, did the film inserts, piece on playwrights, poets, comedy. All that kind of thing. In 1989 I started writing for the Indo [Independent], Sunday Indo [Sunday Independent] in particular.

118. In 1990, took up work with Irish Times as a feature writer. They were not feature articles in the soft sense, they were in depth investigations into things, e.g., Irish water, decline of the railways, suicide in young men. Young men were mysteriously killing themselves in numbers remarkably higher than women. [I] Did an investigation trying to get to the bottom of what was going on. These were features.

119. [I] Started writing my column in Irish Times in January 1991. I wrote that column for 23/24 years. I was also a news reporter for a period in the Irish Times for a year. I was appointed media correspondent, but they define the job as a half correspondent, so they wanted me to work in the newsroom as well. In 1992/3 [I]started working for the Observer for a couple of years. They had an Irish edition, and it was a strong edition at that time but became less so.

120. I was weekly contributor to the Irish Post, newspaper for Irish in England. Based in London. I was doing lots of different articles for different newspapers. Continuing in the Irish Times. I worked there until 2014. In about 2008, I got a second column with the Mail on Sunday. The Irish Times claimed exclusivity on me for some time. Voice today – [it was a] weekly column – it was a kind [of] competitor for the Irish Catholic [newspaper] but a more broader religious outlook. I wrote for them for a year. [I] Wrote for the Irish Catholic after that for a period of years maybe 5 years after. “Traces” – [It is] a magazine of a movement called… Funded by a priest, Italian movement. Interesting treatment of Catholicism in the modern world, rooted in culture and concepts of freedom and desire. I used to write. I was never a member of the movement but was very friendly with them and they became interested in what I was writing about as it was similar. The Village magazine – The Village was founded by Vincent Browne, and he had sold it on, and I wrote occasional articles about various things, Brexit, Bob Dylan. I think that journalism is about informing the public to the degree, not just the facts but the meaning of the facts, have to put in context, explore, be open to people and their prospectives on life.

121. It is a strange thing but when I was an editor, it is not easy to find good journalists. The best journalists are people who have strong convictions in one way or another and the editor tames and directs to find balance and openness to different perspectives, different points of view. I always tried to do that as an editor. They were both in a sense left wing magazines, but we tried to open things up to create balance. I did. I seem to always raise unpopular issues. I started to write about family law in the mid- 90s because I discovered, in fact I written a play about this called “Long Black Coat”, the different men were single fathers, divorced fathers in maintaining relationship with their kids and there was a lack of sympathy for them. In the courts, in the media. And I had a daughter myself in difficult circumstances. I wrote this play in 1994 – it was all about this.

122. To be honest, I would say, I did not recognise [herd mentality], at the start I was slightly left leaning myself. Ireland at the time was very conservative with a small “c”. That was my instinct but when I went to the Irish Times. I found myself changing due to my life and experiences. I stopped drinking for example, that was a catalyst moment for me in my journalism. It homogenises your views. You want to be part of the crowd, part of the mentality. When I stopped drinking, I was isolated, I found I opened up to other views. That is when I joined the Irish Times.

123. I firmly believe that journalism is fundamentally a part of democracy. It is with the Executive, the Parliament, and the Judiciary, it is the fourth pillar of our democracy and for that reason it has huge responsibility for the public and for public interest. It reaches out to society and finds the unpopular issues and give them space and attention and that is something I try to do. The themes of my work tend to go into areas which were not being covered by other people. Even in the Irish Times, there was a certain friction about certain issues – male suicide, family law. I published 10 books, the most recent in 2018. I have some more books written but it is difficult to find publishers.

124. John Waters continuing. A: [In 2018, Mr Waters wrote] “Give us back the Bad Roads”. Book launch November 2018.

I received a text from Justine McCarthy, I was on my way to the book launch in Galway.

I got this text from her. I already heard from her before a year earlier. I thought it had died on the vine. She said she wanted to talk to me. I did not return her call. She is not a person I was inclined to communicate with.

[I was involved in] Screenplays. Broadcasting. A: There was one TV programme I did in Zambia, the work of Irish Aid and to examine how effective the expenditure of Irish money abroad. Another one I did was to trace my family, it was called “Where was your family during the Famine?”.

[I was a] Public speaker.

[I] published two recent books on spirituality and Irish society.

I was appointed a member of the Broadcasting Commission of Ireland, the regulator at the time. I did two terms with them. It was replaced by the Broadcasting Authority, I was a member until 2014. So, we were formulating regulations, giving licenses and vetting the applications. Dealing with complaints from listeners about programming.

Complaints committee. I was on that for a long time. Minister [Dermot] Ahern appointed me in 2003. Minister Eamon Ryan appointed me to the new Authority in 2009.

Renua Annual conference 2017 125. A: [I was] Invited to present at Renua [Annual Conference].

I am not sure how I was contacted but I did have some knowledge of the party. I was friendly with Lucinda Creighton [former TD and Minister of State] who set up the party.

She left Fine Gael [Party] with the impending Bill in 2015 and she had left Fine Gael and started up this party Renua with the express intention on campaigning against abortion. The party did not take off. She left in due course and other people started to take it over. It remained for a few years but never really got real traction, but this was when it was coming to the end. It was clearly not going to change the world in any way, but they asked me to do the keynote speech with particular emphasis on the fact there was a referendum on the 8th amendment coming up. A: I take a similar view to Lucinda [Creighton]. I had already been campaigning with a friend of mind. We went on road and had public meetings. We started at Halloween. I got invited to do this at the end of the November. It was really just at that point rousing the troops and getting the troops mobilised to get on the road. There was no other party in the Oireachtas acting on behalf of the baby in the womb. A: Totally yes, that was my view [8th Amendment to the Constitution should remain]. They were also human rights (HR) terms. They are connected [Catholicism and HR] they are connected in parallel but not in series [like Christmas lights]. There is a connection between the religious impulse behind these questions, but they are fundamentally HR.

A child is a human being and is entitled to protection and that was being forgotten in Irish society. All these discussions were happening over the head of the child. I felt I had a duty to speak as this last vestige of a right was being debated upon.

Judgment of Mr Justice Humphries 126. A: Humphries J in a case – in which he gathered all the rights that might accrue to the child in the womb other than the 8th amendment and put them into this judgment. Wonderful judgment. I wrote about it in Village Magazine. The Supreme Court knocked every right down like a bunch of skittles which left only the 8th Amendment rights. Natural law rights. These rights were antecedent, inalienable, and imprescriptible. We had no right to vote on them. That was the spirit I went into that campaign with and that I approached that Renua speech with. They still had a number of enthused advocates of the child’s rights and were prepared to canvass.

[Typed transcript of the conference speech handed in and John Waters Questioned on it]

John Waters 127. A: Although at this point there were still these ancillary rights identified by [Mr Justice] Humphries J. But at the same time this human being deserved to be treated as such.

Ireland was and remains among the top 3 or 4 countries in the world for childbirth for women and childbirth. [It has the] lowest mortality rates for women in pregnancy in the world. Time and again we heard doctors talking who describe having no difficulty with carrying out operations which are for the good of the mother’s life and health in the legal conditions that pertained. I believed there was a lot of misinformation in the public. Even though this was the sole constitutional protection for the child, it was coming under renewed attack every year as if it was only a matter of time before this was removed. It did not seem to me that there was any case whatever to be made that the conditions described with threatening the welfare of women and others.

[Questioned on a quote from the transcript of Mr Waters’ Renua speech: “The closest they’ve come….”] A: I’m referring to the doctors. This whole controversy had suggested this as a particular case that proved the situation as prochoice people were making it. This case attracted a lot of attention. The people I was speaking too were all intimately connected with the facts of the case. It had become quite an issue for prolife people. In light of the propaganda that emanated from that case. Many people with the best of intention had been waylaid of their normative pro-life views because of that case. I know friends who voted yes because of their sense of hurt, grief and guilt because of that case. This was a signal case.

128.

Q: “The closest they come to persuading the country there was an issue”. A: There was a real danger I saw that this case could be used to take the thing over the line. Closest they come to a case they had been talking about but not delivering on for many years, but now they had a case which looked like it might do the business for them. The lie started with the Irish Times article. The article was the beginning of the lie. The lie emanated from the article and culminated in this massive cascade that went around the world in literally hours and then rebounded back into Ireland and changed our whole demeanour and disposition on the issues. That had for some time being reasonably debated with balance and openness but now that was all lost. The lie was that this woman had died as a direct result of the 8 th Amendment [to the Constitution].

This whole Catholic country. Doctors were called Taliban-ess and fundamentalist.

Savita was depicted as a woman pleading for her life and ignored by doctors fixated on theology. That did not make sense at any level. Catholic theology does not say that.

Catholic theology in this context is governed by the principles of double effect. Where there is a good effect from a particular intervention and a bad one, the good one can be pursued even at the cost of the bad one provided the intention was to pursue the good one. [For example] Administration of morphine to someone who is near death.

Morphine expedites the death but is offset against the idea that they will be able to rest easier and be in less pain.

The proper application of Catholic theology… This idea that she must be in danger of death. There is no clear line of demarcation between the health of the mother and the life of the mother. Once the mother contracts a condition that has the potential of being fatal then the intervention can happen. It is not as if they have to wait, as often depicted, that they have to wait until the mother is dying. That is a fallacy.

I am talking to an audience who are members of party founded on this issue, and it remains their single most important and central philosophy. We know it is a lie.

129. [Questioned on a quote from the transcript of Mr Waters’ Renua speech: “Multiple awards…”] A: What I am getting at there is the awards. The awards are part of an attempt to solidify the lie and to give it extra resilience and to give it credibility that it did not deserve. Not anything disrespectful to the authors. The story did not deserve an award for investigative journalism, because there was no investigation. A phone call was received, some phone calls made, a visit to Galway. That is, it. That is not an investigation.

Important to be measured.

There were all kinds of rumours and innuendos going around about the story. I gave them no credibility or credence whatsoever. The rumour mill was starting to work around. I did not find that engaging. We needed to be respectful to the family for the appalling tragedy. We needed to calm down and speak about this in forensic terms. The forensic material was there to dismantle this methodology that built up and sustained despite three inquiries.

Unfortunately, people got polarised and start to oppose the other side instead of teasing out what is going on.

130. [Questioned on a quote from the transcript of Mr Waters’ Renua speech: “This is the worst thing that has ever been proposed…”] A: I am speaking about the drive to remove Article 40.3.3⁰ from the Constitution. These are antecedent rights. When the article as put in in 1983. Those rights were not raised up on that occasion, they were unenumerated rights and the article just made them visible. My father pointed out that there was real danger because the act of removing it could be implied as the rights being destroyed which is wrong. These are natural rights;

human beings cannot vote on this. Nobody had before voted on the fundamental question on whether you are willing to have these children killed. The voters were allowed to vote down on the rights of the most vulnerable, defenceless human beings there are.

That is the most unfortunate thing about the case. A woman who is heartbroken about the loss of her child, I seen that from the interview [Kitty] Holland did with Praveen, this woman’s terrible experience and death has been leveraged for this obscene purpose and I felt I had to do something.

I would say 80 to 100 people in the hall. 80 sounds reasonable. Mr O’Dowd [Renua] said 80.

I did not know it was going to be recorded and posted elsewhere.

When I received the first legal communication from Kitty Holland’s solicitors, I made contact with [Mr] O’Dowd from Renua and he said he would pass the message along and I checked a few weeks later and it still there. He apologised and it came down then.

It took a few weeks to come down, but I acted once I found out there was a reasonable issue.

13th February 2019 – contact [Mr] O’Dowd 26th February 2019 – repeated the request 1st March 2019 – confirmation it had been taken down Some communications company retained by Renua. I had no idea about that.

I took those steps before I had legal advice. At the time I thought I would have to defend myself and without employing lawyers. I did a lot of preparatory work myself. Did it on a without prejudice basis. I made clear [that I stood by what I said].

131.

Newspaper Articles [newspaper version and online version] handed in to Mr Waters A: The main body of text is identical. To my satisfaction.

The difference I observed is that there are two subheadings divided in the print edition and only one in the online edition. A: Husband claims termination was denied – on the print version It relates to the question of septicaemia; it comes up but never elaborated on from the point of view of timing. The relationship between septicaemia and diagnosis and the request for termination. When the word diagnosis is used in the subheads for the print edition, it refers to miscarriage, it does not refer to septicaemia. That suggests that the author does not know when the diagnosis was made or that the author knows and is withholding this from the reader. That is an explanation for why the emphasis on septicaemia is changed – despite miscarriage diagnosis… The most important thing in this story, the main string that the Irish Times is seeking to tell, that story for its life depends on the sequence of events. There are particular sequences that would have supported the story and that headline. If the diagnosis of septicaemia occurred before at least one of the requests for termination. Then that allegation would have some credibility, some basis, some substance. If that was made clear to the reader, the reader would have been able to make a judgment on that.

132.

A: There were discussions about termination, I don’t know if you would put it as far as requests… First comes the diagnosis and two requests for termination that were declined, that would clearly substantiate the story.

If you had one request for termination and refusal and then diagnosis and then another request and refusal – then the story is still valid… But where the request and refusal occur before the diagnosis, it does not give any credence to the accusation being made.

It is clear there are good reasons for and lots of medical reasons for why the general demeanour of doctors is to allow nature take its course. That is the cardinal sin of this article. It does not inform people. But it also takes some steps, very carefully worked out, to obscure from the reader’s view this question that the question is not something that strikes you immediately. Particularly, the “Catholic Country” thing. Planted as bait.

A red rag to the culture of pro-choice. They are among my criticisms of the article. But fundamentally this is an article that misdirects the reader into a way of thinking of these events that is very partial… A lead story like that is a news story. Generally, have multiple sources. Very rarely is there just one source. There is a misunderstanding at the core of what [Kitty] Holland is telling us, that this is a common place kind of story.

To ground the entire story in the first instance on his account of things without making any attempt to verify what he says is a deeply dangerous thing to do… When did journalists start handing over responsibility to State Bodies? [she (Kitty) said she would leave it to the HSE investigation]… She also said the Indian community went to An Garda Síochána to report to them as a criminal matter. Now imagine we had a An Garda Síochána investigation and the doctors and medical staff dragged out in handcuffs would the Irish Times take responsibility for that.

133. [In reference to the medical staff] A: These people were not bad people, they did not deserve to be demonised in the way they were. The headlines about murder and torture. They made some errors, but they were not criminals. They were doing their best in difficult circumstances. Q: [Dr] Boylan said that Wednesday, two other people died on that ward that night. A: [In relation to Praveen] There is one witness. It is clear he [Praveen] was not in the loop the whole time. He said that he only heard about the e coli on Friday morning. Now it turns out he was informed on Wednesday. For entirely understandable reasons.

Just looking at the other people she said she spoke to. Dr Prasad and his wife and another woman. Nothing of what they say appears in the article. There is not a single sentence that could have arisen from anything they could have contributed.

The pathology report is rudimentary. The phone call to the HSE is a routine thing.

Predictably the HSE said they don’t comment on individual cases. A: If I had been the editor of the Irish Times, and she obviously received poor leadership on this story, I would have asked for the chronology, when did the diagnosis of septicaemia come through. Then next I would have done [I would have consulted] Dr Muiris Houston, the Health Correspondent [with the Irish Times]. You would need to have set two or three reporters loose in Galway for several days to find sources in the hospital, you would have found someone to talk to you. You would also need analysis of the general context to ask the question. Is the 8th amendment an issue in Irish hospitals? There is no story. There is no story if you look for the fundamental fulcrum, it is not there. Without the information about the timing of the diagnosis you cannot say the story in any way stands up in a way that the reader can see beyond question. There is the diagnosis and this is what they did thereafter. That would have justified the headlines. That is wrong. That is fundamentally wrong. It has the appearance of a standard report, but it camouflages the fact it is an interview with a singular individual, pretty much. It is the lead story, on the front page. The picture is of Savita, but strictly speaking the picture should be of Praveen. Journalistically the message being conveyed is the wrong one. It suggests it is an investigation when it is a singular perspective of the story not yet put out in the public sphere.

134. [In relation to the quotes within the Irish Times article] A: [the] Summary of the events [is] before the meat of the article which is the interview with Praveen. There is an interesting thing that happens here. There are different kinds of sentences. There are direct quotes conveyed by double quotation marks. Is that Praveen or is he quoting someone and if so can we be certain that this is the exact phrase he heard. It is hearsay. That occurs in the article several times.

[Mr Waters in quoting the Irish Times article] “She spent a further 2 ½ days in agony.”

Who says in agony? That is a buried phrase, like a time bomb. [It] Has a strong and forceful current to it. “As long as there is a foetal heartbeat” – there is no quotation marks, so we don’t know who said that… There followed three days of the heartbeat being checked several times a day. That is an example of something that reoccurs in the article. Second time we heard about the foetal heartbeat… In Catholic theology, the foetal heartbeat issue is not determinative in any way. If there is a necessity to intervene for the health of the mother, the foetal heartbeat is not dispositive… My point is that Catholic theology has little or nothing to do with this… Quote within a quote – “‘as long as there is a foetal heartbeat’”.

[This is] Attributed to the consultant but relayed by Praveen. It is hearsay. How can any of us say that that is the exact phrase that was uttered… Is that what the doctor would say, it is based on the position the doctor is relaying to the patient. For the consultant to put out her entire position, that is only half of what she needed to say. I’m pretty sure she would have followed up with unless there is a risk to your life, or we cannot intervene whilst you are not in danger. It seems to me that those two things must go together in that situation.

It is indirect speech, it is hearsay, it is a dubious form of evidence journalistically. You might be entitled to paraphrase what someone has said… This is the consultant; the consultant is the highest person is the hierarchy.

135. A: We subsequently learned that it was a midwife who made this remark about a Catholic Country. AMB [the midwife] made clear that she was not speaking in any sense as part of the management of Savita’s care, she was simply engaging with her in a conversational way. Whether this was relayed to Praveen or [whether] he was there? I don’t think he was there; it became fixed in his mind as the Consultant. Clearly there is a world of difference between the midwife and the consultant speaking corporately on behalf of University Hospital Galway. These things go around the world, a terrible caricature of this story. I wrote about this and I said I would be deeply surprised if this turned out to be true. In my wildest nightmares I could not imagine a senior consultant in an Irish hospital saying such a thing. It was likely to be some peripheral person. It was immediately latched upon to propel this story out into a world with huge prejudices at the time about Ireland in that regard. It is clearly someone who has a view of certain things about religion in Irish life who says this in a conversational way to explain to this woman, but it has nothing to do with UHG and the consultant. This is why it baffles me that the editor of the IT says they were vindicated in the reporting of this story. This is clearly not the case.

“Womb contents removed”… Where does this sentence come from? This is an example of the third category [first, Praveen, second, hearsay] self-standing sentence with no apparent support. Is this a paraphrase of Praveen or does it come from another source?... That is a strange thing by the way – “that is the last time I spoke to her” – that that came from Praveen. He goes into great detail about when his wife was in ICU towards the end, he spoke to her all the time. He spoke to her all of the time. She was in a coma, but he was speaking to her. It was very powerful moment. It seems to jar with that statement… The last two paragraphs are really puzzling. [Kitty] Holland told us, we had the editor, the deputy editor, two news editors, the health editor, Ms Holland and yet at the end of all that we end up with two paragraphs at the end which shouldn’t be two paragraphs… It is the tenses that is bizarre, the meaning is very confusing… There is something very strange about the way that is written, and it is extraordinary that someone did not pick it up.

136. A: In general, sudden hospital deaths were reported to the coroner… The last two sentences

– were involved, family consulted, given copy of the report. These are not small things.

If you were reading that article and trying to figure it out it does not make sense. There is no explanatory note. Those sentences are not written in a general sense. It could be an attempt to misdirect the reader. There is a report, maybe there is some reason that they cannot publish the report and maybe this is a representation on what is in the report.

The article conveys that an Indian woman died in UHG suffering from a manifestly fatal illness having repeatedly requested interventions in the form of termination of her pregnancy and she was refused on the rounds of Catholic theology. As a Catholic, that is absurd and shameful. If it were true, it is sufficient grounds to say if this is the price of it lets just scrap the whole thing, but it didn’t happen. It did not happen… By the time I spoke at the conference, I was fully aware of the information. If all that information had been in the article, of course not. Even a sizeable chunk. The key parts.

All we needed was the chronology so we could judge the nature of the allegations. Or alternatively a note that this is very partial account of a grieving husband or the headline. The headline is extraordinary. The headline should be the husband alleges that the death of his wife was caused by overly zealous application of Catholic principles under Art 40.3.3. then you have a very powerful headline, but it is clear he is saying it. Then you go on to seek to verify that and to go through the procedures to investigate it. You don’t need to have official sources for a story like this, [you] could speak to people in hospital under a promise of anonymity. Resourceful journalists would easily find people who know a little of what is going on.

Time is the most shocking thing. There seems to be an imperative to get this story out before someone else did. When I was in Irish Times it did not think like this. We would do it last but best.

137. The opening sentence in the editorial would have gone a long way to qualifying the allegations made. I think it would need a little more than that but that would have been a decent start. Issue a caveat or two with regards to qualifying that and leaving it a little in abeyance. There are other things in the editorial which are interesting… It is very interesting that septicaemia appears just once, and it appears in the first paragraph. That is a generic reference to septicaemia, it is not in the context of this story. It is a reminder form yesterday that she died of septicaemia but not personalising it to the story… As you go on you realise that something is being concealed. [The] Same syndrome as yesterday’s article. We are reminded that this woman had a fatal illness, but the timing is not there. The chronology is not there. It is beyond the knowledge of the reader… It seems to me the author of this might have been aware of the question. It is very cleverly written. Clumsy but clever… [The] Last paragraph of [the] first page – the editorial writer is trying to get into the mind of the medical team as they were being confronted by this situation and despite the subsequent outcome, what does that mean? How are the doctors to know what the subsequent outcome will be? How will they gain the knowledge that would save Savita’s life?.. Inherent in her condition

– what does that mean? Does it mean septicaemia? Miscarriage? Pregnancy? If they knew she had septicaemia, why not say it? If they don’t know when the diagnosis was arrived at, why not say that? Why use “condition” which is ambiguous which would give the reader the intuition that they are referring to septicaemia… Kitty Holland’s article in The Observer [newspaper] – “Savita Halappanavar’s death may stir Ireland to change over abortion” This is a part of the undercurrent of the article. Already just a few days on there are rumblings of uncertainty about the article… Dr Prasad – full story – she seemed to understand he had the full story when he didn’t… That sentence is very similar to the one on the editorial – “Whether the fact that Savita had been refused a termination was a factor in her death has yet to be established.” – that is not said in the original article.

138. A: The lie is that this Indian woman who came to Ireland with her husband expressly to have a baby because Ireland was a safe place to have a baby ended up in this situation because of Catholic theological obsessions and she lost her life on that account. That story is false. The reason for her death is quite clear. They were not vindicated by the reports. An enormous amount of new material came out about the blood tests, the communication failures, the terrible episode on Wednesday morning when Savita started shivering and the nurse gave them a blanket, that is beyond the level of comprehension. Everything was wrong. Murphy’s law run riot. That’s what the story was. That is what they would have found out if they went into the hospital. She is a good reporter but was badly advised by her editor. A little bit of good counsel, advice.

Maybe they would have missed the scoop, but they became impatient and went off halfcooked… If I had written a story and three investigations subsequently found all this new material, I would be ashamed of my life.

Day 4: Continuation of Examination-in-Chief of John Waters 30th April 2024 by Mr Kavanagh SC: 139. [In reference to the letter of John Waters dated 15th March 2019] A: My intention was to conduct my own defence until I became very ill and thereafter, decided I was not capable of doing it on my own.

It is all but unheard of for one journalist to sue another. I cannot recall any particular instance of this occurring in my lifetime, particularly on a subject of acute public interest where both are on opposite sides of the argument. And particularly a journalist of the Irish Times, which regularly opines on the draconian nature of defamation laws and consistently seeks reform… It is very unusual to say the least that one would be contacted in relation to a matter like this by another journalist who is completely uninvolved in the matter before a single legal initiation occurs. Normally the plaintiff files the proceedings and then public comment is made. In this case, that was the other way around. So, from the start it was unusual… The fact I first heard of it from Ms

McCarthy by text on a way to launch my book. My book goes into many matters including the ending of my career in the Irish Times and for that reason there is a real deal of criticism of the Irish times in the book. So, it seems extraordinary that I first hear of this on the way to launch my book. A: No, I didn’t receive correspondence from Paul Cullen, it was unclear what his role was in this thing at all, in the article. In the first instance and the fact that despite his name was on the article he did not receive any awards. It was clear in the aftermath, [Kitty] Holland was speaking as if she was the sole author.

140. A: At that time, it was somewhat oblique what his role was… There were very intense arguments which continued for certainly a year in the first instance and thereafter, intermittently, would erupt when the case would be leveraged in various ways, particularly by the Irish Times it has to be said in the run up to the referendum (to repeal the 8th Amendment). The Irish Times seemed to disregard many of the findings of the inquiries and continued to assert that their treatment of the matter was entirely vindicated. In the run up to the referendum [Kitty] Holland conducted an interview with Savita’s father wherein he was persuaded or urged to encourage the Irish people to vote yes… I did not call Ms Holland a liar. I didn’t use that expression. If I wanted to, I could have. Counsel for the plaintiff have made all kinds of elaborations on what I said.

Including [that] I called her a bare faced liar, which is not the truth… To my mind, public discourse on matters of intense argumentation are not like normal conversations.

We recently had two Referendums in Ireland where a very senior political figure very intensively involved referred to various ministers as liars and accused them as lying.

That is acceptable political discourse as it exists in a certain sense – it is a level of theatre or discourses that is not the same as everyday conversation.

141. A: I said she initiated the process which manifested the lie to the public. I did not know looking at the article how much of it she put together. I had also worked with the Irish Times and frequently had to deal with legal processes when I had to submit an article.

In the normal run of things, it did not occur in the manner that [Kevin] O’Sullivan and [Kitty] Holland referred to in this process. Normally what would happen is [there would be] a lot of phone interaction with the op-ed editor and he would relay to me communications from the lawyers, and we would talk about it, and he would go back and forth. This could take a whole weekend. Very often in a very serious situation where a lot of changes are required, and I would need to come up with solutions. I would end up not seeing the final copy before it hits the streets. I would be unable to comprehend it, it would be jiggled about so much. So, I was conscious of this possibility at all times with Holland that this article might not be her sole work… “Started the lie” is a different intonation to saying that someone lied… I was not the publisher and had not consented to the publisher [of the video]… It goes to the point that the letter strongly stated that the action had yet to commence, and I had an opportunity to respond until any further action be taken. On the face of things then the statute had already elapsed and there was no need to engage at this point because the thing it appeared to me to be moot. I waited to see what would happen and eventually we arrived at the situation where I set out in this document what my defence is.

Legal Proceedings – Continuation of John Waters testimony. 142. A: The Civil Bill was served on 11th January 2019… On the 13th Feb 2019 – I contacted [Mr] O’Dowd to take down the Facebook video… 1st March 2019 – the video was taken down… The proceedings were issued before I had an opportunity to respond to the warning letter. A: [In connection with Renua] The party was founded by Lucinda Creighton who left Fine Gael, [she was] a very senior member of Fine Gael, possible Taoiseach. She left… The audience were people who joined the party on foot of her leadership… Lucinda had left [the party] at this stage.

[Reading from the letter dated 15th March 2019] A: There were very few people coming out at that point to take on this monolith really [the pro-life campaign]… These words when looked at in their proper context do not convey what the plaintiff alleges… [I have] no malice against Ms Holland. She was extremely kind to my daughter at a very difficult time. This is not a personal matter. She is a very likeable person. I believe she was poorly served by the newspaper and the editors… Where a man is seeking to speak about abortion, one is often told it is inappropriate to express an opinion publicly and I think that is very wrong [when questioned why Kitty Holland was famous for the article, but Paul Cullen wasn’t]… There was an extraordinary involvement by the pro-choice movement in the story with the insinuation that they were gatekeeping the story… There was an insinuation by [Kevin] O’Sullivan that only me and Gemma O’Doherty have this view but that is not true. Many people in this country hold this view. All who voted against and perhaps people who chose not to vote hold this view. And particularly in areas of the country where there is residual religious sentiment and traditional communities. Much less in Dublin, I admit.

143. A: I am talking about the HSE report, the coroner’s inquest [already been shown to be false]. I find it astonishing that they can say that their report was vindicated. There may be an occasional nod to the Irish Times article but if you read the evidence and examine and think deeply about what you are reading and the constant re-emergence of the primary issue being the nature of the care being afforded to Savita, then it becomes clear that the Irish Times missed the story because they did not look for it… I honestly held that view. I held it at the time of the Renua conference, at the time I wrote the letter and I continue to hold that view today… I am thinking in particular about the “Catholic Country” element which was a kind of a bait buried in the article which was almost guaranteed to provoke the lie that it did invoke… There were some articles written [questioning the veracity of the story]. Not a great number but that was representative of the ideological views of the media… It seems clear to me that the story of what happened was an entirely different one than the one told by the Irish Times in November… Again, I reiterate, it really is simple. When you think about these events and the possible sequence, the question immediately is: when was the diagnosis of septicaemia arrived at? And we now know when it was, Wednesday morning but at the time it must surely have been possible to obtain that information from some source, perhaps Praveen if he was asked that question, but he wasn’t.

144. A: Again, I stress when you look at the fallout from the reports, the investigations, the sanctions. They were imposed in relation to system failures, and failure to implement protocols and omissions and errors of various kinds. They were not in any way related to the questions raised in that article in the Irish Times… I stand over the entire contents of the letter. It survives. It is as if I wrote it the other day… A caricature was drawn against Ireland that was unrecognisable by Irish people. The caricature has not been true for decades and this is constantly dragged up in promoting certain narratives with a view to promoting some progressive agenda. It was unimaginable to me that a senior consultant would stand by a bed of a sick woman and remorsefully explain that Ireland was a Catholic country, and she could not receive the care she needed. It was unthinkable… It was proven in the inquest that AMB, the midwife, who had been a member of the team but had been engaged in a conversation concerning, yes, it is undoubted that the consultant made some comment in relation to the heartbeat and so on and this elaboration by proffered by AMB conversationally. There was nothing malevolent, but she was seeking to reassure to explain how Ireland differs from India who has had abortion regulation since 1971 for up to 20 weeks. I immediately recognised that. I cited two instances which it is comparable to: one was a comment by Cardinal Connell in an inquiry to do with child abuse – he was being economic with the truth, it was to do with tenses, there was allegedly a payment to people because of child sexual abuse and he said a payment is not made. He hadn’t said it had not been made. I also cited Pat Rabbitte (former TD) at the time of the Father Brendan Smith affair where he stood up at the Dáil and said he would produce a letter requesting that some cover up be initiated and he said that this letter would rock the State to its foundations. And I wrote that the letter did not exist.

145. A: If I had been editor, I would have said that I don’t believe this is true, can we not make sure? It is highly defamatory of the consultant and if it is wrong [the consultant said that it is a Catholic country], it destroys the story. For her to say that would be effectively the hospital stating that this is its policy. The headline clearly insinuates, and the implicit content of the whole article is that a termination would have saved her life. It is the only thing fundamentally suggested by the article to the reader. That is the reader’s takeaway from the article… The last paragraph seems to strongly suggest that the report was conducted, given to the family and somehow relates to the content of the article. This is the only thing the article is about, there is no other content in the article.

Cross-examination of John Waters by Mr Walker SC 146. A: [I am] Fully aware of the provisions of the Defamation Act 2009 and the defences.

Q: [Mr Walker SC questions Mr Waters in relation to his work as a columnist for the Irish Light newspaper] A: Irish Light – it is a newspaper. Initiated 2 years ago. My role is described on the title page as associated editor. The newspaper is edited by Gemma [O’Doherty]. My contribution is as a writer of some articles.

Different publications have different editing procedures. It depends on the publication.

Daily newspapers would have full time procedures. A monthly or bi-monthly would have a different procedure and would not resemble that much. A: I worked for the Irish Times for 24 years. Where there is a major story in train there may be a more exhaustive and specific dedicated process as opposed to the routine reading of material on a daily basis… In 2012, I was employed by the Irish Times as a columnist. I was also freelance. I had a column in the Mail on Sunday. I also write a bimonthly column in the Irish Catholic and Traces Magazine in Italy… I can’t say when I read the article for the first time. It is a long time ago. I can’t say precisely when I read it, I read it in or around the Wednesday, I’m sure. In any event, I would have heard about it immediately and would have read it as quickly as possible… Many things agitate me. I don’t particularly think the timing of first reading is memorable. It is not as if where were you when JFK was assassinated. I remember reading the article. I have no doubt it was in or around the day in question. I can’t say what time of the day it was or where I was, I was just reading the newspaper. I can’t remember the minutia of that particular day… No, I think both [the headline and the article] are equally important.

The headline first draws the reader in and tells the reader what they are about to read.

The reader will approach the article with a sense of what the headline says and then seek to find evidence of that in the article. Tell them what you are going to tell them, then tell them, and then tell them what you told them.

147. Q: “denied a termination” A: It is a quotation from someone but that is not self-evident. On first read you simply read the words… When you read the article, you ascertain who is being quoted… I would have read any material in the paper concerning this story for sure. I am looking at the headline and the story contained therein, and this is the cardinal source of the story, everything else is elaborative, here is the core facts and that is the essential statement of the newspaper on the story.

Q: Were you aware of the stress testing the article underwent before publishing? A: No, I wasn’t.

Well, I would not agree with that. The level of scrutiny is an ambiguous phrase. I was a freelance contributor in the Irish Times. I was not working as staff. In that context, I would be in the office but at this stage I was not attending at the office. I was working remotely. I would not have been aware of what was happening in the building at that point… The scrutiny did not surprise me in the sense that there is a process. I heard of such things happening before in the Irish Times in terms of testing… I would question on whether it was fact checked… I have made clear that the central point of my critique of the article relates to the timing of the diagnosis of septicaemia, the word septicaemia is used in various contexts in the article. If you are going to tell a story which relies upon the assertion that a termination was requested by a woman suffering from a potentially fatal illness, then you will need to know when that potentially fatal illness was diagnosed.

148. Q: Sepsis had been mentioned to Praveen and Savita on the Monday morning. A: That is not in the article. Where would the reader have figured that out? Q: Doesn’t it set out in a chronological fashion the times the termination were requested? A: It does, yes, they name certain times. The Monday morning, the Tuesday morning and then Wednesday morning. At lunch on Wednesday, there was no heartbeat. [John Waters continuing] You see but the suggestion in the article is that the heartbeat is the sole criteria and that is not true. That is not the law, it is not Catholic theology, if that were at all relevant, and not medical guidelines, the other criteria is the mother’s life and risk to that.

It seems to me that there is phrase going around the life of the mother as opposed to the health of the mother. That arises from a Supreme Court judgement in the case of the 14th amendment appeal put to the Supreme Court by President Robinson but it is in the context of travel and the criteria would be entirely different to a medical situation.

Putting the life as opposed to the health of the mother. I do not believe that is in anyway is what goes on. There is a spectrum, and the clear understanding is once a diagnosis of something like sepsis is made, that decides the matter because it is potentially fatal and at the point of discovery of that condition, a termination would take place. There were delays here, disastrous mistakes. The patient was not seen by the consultant for several hours, smell indicative of sepsis, this not relayed to the doctor. Various hours. The diagnosis of potential sepsis on the Wednesday morning.

But we do not know this from this article.

149. Q: You are relying on the HSE report to corroborate that this article is wrong, so you cannot take the good bits of the report and ignore the bits that do not suit you. It is stated that on the Wed morn the issue of a termination was raised. A: I recall Dr Astbury actually said that they would now have to consider expediting the delivery of the child regardless of the foetal heartbeat which goes to the point I was making. There was no insistence on the heartbeat as a criterion for intervention or nonintervention. The primary criteria is the health of the mother and risk to her life and that process was set in train and was continued, albeit with some delays. I agree with Dr Boylan when he talks about Wednesday. Q: The first two sentences confirm two investigations were underway and she died of septicaemia. A: Yes, correct. Q: Praveen also reports things said to him by others. Q: There is nothing wrong with hearsay in newspaper article? A: No, nothing wrong with it but the meanings conveyed must be accurate and authentic to the context it was said in… The comment by the doctor is not an exhaustive summary of the doctor’s advice. The context is that this is not a summary of the situation. That is half the equation, and the other half is… We know from the inquest that Dr Astbury denied every saying that.

150. Q: But Praveen maintained that Dr Astbury said this? A: I am not saying he is a liar, but he might have been muddled, as Kitty Holland said.

I am not criticising him in the slightest but the management of the story, he ought to have been more closely examined and a proper chronology of events derived from him so it could be cross checked to ensure he would be represented accurately. Q: Your view is that they went off half-cocked?

A: Yes. Well, they could have asked him other questions. She admitted in her evidence she did not ask him these key questions… They are alleged facts. They were not vindicated. Q: The two last sentences. A reader has been told twice there are two investigations going on. It is no way leading the reader to any suggestion a risk review was carried out. A: I am afraid it is. I would disagree with you. This article allegedly was poured over by 6/7 senior editors, authors, subeditors, legal team and yet none of them managed to note that these two paragraphs were incoherent. This is the Irish Times. The Irish Times has always taken pride in the quality of its subediting. [John Waters continuing his response] A: When I was there [the Irish Times] the level of scrutiny was very high. The idea they would have allowed two sentences like this to go out, two paragraphs… That is clearly a call – it is a past tense, it should be a conditional tense. This is not the Sun [newspaper], this is the Irish Times… There is no possibility in my view that this could have been vetted by a sub-editor after the fact.

151. Q: By April 2013 and June 2013 when the reports came out, it was quite clear those reports were not around in Nov 2012. A: That is true, but we are talking about the immediate effect, the impact of the article.

I would like to expand. The point about the article, most of what is of significance occurred within the 24 hours. It went around the world unchecked and rebounded back in Ireland with a profound effect on Irish culture and mentality. The Irish Times cannot rely on what transpired out of several reports when it failed to adequately investigate the matter in the first instance.

It is very strange for newspapers to set its faith in a state body. Newspapers hold these bodies to account.

There is a very radical point arising that any reader looking at that last paragraph casually they would find that statement and assume that somewhere there were reports and very likely that these reports were used in the composition of this article. Q: Did you see the Indo [the Irish Independent] article on the same topic on the same day? A: Yes, I did. A: It is a clear inference drawn from the Irish Times article.

152. Q: Are you aware of anyone who believed that there was a report already issued? A: People that I have put it in front of have done so. I have asked people casually – “Read that and tell me what that means?” … It needs to be made much clearer. Q: No one wrote to the Irish Times wondering where the report was? A: So, they say. Q: It is quite clear the coroner’s inquest had not taken place. A: The problem does not arise in the sentences intrinsically. It arises overall by the confusion created by the paragraphs seen in particular by the subdivision of the two sentences from the two others. There is no requirement for a new paragraph. [Kevin] O’Sullivan suggested it was only in the online edition. If you look at the print article, the same subdivision occurs. It was an intrinsic part of the composition of the article and intended to have some purpose. I cannot believe it would pass the sub-editors of the Irish Times A: With a very careful reading I would agree with you, but the incoherence survives that.

What you must conclude that they have missed ungrammatical commentary that is at the heart of these sentences because they do not convey literally and if read in isolation, they are very confusing… I noticed it at the time that it was bizarre. My first impression was where is the report… It seemed at first [that they may be suppressing the report].

A report is referred to in the present tense. It seems utterly clear there is a report… You say [Paul] Cullen supplied these lines, so we are not talking about Kitty Holland. He may have been working remotely from the creators of this article. The impression I get is that he was not acting jointly at a desk with Kitty Holland.

153. Q: But it does not attribute anything to the Irish Times and makes a far more wide-ranging assertion to what was said in the Irish Times article. A: I do not agree. A: I am very familiar with journalistic practice in Dublin, and I can tell you this article was entirely composed of material extrapolated from Irish Times article. The article was available prior to midnight on the 13th of November. It was shown on Vincent Browne.

I’m 99.9% certain that the Indo [the Irish Independent] copied this article from the Irish Times… I doubt if they would admit it. But from my experience with dealing with the Indo [the Irish Independent] this is their modus operandi. Q: FS appeared on Morning Ireland [RTE news and current affairs Morning Radio programme] on the 14th of November and spoke about it. A: I believe that this article was provided as a response to the Irish Times article. There is nothing in it that cannot be extrapolated from the Irish Times article. There is peripheral material but nothing germane to the central story. Nothing new in the context of Savita or her husband. They have no new source to elaborate anything. Q: Does the first sentence not go further than the Irish Times article? A: It is a clear implication of everything in the Irish Times article… I have no doubt he [FS] appeared on Morning Ireland. I say this as a journalist who has experience of the Indo [the Irish Independent]. [Judge notes Mr Waters briefly elaborates further]

154. Q: [Questions Mr Waters in respect of Praveen’s interview with the BBC] A: I am aware of that… The BBC did a separate interview with him on the 14th of November.

A week later his lawyer denied that ever happened.

I don’t know when I became aware of this interview. Probably in the course of that week. Q: Given your views, this is the husband saying in his view that a termination would have saved her? A: That is an extrapolation from the Irish Times article. It is not that it is not clear. It is implicit in the article that that is the story. That this woman who was denied a termination would not have died if she had been given one. It is clear from the headline alone. Q: Your article in the Mail on Sunday [newspaper]. In that article you don’t take any issue with the Irish Times. A: I question the very basis of the allegation of the Catholic Ireland quote. A: I don’t say that the Irish Times are misleading because I am waiting to see what would happen. The story is still unfolding, and we are hoping for more information.

A: This is a commentary on a news article which published new information containing a very delicate, extraordinary matter. This is not me intervening with new facts or asserting anything factually different. It is not comparable in the least.

155. Q: This article makes it clear that there will be reports? A: What I am talking about is the possibility of confusion being generated arising from the way it is phrased and the implausibility that editors read that and made no attempt to change it.

The purpose of the article [the Mail on Sunday article] is not to call out the Irish Times. Q: Why did you not call out the Irish Times? A: I am not critiquing the article at that level. I am talking in a general sense that something that has been let loose into the culture. I was in a process of writing about this which continued in other articles, TV, radio.

This was an ongoing discussion had for many months that I participated in. A: You are missing the point Mr Walker [counsel], by the time I spoke at Renua we had already three reports. We did not know the facts at that moment in 2012, and the main reason we do not know them [the facts] is because the Irish Times did not get them before publishing.

A person who has lived in this country as long as I had and had experiences dealing with the rages wherein Ireland’s past is constantly being attacked, I have seen these devises used before whereby this is caricature.

[Mr] de Valera’s speech became known as “The Dancing at the Crossroads speech”. In that speech, he does not use the words at all.

I am raising the questions that the editor of the Irish Times should have asked of Kitty Holland (at the end of this article). A: This article is about the story that has now transfixed the nation. At the time, it was clear as to what happened. We do not know at this moment whether the Irish Times story is true, and to what extent it may be true. As it emerged, the story was not be true, and the Irish Times did not go through the most rudimentary procedure of asking the right questions to Praveen to enable the Irish Times to write a much better article and to allow the readers to be more comfortable in understanding what actually occurred.

A: My article is a commentary. It is not conjecture; it is an essay reflecting on what has emerged. It is not a news story. It is a column. It is a commentary on that. It is extraordinarily prescient.

156. Q: [Mr Walker SC questions Mr Waters in respect of the Inquest] A: I did not attend the inquest. Did not get the transcript of the inquest. I relied upon news reports of the relevant sections I referred to. I read the transcript subsequent to the inquest, a year or two later.

I read Dr Boylan’s report from the record.

Yes, I saw the chronology in Dr Boylan’s report.

I did not recall what you referred to in page 15 of Dr Boylan’s report. A: I cannot recall how I got the transcript. We were in the course of preparing for the referendum. It became imperative.

Myself and my friends who were engaged in combating the attack that was being mounted on Article 40.3.3⁰ of the Constitution.

I do not recall how I got it. I did get it. I do have a copy some place.

I have gone through loads of material. I was aware of its contents. I am aware of Dr Boylan’s position.

Continuation of Cross-Examination of John Waters by Mr Walker SC 157. Q: [Questions Mr Waters in respect of Dr Boylan] A: He expressed two opinions in two different contexts; they cannot be conflated. I would interpret his opinion as meaning that within the law the intervention could only occur on Wednesday morning.

My understanding was that Dr Boylan was not here as an expert witness. He was here as a personal witness and that is a different matter. Q: [Questions in respect of the Oireachtas Committee] A: I am aware of Dr Boylan’s view. I did become aware of what Dr Boylan said to the Oireachtas. I would have read that. Can I qualify that? Dr Boylan is well known as an advocate himself and is an advocate for the liberalisation of the regime for termination.

It is not the same to cite him here speaking in a political context as putting it in a medical context. A: I think [when] I went on the road at Halloween. I would have given different speeches in different contexts. The speech was not necessarily similar. I speak without notes all the time.

I had been invited probably a month in advance. [Mr] O’Dowd asked me. I can’t see why I wouldn’t want to concede it. Nothing hangs on it [why he didn’t reply to that question in Notice of Particulars].

I know the subject that I will speak on, but I don’t think about it for weeks in advance.

I speak about the legal context, the natural law context, it depends on the particular meeting and context and what is going on at that time.

Michael O’Dowd was the chairman [of Renua at the time] They were a dwindling party at that point, and there was not a great deal of interest in their affairs at that point.

158. Q: Did you notice there were two cameras in the room? A: No. A camera can be a telephone… A camera is not necessarily on a tripod. It can be a small mobile phone.

The quality of that video was appalling.

It is a possibility that anyone could be videoing the speech.

I did not make it a condition that there be no videos.

My wife did video me. We only discovered that recently. She sometimes videos my talks for her own retention. There is no particular use being made of them. Q: Kitty Holland is the only person alluded to? A: Yes. As I explained before the context of that and the point of it is to sum up the idea that the journalistic profession is engaged in seeking to promote this agenda. The journalist awards to each other is a nod to the ideological approach to the article.

We in that room are pitted against this slant and particularly the Irish Times, I am talking to like-minded people about that.

I stand over everything I said. That is why I am here. Q: The import of what you said is that you were saying that she was a barefaced liar? A: I did not call her a liar.

I have never sought to deny that I was speaking about Ms Holland.

I did not name her. I did not deny it. It was quite clear who I was talking about.

159. Q: Did not clarify with Ms Holland before making the speech? A: Even though Ms Holland said it seriously defamed her, she made no attempt to have it taken down [the Facebook video].

I did not consider it that remarkable of a statement. I was shocked to find out she was thinking such a thing [bringing defamation proceedings].

I did not believe this statement would cause utmost concern as it was said umpteen times before.

It was by no means vindicated and the article in its original format was deficient in several respects but again to emphasis by missing the most critical question.

There is no consideration whatsoever about the child’s welfare and humanity and I reserve the right to stand up for the child.

I didn’t say she [Kitty Holland] was a liar. I said she started the lie which means she is responsible for writing the article.

160. Q: You can’t just have an honest opinion on certain things and be protected from defamation. A: I am aware. There are parameters. But my point is what I said is not what you have imputed. I did not say she was liar, I said she started the lie. This is what I intended.

Everybody associated with Kitty Holland and the Irish Times repeatedly assert that this article is being vindicated. It has not. There is a massive amount of material that completely shifts the grounds on the understanding conveyed in that article. Many people have been misled. Many people I know have voted in the referendum against their natural instincts because they were so moved by the plight of Savita.

[It is a] cunning piece of propaganda and a very damaging one.

I always find that when people, just before they destroy your right to speak their mind, they enter a caveat that you have that right. We have a right to speak our mind and express our views and it is vital because only in that way can we preserve our freedom.

The last paragraph is just one point among many. What I am talking about is an article which has created a massive cascade of reaction around the world based on a misunderstanding conveyed by misdirection which resulted in many people – Ireland murders an Indian dentist – The doctors ignore Savita’s pleas [ it is as if they ] essentially they take out their rosary beads – and that is untrue, that is a grotesque lie against Ireland and the doctors notwithstanding the flaws in their care. They were certainly not kneeling around the place saying rosaries whilst this woman died which is the clear implication of this article.

[In respect to a question about Mr Water’s 12 defamation actions] 161. A: In that situation, I had no recourse whatsoever. In every instance I never sued a journalist personally. I sought to resolve each matter straightforwardly, seeking retraction and it was always refused… The other three I can go through… The first one was in relation to a well-known journalist in Ireland who in a situation where I had come into conflict with his employer paper… He wrote a book for which his publishers commissioned me to write an epilogue to expand the thesis of the book. The fee agreed was €500. He had to pay that personally. There had been a payment of €500 for that purpose and in the end, I was able to locate the cheque. And the case was settled. Mr Waters [Continuing] A: I did not sue the journalist personally. A: There were two then which were related. One of them began on television on RTE in 2011. The situation was that a drag queen blurted and made an attack on myself and others calling us “homophobes” without proffering any information. I asked RTE for a retraction. The individual I spoke to, the producer, said they spent the previous day searching for evidence. They refused to withdraw the allegation. I gave them an ultimatum and in the end said we had to go to court. A settlement of €40,000 was reached. I did not sue the person who issued the slur in the first place. A: I wrote a long letter of my concerns about different aspects but not disputing the validity of the claim to some kind of form of gay marriage. The slur was in this context. When the matter occurred, I had a question in my mind whether this individual would step forward with a bit of a scoop. She had access to something that would disprove the slur.

But instead, she launched an attack on me. A malicious attack emanating from within

the Irish Times. I had already indicated my intention to leave the newspaper, [due to] deterioration of its oversight. [Kevin] O’Sullivan declined to answer my emails.

162. A: I did not take steps to see if the speech would be broadcasted. I did not believe there would be a recording of it. I saw no evidence of anything that would strike me as a formal recording process. Generally speaking, if someone wishes to record you, they ask your permission. I did not see or meet any journalists that day.

I do not recall [a photo with Mr O’Dowd and Mr Waters at the event]. It may be a photo supplied to some newspaper by Renua itself.

In conventional political discourse, people call each other liars willy-nilly. I did not do that. I referred to a scenario.

I found it unbelievable that someone could sue another journalist for having different viewpoint. Particularly one from the Irish Times. Q: [Questions the Previous Defamation Actions taken by the Defendant] A: This is the situation. I have taken twelve defamation actions in my life. Nine of those were in respect of incidences that occurred in respect of my daughter. [These were] circumstances where our family affairs were before family courts. And I had taken several injunctions in which I sought to protect the privacy of my family in circumstances where I was disqualified from speaking about those matters due to “the in-camera rule”… One instance of being accused as being a bad father. Against the Sunday Times. In 2001, I think. Several days in High Court. I won that case in front of jury. The late Terry Keane wrote an article arising from an event in the Abbey Theatre in which I made a speech. I made a critique of the play and, as a result, she wrote an article accusing me of being an unfit father. I was accused of being unfit to bring up my little girl. [I received] €87,000 in damages.

[The contents of the letter dated the 15th March 2019 is read] 163. A: It is extremely interesting that out of all the people she might have sued she chose me.

A journalist who works for a newspaper which is continuously criticising defamation laws, takes a case against a journalist engaging in a public argument about a matter of acute importance.

Renua is the publisher of the video. I spoke at it [the Conference]. It is not my account.

I do not have a Facebook account, I never had one. Q: Last January, and up to last Monday week you furnished a list to the court of up to 12 people to give evidence A: At the time when I initially took on this case, I was defending myself. Then I became very ill, and I was unable to do anything for several months. And Lavelle [solicitors for the Plaintiff], despite a doctor’s certificate, were intent on hounding me repeatedly during that summer. I found a firm [of solicitors] in Dublin through an American friend, “Johnsons”. They had a particular strategy. I became concerned about the tactics they were adopting and decided to discharge them and take up my own defence and at that point I decided I would compile my list of witnesses because you, Judge, were asking for such a list. A: In the meantime, I employed new lawyers and in the last few weeks we started from scratch again on my defence. In those discussion I became persuaded that we could dispense of a lot of those witnesses because the net arguments are journalistic ones. - - The standard of journalism that was applied. The medical information is germane.

Journalism was from my point of view the issue. It has got to do with the contents of the article and the failure to ask critical questions.

Continuation 164. Q: [Photograph in the Laois Leader and an Article] A: Does the article mention what I said about Ms Holland? Q: No A: Well, there you go. Q: On the 4th of December a registered letter was sent. A: Yes, I got that. It was dated the same date as the Civil Bill. The letter indicated a Civil Bill would issue if I did not reply, but it had in fact already [been] issued. The proceedings had already been initiated. I was given no opportunity. Q: Even if you were given an opportunity, you would not have interacted, you said in your letter that this case will not settle outside court. A: Well, that is a very different point. I would like to explain. The context of that [the point-blank refusal to settle], what I said relates to a position taken by many people. I do not have the right to sell the past which belongs to others as well as myself. I do not have the right to declare something false when I do not believe it to be false and betray those who depend on my courage and determination to fight for their right to life and right to be human.

165. Q: No one else is coming to give evidence of their belief that the article was a lie. A: I am giving evidence of that viewpoint.

In any engagement one has a discussion as to what I was engaged to do. I was engaged to do a speech, not one to be broadcasted on Facebook, not to go any further. The speech to the members was the sole purpose of my engagement.

I do not take a lot of interest in social media. Q: The essential facts of the article were never debunked. A: I believe they were. I have explained how they are being debunked, by a process of common sense and reason. By analysing the article and looking at to what the investigation consisted of. The information necessary for the reader to be properly informed, that information was not present and was not solicited. I have other objections to the Indo [the Irish Independent] article but I don’t see the relationship to the points you are making. The Indo article was clearly put together from the information in the Irish Times article.

When you are putting out a story of such a high emotional value and potency, men who speak about abortion are automatically become inadmissible to the discussion on the basis they are not capable of bearing children. I disagree on lots of ground. We are all human and we are all entitled to have a say in the discussion.

166. Q: Emails pre-14th November 2012 – none of that evidence is being put forward. A: There were articles at the time. It was well known at the time that there had been a nexus of activity in advance of the Irish Times article. Ms Holland refers to that in the UL [University of Limerick] interview and expressed it as a cause of her concern to move quickly. Q: [Letter of 15th March 2019] Page 14 – last sentence – deliberately peddled a false story? A: I say it for all I know. It is a hypothesis. I am putting forward one possibility. Q: This letter is being presented as your honest opinion, is it? A: It is a possibility… It is expressed as a possibility.

Q: Vindication of the article A: Certain factors particularly the timing of the diagnosis which would have created a point of comparison with the alleged request for a termination, was missing and was never solicited and without that single detail, the story is meaningless. A: You can start a lie without being a lair, without telling a lie, you can initiate the process and by failure to arrest that lie, to correct it, to pull it back, you can do something that to a certain extent is equivalent.

We are talking about an article written on the front page of the Irish Times which told a particular story around a woman who died which resulted in scandalous headlines.

I am still not apprised of all the facts.

167. Q: If you don’t have all the facts, you cannot reach a honest opinion? A: We don’t know a lot of things. Did Praveen know if he was asked that question at a time in which he could say the diagnosis was made? We have some evidence that that did happen on the afternoon of the Wednesday. Praveen himself dated this subsequently as Friday morning, that remains opaque. If that info was solicited and tabulated by a team of journalists.

We are getting into the fact that we still do not know of all the facts because the Irish Times did not pursue them. We are not in a position to say what happened in those days when the interview was being composed.

There is a moving moment where Praveen speaks to Savita after the death of the baby and her reaction to hearing the baby had been delivered. This is a very human story, but it was reduced to a caricature of Irish life and society. The Irish Times owes better to Ireland than that. Q: Why did you not have the morality, the sincerity to instruct your lawyers to put to Ms Holland that she was peddling her own agenda when she made up this article? A: It was clear from the cross-examination the role of Galway pro-choice in delivering this story to the Irish Times. That is implicit and explicit in the entire thing. To suggest there is no agenda. And then broader, the Irish Times has consistently pushed pro-abortion propaganda for years. These are the years the Irish Times has grown into its present form. Moved away from its origins.

168.

Q: 1st December 2018 – Gemma O’Doherty’s Youtube A: Can be viewed by anyone Q: “useful idiot in this process”? [In response to a quote in the video] A: [It is a] phrase used in the context of Marxism. A useful proxy of a Marxist agenda. It is not a literal depiction of an idiot. Q: 24th January 2024 - Gemma O’Doherty’s Youtube A: I do not believe it is defamatory, I believe it is a valid critique of an article that is erroneous on the basis of what I would regard as negligence and a valid critique of the article. Q: You don’t seek to clarify in a public forum that she was co-writing lies A: This has gone on for years, causing me multiple serious illnesses through stress, threatening to bankrupt me.

It is a matter for me to defend myself and that is what I am doing. [Mr Waters continuing] Q: It is essentially the same words being repeated. A: I was aware that this was brought to the court’s attention. I was aware also that several newspapers including the Irish Times published a completely false account of what this case is about and published the most grotesque allegation of words that I did not say. I now have to engage in correspondence with these newspapers.

The headlines and the contents of those articles misrepresents the meaning of this case and it is a clear attempt to smear me in the public arena.

I am speaking about something that happened in a courtroom and being inaccurately reported.

Shane English BL read onto the record of the court a number of statements attributed to me and being depicted as the core of this case which they are not.

The only adjournment being sought in this case was sought by your side.

169. Q: That is not correct. A: Lavelle’s [solicitors] contacted me and said they had a difficulty with one of the witnesses and wanted to reschedule the case for the new year. I agreed to that. It was not me that sought any adjournment whatsoever.

The issue arose from the manner in which things were presented in Court.

I did not identify her as Kitty Holland and that is all it means.

Q: If you plead truth and you don’t succeed in that plea the court can take that account in aggravated damages. [Query from the Judge in respect of the defendant’s failure to demur the comments of the interviewer in January 2024.] A: The situation is: Gemma has her own opinions. I am not my sister’s keeper. She has views I do not share about lots of things. Demurring is more likely to result in an extension of the discussion, and that is why I avoid that. A: At no time have I uttered anything derogatory of you [as a judge]. A: The views expressed by Doherty are her own personal views. I would not express myself in that way but that does not mean she cannot express her views. She has freedom of speech. In all discussions the whole basis of public discussion is that people have different views. People should not be denied the right to express even forceful views.

Defendant’s case is closed.

Day 5: 1st of May 2024 - Defendant’s Closing Submission – Mr Kavanagh SC for the Defendant 170. There is a legal issue I wanted to flag and make a short submission to it. It concerns the plea in the defence arising out of section 35(1)(i) Civil Liability Act 1961. [In addition] Section

11 of the Defamation Act is also relevant in terms of multiple publication. It concerns contributory negligence – the plaintiff should be responsible where the plaintiff does not sue the other wrongdoer and the statute expires. There was an opportunity to sue Renua and it was not availed of. She [the Plaintiff] was on full notice of the 15th of March 2019 letter of what [Mr] Waters position was. She allowed the statute to expire after one year and did not avail of the option to seek to extend the time. She knew the defendant’s case, that he did not know and was not aware that it was going to be published, and to fix him with vicarious liability for the joint tortfeasor’s action, the publication of this on the internet, which he was not aware would be unjust. He is not now in a position to have those damages apportioned with Renua. He did not publish, he did know it was going to published and as soon as he knew it was published, he took steps to remove it. [It is] unfair to fix him with that portion of the damage [the damage caused by the publication on Facebook].

171. Section 11 of the Civil Liability Act 1961 (as amended by the Defamation Act 2009)

– Concurrent Wrongdoers. Should you find against him, this is important when deciding what liability is to be fixed against the defendant. Their failure to take steps to join Renua has manifestly prejudiced us. We should have no liability for the publication on Facebook. There was no contract in relation to the matter, he was not put on notice of it. He subsequently demanded it be taken down inter alia on those grounds. Renua are concurrent wrongdoers and if they were [still in existence] the court would have to consider the extent of their involvement. [Reference to the case of Kehoe v. Raidió Teilifís Éireann [2018] IEHC 340]. It would be unfair and unjust to fix Mr Waters with liability for the publication of the statement to the world at large. Given that he never intended it to be published to the world at large, that should be considered in assessing the qualified privilege argument.

172. Defamation in its very nature concerns a balancing of two important rights. The constitutional right to her good name which she claims was infringed by the defendant. The other side of the scale is the constitutional right to free speech. It is accepted that the constitutional right to good name is particularised in the Constitution but the right to free speech of course must have some constraints. The latter is derived from the Constitution, but it is equally as important.

173. Free speech includes the freedom of expression. You are entitled to express your own views. It is the expression of a freedom, a human freedom. Without them being curtailed or legislated to stop. It is true that through freedom of speech, entrenched views can be altered. We have seen that with the development of our jurisprudence in relation to same-sex marriage and abortion. There are competing rights at stake and open debate is required. It does result in the changing of persons’ minds. That is how important Mr Waters sees this freedom of expression. Sometimes a momentous change happens, and it has a positive effect on society but as we have seen over the course of history people have been coerced to do horrific things – following Stalin etc. Mr Waters understands that and has said that often the sheep with follow the shepherd if he shouts loud enough and convinces the sheep it is the right thing to do.

174. When one gets into the circumstance which has prevailed here, the topic of abortion generates different points of views. It was always going to give rise to heated debate. People saying things they sometimes regret, change their minds on. It is in the public interest to have the debate. It was in this atmosphere that this particular discourse occurred and in which Mr Waters was engaged in. It was relatively calmly debated in this circumstance. It was a national debate of significant public interest. That cannot be gainsaid in terms of national importance and public interest. To be respectful to parties on both sides, when expressing their views honestly they believed them to be true. Robust debate, people have a particular view, sizeable amount of people had the same view as the defendant in respect of the proposed “Repeal the 8th Amendment” referendum. It was not a landslide victory – there were a large number of voters who shared his views. It was a popular opinion he was expressing on whether the law should be changed in relation to abortion. It was not just a one-way street.

175. His motivation, as you have seen, was to innately stick up for the muted voice of the unborn child. He was not doing it for the money. He was doing it for a genuine concern by reason of his own religious and personal beliefs, and every society should respect that, and should not put him in the box of the archaic rosary bead yielding Catholic fundamentalist. Those who have different beliefs perhaps not based on the same foundations, think there are other things that are necessary to bring to the fore and they can do so. That is the nature of public discourse and the rough and tumble of the serious issues at play. Inevitably neither side is right 100%. There has to be compromise. There was compromise with the adoption of the changes, which did not give either side what they wanted. The courts are called upon often to resolve these issues of conflicting views. You, Judge. have to consider you are sitting alone, arbiter of fact and law. You have to provide the same procedural standards as if this were a jury trial. So then if one were to consider the instructions you would give to a jury: Someone judging the facts has to be completely impartial. They are personalities in the publishing world and in the media world and both are well known and have expressed their views in a certain way.

176. They will always have to be told that the case is to be decided on what was said in the jury box. Not by their own research. The first thing that has to be determined is whether the words spoken are given a defamatory meaning given the context they are spoken in; it has to be presumed that the words are not defamatory. Then, if the words are decided to be defamatory the balance shifts to Mr Waters to raise a certain defence. It can be more difficult if things are introduced into the case that could dissuade one, such as making one think one party is a better person than another. The plaintiff – has her constitutional right to her good name been infringed by the words spoken? To determine that, you have to look at the entire context. There is a lot of peripheral material that speaks to the context as to who said it, why he said it and why he maintains the belief that it was true. Mr Waters said “I was never calling her a liar; I was always talking about the story and what that story had by way of inconsistencies or omission led people to believe. and that belief is untrue.” That is his view and his honest view in that regard. He takes the view that this Court is an honourable court and I only have to say that because of what others have said. He has distanced himself of what others have said. The things that have been published or uttered are unwarranted. That is not to say he is not associated with her [the editor of the Irish Light newspaper]. He sometimes takes the opportunity to use her as a mouthpiece. He has little or nothing to do with the Irish Light other than his name being on it.

177. Damage: She [Kitty Holland] claims she has suffered damages as a result. What has she proved she has been damaged? If there is no damage, there can be a finding that her name has been infringed but there cannot be an award of damages. It was a limited audience [as far as Mr Waters was concerned]. He was preaching to the converted. It is not practical for us to call on the attendees, but I think it is safe to say that that audience reacted to it on the basis that they endorsed that view. It did not have to be elaborated on. They were all of the same mind. Anybody who was interested in Renua is likely to be of the same mindset as him. You have no evidence of the publication figures, the views of the video. You cannot prove just because it was up on Facebook that it went around the world. I think it falls short in relation to the proofs. They, you, have to look at what happened afterwards.

178. It is clear from very early on that the public at large are being told that she is an awardwinning journalist (Justine McCarthy’s article). Presumably, she consented to this article. The article then amounts to a hit job on Mr Waters. The article promotes Ms Holland, lets the readers know she has a book. It then demonises Mr Waters. Almost a year goes by and then the same journalist publishes an article in 2018 on the proceedings. Again, it promotes Ms Holland and her book. It reminds the readers about the award. The comments were repeated on Facebook and Twitter [now known as ‘X’] during the referendum campaign. We only have Ms Holland’s evidence of that but it is evidence that falls short of the necessary proof. I would have thought that evidence of the number of tweets would be produced. You must give little weight to that. It was never put to Mr Waters, the tweets [posts on Twitter]. That damage has not been proven. We know it did go out and he took it down, but you have no evidence at all of what flowed from it by way of tweets or other things that would support Ms Holland’s view. Bald assertion, not supported by evidence. If those tweets existed, I am certain it would have been printed in numerous copies and provided to the court. It doesn’t exist. It has not been produced. There was no evidence to support that proposition and we do not accept that that evidence exists.

179. He was not personally attacking her [Kitty Holland], he made that very clear, he made it clear in his letter and his evidence. He was motivated because he felt he had to represent the muted child because of the forthcoming referendum. A genuinely held belief. This article goes out the same day he launches his own book. So, one can assume some damage flowed from this and he has suffered as a consequent of this being put out. You can breach a constitutional right but when assessing damage to be paid by way of compensation – damage can only be caused when someone hears the statement and changes their mind about the person. There is no evidence that that ever happened. The circus of what we know and the publicity around it that she was involved in, she volunteered and got involved in the putting right of things [by engaging with Justine McCarthy]. The Irish Times has taken a particular view with regard to the Defamation Act 2009. There are things that need to change to bring us up to the date with the UK and EU, to allow people to express their freedoms freely. These things need to be kept measured.

180. The fact is it went around the world and generated hysteria is evidence of the manner in which the story was run. The fact of the matter was there were pressures at the time to get the story out. They did what they had to do, and we say that was an error. It created a hysterical reaction around the world and damaged Ireland’s reputation and was a slur on the Catholic ethos which is the basis of our Constitution and our state. The reaction was unwarranted on the facts. If the story had been told in the way Mr Waters said it ought to have been told, that reaction would not have occurred. A lot of people were hurt in the fallout of the story, and he was right to call it out as a lie, a myth that she died because of she was denied a termination because of the Catholic ethos.

181. Honest Opinion: It was his honestly held belief and opinion that there was not a single instance of a woman dying because of a doctor’s failure to provide a woman with a termination. He was not calling her liar, he had no malice, no axe to grind against Ms Holland. He is entitled to criticise her journalism. Was his opinion based on any facts?

- He was well read on the facts of the case, and the history of it, and the reports.

- He is someone who immersed himself in this story for a long time, he read, he wrote about it, he read what was written about it. What was left out was the

cause of the hysteria, it was what the article was missing that he was complaining of.

Do they relate to a matter of public interest?

- Of course, they do.

- The upcoming referendum

- The people he was speaking to have a moral and social interest in what he had to say, and he takes the view he had a strong moral obligation to say what he had to stay.

- The Savita story – it is still a live debate.

182. Fair and reasonable publication on a matter of public interest:

- It was published in good faith. No suggestion or evidence that could be the foundation of a suggestion that this was a malice thing.

- He says it was for the public benefit. In all the circumstances of the case the manner and extent of the publication did not exceed anything that would be sufficient to convey his view.

- It did not contain any exaggeration or inflammation.

- He was performing a public function and public duty. Citizens have an obligation to object to unjust laws and there would be a great loss to society if people were stopped from doing so.

183. Qualified Privilege:

- He believed he was speaking to people who had a moral obligation to receive the information.

- That was the fundamental nature of the party and their objective. And they had a social and moral duty to hear it.

- He felt that duty obligated him to comment on his views on the way the story was written.

- He had no intention to call her a liar.

- He has never expressed malice against her, and she likewise recounted a friendly relationship. They were good associates in the Irish Times.

- I don’t think this case has any malice in it which would allow a conclusion to be drawn that he intended to attack her integrity.

- There has been evidence that there were elements of the story which have been proven to be untrue so in that respect it is an untruth.

- It was not the tidiest way of saying it for sure, but what was meant by it when he said it? That is the issue. What did the hearer take from it? If it was heard in isolation out of context some people may draw the conclusion that he called her a liar, but it is completely different when you hear it in its context.

The Preamble of the Constitution – it is based on Christian belief, the rights my friend seeks to assert are God given rights. We have an obligation to respect his view. The rights he is given are God given and, you, as agent of the State are obliged to have regard to that.

184. Plaintiff’s Closing Submission: Shane English BL: This is a case in which the plaintiff seeks damages for defamation. Motivation and intention are irrelevant, and damage is presumed. Mr Waters made a speech in 2017, and the plaintiff takes issues with that speech.

185. Meanings: You are a judge sitting alone without a jury, the only thing that matters is what you believe the meanings to be, [that is] reading the speech as a member of the public without any extrinsic knowledge.

[Mr English the quotes from Cox, McCullough “Defamation Law and Practice” (Clarus Press, 2nd ed. 2022) at paragraph 13.201 on page 688]:

“The issue that most frequently arises in terms of the division between questions of fact amd questions of law concerns the defamatory meaning of the words alleged. The division of responsibility here is clear. In Barrett v. Independent Newspapers Ltd, Henchy J said:

“In a libel action such as this where the defamatory nature of the words complained of is in issue, observance of the respective functions of the judge and jury is of crucial importance. It is for the judge in the first instance to decide the preliminary question. If the judge answers that question in the negative, the case cannot go to a jury and the jury must be dismissed. But if the judge rules that the words complained of are capable of bearing the defamatory meaning alleged, it is then for the jury to say whether the words do in fact carry that meaning.” He pleads truth, honest opinion, fair and reasonable publication on a matter of public interest and qualified privilege.

186. Publication: He [Mr Waters] has admitted in the stand that he spoke the words. The person who spoke the words published the words. In his letter on page 4, he says …. That I did not refer to her by name… He is admitting in that letter that this is a publication about Ms Holland. He then repeats that fact in January 2024 in an interview with Gemma O’Doherty. He says he did not know about Facebook or that there might be some publication of his speech. In my submission, it is not credible. He is in a room which has at least 2 cameras on tripods, there are journalists present in the room. He ought to have known it was going to be published. It is irrelevant how many people viewed it. There is case law to say the very fact it is on social media is enough. He knows that when he speaks, people report on it.

187. In relation to section 35 of the Civil Liability Act 1961, Cox and McCullough clarify at paragraph 13.279:

“If the defendant pleaded (for instance) s 35(1)(i) of the Civil Liability Act 1961, making the case that the plaintiff is identified by way of contributory negligence with the liability that a missing concurrent wrongdoer against whom the claim has become statute barred, the onus would be on the defendant to lead evidence to establish the putative liability of the missing concurrent wrongdoer.” There was no evidence. Section 35 is dead in the water before we get there. It applies clearly where the defendant is statute barred. The defendant was not statute barred. He had precisely the same ability to apply pursuant to the Defamation Act 2009, to join any one of the parties to indemnify him. He was entitled to apply pursuant to section 38 of the 2009 Act to extend time in which to bring an action against anyone he believed to have a liability and he didn’t. He knows that Facebook would be benefitting from innocent publication. They are a platform and not people you can ordinarily pursue in relation to matters such as this. The criticism he points at Ms Holland is a criticism he should turn on himself. He was not statute barred. It is where you are statute barred that he was entitled to invoke section 35. No evidence was led to suggest that there was a duty owed by a concurrent wrongdoer.

188. Identification:

- Plaintiff never seeks to deny this other than in his defence. The defendant never seeks to deny he is speaking about the plaintiff. He asserted under oath he is speaking about Ms Holland. Ms Justine McCarthy is independent evidence that he was speaking about Kitty Holland. There was some talk in relation to why Paul Cullen did not sue. He could not have. He [Mr Waters] referred to “she” and “the journalist who won the awards”.

Publication and Identification are well proven. Section 35 is irrelevant.

189. Main defences: Fair and reasonable Publication

- To avail of this, it is not simply good enough in a closing summation to say he had a moral and public duty. You are required to lead evidence.

- Jameel v Wall Street Journal [2006] UKHL 46 – to benefit from the fair and reasonable publication defence, certain things must occur.

- Bird v. Iconic Newspaper [2024] IECA 62

- He made no attempt to contact Kitty Holland to ask what she meant before he made the speech to Renua.

190. Section 26(2)(h)-(j) of the Defamation Act 2009:

“For the purposes of this section, the court shall, in determining whether it was fair and reasonable to publish the statement concerned, take into account such matters as the court considers relevant including any or all of the following:

(h) the extent to which the plaintiff’s version of events was represented in the publication concerned and given the same or similar prominence as was given to the statement concerned;

(i) if the plaintiff’s version of events was not so represented, the extent to which a reasonable attempt was made by the publisher to obtain and publish a response from that person; and

(j) the attempts made, and the means used, by the defendant to verify the assertions and allegations concerning the plaintiff in the statement.” There is no evidence before this court in relation to any of that except that he did not go to Ms Holland and in my submission he is not entitled to the defence of fair and reasonable publication.

191. Qualified Privilege [QP]:

- Basic principles: duty and an interest

- There is no duty and no interest in Waters calling Holland a liar.

- There is a plea of QP.

- Mr Waters was going around the country giving a talk or a version of this talk, he was asked to speak one month before this conference, and he said he had been thinking about the words.

- There was considerable Publication. The words were repeated as late as January 2024.

- Referenced Bird v. Iconic Newspaper [2024] IECA 62 – Paragraph 62

- If the court is against me on that, qualified privilege and truth cannot coincide in a defence. Newspapers rarely plead truth. QP is based on the admission of the person who spoke the words that they were not correct, that is the whole point. It is an acknowledgement that the words were wrong, but at the time they had the benefit of QP because they bona fide believed these words to be true at the time. To invoke QP I must accept and acknowledge the words I spoke were not true. That cannot coexist in a defence where there is a plea of truth. You cannot believe in the truth of your words and seek to benefit from QP.

- Mr Waters is not entitled on this basis alone to a QP defence. He repeatedly in the witness box said he believed his words to be true, he pleaded in his defence that the words are true. It is in the letter.

- There is no acknowledgement at any time that he was wrong, the words were not true, I thought they were true at the time, hands up but I am entitled to QP.

- His defence of QP is equally set aside.

192. Honest Opinion [HO]:

- Close to 100 times we were told that it was his honest opinion. The fact you say that is not sufficient to ground a defence in HO.

- Held at the time of publication.

o This case is for Mr Waters to defend his words. Those words were spoken in November 2017, after the HSE report, after the HIQA report and the coroner’s inquest. It is a founding principle of the defence of HO that the opinions you hold must be honest, rational and objectively justifiable and they must be based on fact.

o The reality is saying that Ms Holland was the journalist that started the lie after having had the benefit of all of those reports, I ask the court to take the view that it cannot have been an honest opinion, it is not based on fact, not honest, not rational and not objectively justifiable.

- In his defence he relies on the reports as facts confirming the basis honestly held as his opinion, and in my submission they do not.

- What honest opinion is he standing over?

o Mr Kavanagh at some stage encouraged the court to admit the letter as part of his Defence. He asked the court to do that. If that is the case, is his honest opinion to be found at page 4 – she started the lie – or is it at page 13 – carefully planned by the Irish Times personal and sections of the pro-choice movement with the clear intention …… - page 14 – for all I know Kitty Holland may have known the full truth from the beginning and deliberately peddled a false story to promote her own …..

– page 15 – the delivery of the lie was not a solitary… o The very least that can be said that if that is his defence it is utterly confused and does not entitle him to HO defence.

193. What version was put to him in the box by his own counsel.? We were brought through large portions of the 101-page letter in the XIC and he said it was his HO. That does not come close to establishing a defence of HO. He was not once asked to set out the facts on which his HO was based. What appears to be the defence is this, if I publish to people that a named politician is corrupt, I would be entitled to say that and say that is my HO. That is patent nonsense. If I wanted to apply the HO defence to that I would have to stand over and lead in evidence the fact I relied on to come to that view. I could not just make it as a

statement. it is based on a foundation of facts. It is for the defendant to establish what those facts are. That defence is not open to the defendant either.

194. Truth: It is a big risk in any case in defamation to plead truth because you have pleaded under oath that the plaintiff is guilty of what you say they are guilty of. You are required to produce cogent evidence. He sought to say his comments were true but not in the meaning you contend for but in the meaning I contend for. What he says is true is – an inaccurate narrative commenced (paragraph 12 of his defence). The court must determine what the words mean to the ordinary reasonable reader.

195. [Mr English the quotes from Cox, McCullough “Defamation Law and Practice” (Clarus Press, 2nd ed. 2022) on “Pleading the Truth of Alternative Meanings” at paragraph 5-54 on page 193-194]:

“[I]t is, of course, perfectly possible for a defendant, in his or her pleadings, to claim that the statements that are at issue in the case carry different meanings than those pleaded by the plaintiff, and then to seem to prove the trust of these meanings. The two conditions to this are that (a) the meaning in respect of which truth is pleaded must be one that the words in question are capable of conveying to a reasonable person, and (b)

the meaning in question must be defamatory. Obviously, however, this will be of no value to the defendant if the tribunal of fact concludes that the words bear a different meaning to that which s/he was prepared to justify.”

196. Where they have pleaded their own words which has not passed the test, the court is left with determining what it believes the words means and you are entitled to take the view that they mean what the plaintiff says the words mean. Under no circumstances can there be a truth plea in this case on the basis of the plaintiff meaning and there is not a shred of evidence adopted in that regard. There was not a shred of evidence offered for the truth of the alternative meanings either. The defence is seriously confusing. We still do not know what is the lie, the centre of this. We are now at the conclusion of this trial, and we still do not know that. He has several versions in his letter, none of which were put to the plaintiff. Has he substantiated the truth to the meaning that he was driving her own agenda, facilitating the Irish Times agenda, that she was a puppet. That is not open to the court. But what is

open to the court is to look at the words spoken and ask what is set out in the Civil Bill as correct and true.

197. The reasonable reader is not required to have extrinsic knowledge as the reader or hearer. I am required to interpret in a normal, reasonable way, what those words mean. In my respectful submission, the defendant has failed to establish the truth that he has pleaded. He has repeated it in the witness box under oath. And that comes with a cost. And that cost –is under section 32 of the Defamation Act – aggravated damages. There was no clarification, no correction, in fact what Mr Waters said to Ms Holland on the final page of his letter, and for the avoidance of all doubt, this case will not settle outside of court. Nowhere in the Defamation Act is the defence of sticks and stones. We are way past that. We are way passed the school yard. We are dealing with a man who sticks and stones broke his bones on 12 separate occasions. In relation to my friend’s submission, there is no one in this court who will suggest that Mr Waters does not have a right to freedom of speech. He is entitled to speak his mind. He cannot go around defaming people. Contrary to Mr Kavanagh’s suggestion; this is not a case about the freedom of speech on the issue of prochoice and pro-life. This is a simple case; were the words spoken by Mr Waters defamatory of the plaintiff? this is all an attempt to conflate all of this into a massively important issue on freedom of speech. It is not about that, motivation and intention in a defamation action are irrelevant.

198. Malice: Mr Kavanagh says there no intention of malice. On 1 September 2018 and in January 2024, you know what he said. You do not have to go any further if you are looking for malice. There is plenty of other bits in the letter which are extremely malicious.

199. Damage:

- There is no need to show bank statements or financial loss.

- Chapter 11-66 Defamation Law and Practice Cox and McCullough [second edition] – “[D]amage is presumed to flow from the publication of a defamatory statement. There is therefore, at least in theory, no need for the plaintiff to prove the fact or extent of harm suffered in order to recover damages. However, the

degree of harm that is suffered will be reflected in the quantum of damages that is eventually awarded.”

- It is relative to quantum, but in general terms it is relevant on quantum.

- It is not relevant that he was in a room of likeminded people.

- Worldwide reaction is utterly irrelevant.

200. You might recall, Judge, that in January 2024 I stood here and was handed a list of 13/14 witnesses. I said to you on that day that I will be raising this at the trial. It was a blatant attempt of bullying. The notion that 13 witnesses would be called. It would take up a considerable period of court time. There was no reality to that then and it did not eventuate. It takes him a 101-page letter [referencing Defendant’s letter of 15th March 2019 ] to explain himself. If it took him 101 pages to decipher what he thought, he meant. No reasonable reader of the Kitty Holland article published in 2012 believed, understood or thought that that was an exhaustive precise, detailed, minute by minute account of what happened to Savita. Any reasonable reader in relation to that article would read it as Praveen’s account of what occurred in those days where his wife lay in front of him dying. And that is vindicated whole heartedly in every report written on this matter. Finally, the story she wrote in 2012 was never a lie and it was certainly not a lie in 2017 when everybody had the facts in their hands.

Part D

Judgment

201. The position advocated by the defendant in relation to errors and omissions in the Irish Times’ story dated the 14th November 2012, is in my view too extreme. Overall, the news story published on the 14th November 2012 was not vitiated by series of significant errors and omissions which would constitute a lie. There must be a margin of appreciation in so far as this case of defamation is concerned, provided the overall trust of the news story is not untrue. I accept the standard of journalistic checking and verification was thorough, notwithstanding the grammatically confused errors in the final two sentences of the news story. Regardless of the tenses, it is clear when you read the beginning of the article that an investigation is underway. I also accept this narrative was largely Praveen’s version of the story about his wife’s tragic death but was also corroborated with other sources in as far as they were then obtainable by the plaintiff. I note the story had a substantial impact on the wider political debate concerning the legal and medical issues in respect of the termination of pregnancies in Ireland and abroad. However, it is not the function of this court to substitute itself as editor or to determine that a better alternative news story could be used in place.

202. I do not accept that the subsequent HSE and HIQA inquiries and Coroner’s findings justify the defendant’s contention that the plaintiff was so incorrect in her report that it constitutes a lie. Dr Boylan’s evidence was crystal clear in outlining the very substantial challenges and standards that prevailed in Ireland in 2012 for doctors [and mothers] in connecting with the termination of pregnancies before the law was subsequently clarified after Savita’s death. I acknowledge there is a difference of opinion over what Savita’s consultant said to Savita and Praveen on the reasons for refusal of the termination of the

pregnancy. This was due to health or welfare concerns of a mother notwithstanding the high likelihood of the death of her then living foetus. This raised the question as to whether she said it was “a Catholic Country” which Praveen believed she said but which the Consultant denied saying when she gave her evidence at the inquest, or alternatively, that the Consultant said that Irish law did not allow termination. I also note that a midwife, out of genuine welfare concerns for Savita, said Ireland was “a Catholic country” but it wasn’t said to be unkind. I am not ruling on any of these issues, merely noting them.

203. I acknowledge there are other issues involved in Savita’s tragic death and that the defendant had genuine opinions over the story. For example, there is nothing wrong with the defendant giving his honest opinion in suggesting other issues should have more importance, such as that the emphasis for Savita’s tragic death should have been on her medical care, the pressures that medical personnel were under, the rarity of pregnant mothers dying in Ireland, the fact that in his opinion that Catholic theology was not determinative for doctors and that in practice a consultant is more likely to refer to the legal position than to say it’s a “Catholic country”. Indeed, on the 18th November 2012, the defendant, in a strong article in the Mail on Sunday newspaper entitled “This is a Catholic country but that doesn’t mean our doctors just let people die”, set out his position in a clear and coherent manner which was not defamatory of the plaintiff

204. The defendant is entitled to his view that the headline of the story should have been different or that he would have written the news story differently. I also acknowledge that some subsequent news outlets not connected with the plaintiff, or the Irish Times inflated the story. The defendant is also entitled to his opinion on Irish journalism generally even if it is a subjective one. However, having pleaded a defence of “Truth” he is not entitled to state as a fact that the Plaintiff is the person who started a lie and got rewarded for it unless he can prove it. It is not sufficient for the defendant to say that that was an honest opinion when in fact it appears as a statement of fact.

205. The defendant’s overall thesis is that he is attacking the story, not the plaintiff, and that he has right of opinion to do so. That is his subjective interpretation of what he said at the Annual Renua Conference. It was not explained at the Conference. I believe an objective view would interpret his words otherwise, particularly as he didn’t clarify what his interpretation of the words meant. The defendant’s address reads as if the plaintiff started a lie on one of the most important news stories in the last decade in Ireland, and that she got awards for propagating that lie. In my opinion, I interpret this as a serious allegation of fact that the plaintiff has not acted in accordance with the highest standards of her profession as a journalist on a very important news story and that she was following a political agenda and was not true to the actual facts of the case. Furthermore, I interpret it as saying that she was deliberately deceitful. In other words, it gives the impression that she deliberately misled the Irish Times’ readers and the public at large and received journalism awards from those who were also involved in the deceit for doing so.

206. In regard to the injury to the plaintiff’s professional reputation as a journalist, it is worth quoting McMahon and Binchy [paragraph 34.55]:

“It should also be noted in this general context that whether a statement is defamatory is an objective matter and is not determined by the fact that the speaker meant or intended no harm. On the question of whether there is a defamation, the speaker’s intent, although possibly relevant to the issue of qualified privilege or damages, is by and large irrelevant.”

207. However, an initial reading of the defendant’s address to the Renua conference on the 25th November 2017 also gives the impression that he was performing to get approval from an overly enthusiastic political gathering and was acting recklessly in regard to the plaintiff’s professional reputation as a journalist. The statement could reasonably be understood as referring to the plaintiff but was also evidenced by Ms Justine McCarthy in her evidence. In any event, identification was conceded at the trial. The defendant maintains that this was a small political gathering of 80 persons who were members of Renua and understood what he meant when he made his speech. That latter point is his subjective opinion. However, what matters is that it is a gathering that clearly comes within the definition of defamation in section 6(2) of the 2009 Act. While the group had a common political objective and were concerned with an important matter of public debate, they did not constitute a group wherein qualified privilege would apply. Even if they did, they had no moral duty to receive a statement that the defendant started a lie. It was one that was recklessly volunteered by the defendant without being asked for.

208. It is of note that this conference was held five years after Savita’s death and to the plaintiff’s knowledge it was the first time that the defendant had made this allegation against her. Indeed, as stated above, the defendant in a strong article in the Mail on Sunday, dated the 18th November 2012, set out his position in a very clear manner but which was not defamatory of the plaintiff. I accept his bona fides that the defendant was unaware that his speech was being videoed and that his permission was not sought when it was posted on Facebook by Renua. However, it was also a naïve view even though genuinely held. In my opinion, it was inevitable that it would get into the wider public domain, and it did so.

209. The Renua conference speech did not elaborate on the defendant’s own interpretation of what he meant whereas his letter of 15th March 2019 did. In this regard, he attempted to explain that he was attacking the story, not the plaintiff. The defendant’s view is that he was not calling the plaintiff “a liar” but that the story was a lie” and it was part of an overall conspiracy of journalists in respect of advocating for a right to abortion. However, in doing so he also attacked the plaintiff’s professionalism on this story, and he also challenged her motives and the motives of the Irish Times. In my view, rather than explaining the words he confirmed the original defamation but even more intensely.

210. I have seen no evidence that would justify an accusation of bias against the plaintiff in her initial reporting. Yes, she does come from a pro-choice background, so it is a legitimate question to ask of her i.e. how she deals with perceived bias? However, she was very clear in her evidence about her journalistic and ethical obligations and in her own words leaving her personal views at home when reporting on a factual story. She was completely open to questions on this and answered them succinctly even to the point of revealing her own private life. However, I don’t believe her integrity in this regard was seriously challenged in the trial [as opposed to pre-trial] and indeed I note the defendant’s acknowledgement of her integrity as a journalist generally. I largely agree with the analysis of Mr Shane English BL (counsel for the plaintiff) in respect of the defences proffered.

211. One aspect of the plaintiff’s case concerned me and that is the initiating letter from the solicitors dated the 22nd November 2018. I understand the limitation period to issue proceedings was about to expire i.e. the 12 month time limit. However, why was the initial letter not up front about that? Instead, the letter demanded that the defendant was to do three matters within seven days (which was impossible), otherwise proceedings would issue without further notice. The defendant was correct to infer that either the case would be statute barred or that proceedings had already been issued. What the letter should have said was, in order to protect their client’s interest, “that proceedings have been issued but will

not be proceeded with for a reasonable period (e.g., twenty-one days) provided the defendant agreed to the following, failing that proceedings would be served.”

212. I note the plaintiffs view, it would have ultimately made no difference on the basis of the defendant’s defence, but he still should have been afforded the opportunity to mitigate the damage. The three matters outlined in the letter were as follows:

1. “Compensate our client for the substantial damage caused to her as result of your statement.

2. Publish an apology and correction, to be agreed with our client, at the earliest opportunity.

3. Take down the online version of the publication.

Should we fail to receive these conformations within seven days, we are instructed to issue court proceedings against you without further notice.”

213. In relation to request number 3, the defendant complied with this request by contacting Renua twice, even if the online version was not removed within the time frame suggested by the plaintiff’s solicitors. It was unfortunately a lost opportunity, that a statement of correction and apology was not published on the Renua website by the defendant which would have substantially mitigated the damage to the plaintiff. If that had been done, the outstanding matters could have been resolved by mediation or negotiation if the parties were so inclined.

In summary in relation to the defences pleaded, I find as follows:

214. Truth subject to Section 16 of the 2009 Act:

Once the plaintiff shows the statement to be defamatory, the presumption arises that it is false and the onus is on the defendant to prove the truth of the alleged defamatory statement. Cox and Mc Cullough at paragraph 5-54 outline this as follows:

“It is of course perfectly possible as defendant, in his or her pleadings, to claim that the statements that are at issue in the case carry different meanings than those pleaded by the plaintiff , and to seek to prove the truth of their meanings the two conditions to this are that (a)the meanings in respect of which truth is pleaded must be one that the words in question are capable of conveying to a reasonable person and ( b) the meaning in question must be defamatory. Obviously, however, this will be of no value to the defendant if the tribunal of fact concedes that the words bear a different meaning to which s/he was prepared to justify.” In my view, a reasonable person without any extrinsic knowledge would conclude that the statement was defamatory for the reasons outlined in this judgement i.e. that she was a person who has not acted in accordance with the highest standards of her profession as a journalist and that she was deliberately deceitful. Secondly, the defendant has failed to establish the truth of his statement. The errors and omissions in the Irish Times story the 14th November 2012 which he alleges are not sufficient to constitute his contention that the story was a lie.

In relation to the other defences:

215. Honest Opinion Section 20(1) of the 2009 Act reads:

“It shall be a defence (to be known, and in this section referred to, as “the defence of honest opinion”) to a defendant to prove that, in the case of a statement consisting of an opinion, the opinion was honestly held.” Section 21 of the of the 2009 Act reads:

“The matters to which the court in a defamation action shall have regard, for the purposes of distinguishing between a statement consisting of allegations of fact and a statement consisting of opinion, shall include the following:

a) The extent to which the statement is capable of being proved;

b) The extent to which the statement was made in circumstances in which it was likely to have been reasonably understood as a statement of opinion rather than a statement consisting of an allegation of fact; and

c) The words used in the statement and the extent to which the statement was subject to a qualification or a disclaimer or was accompanied by cautionary words.”

216. The defence deals with opinions and not facts. According to McMahon and Binchy at paragraph 34.255:

“Although the defence is entitled to “honest opinion”, it seems that one cannot have an opinon which is protected unless it is based on a substratum of fact. An opinion which is not to some extent anchored on facts, an opinion which floats in a factless vacuum, is not protected by s.20, This to some extent ensures that the “opinion” voiced bears some connection with reality.” It is therefore for the defendant to prove it is an opinion and it was honestly held. The defendant did not give a reason for his statement on the day of the speech. I do not accept that the defendant proved he “honestly” in the legal sense of the word understood in defamation law. It was in my view, objectively reckless bearing in mind the HSE and HIQA reports and the coroner’s inquest would have been known to the defendant when he gave his speech.

217. Fair and Reasonable Publication in a matter of Public Interest This is a defence under Section 26 of the 2009 Act:

“It shall be a defence (to be known, and in this section referred to, as the “defence of fair and reasonable publication”) to a defamation action for the defendant to prove that—

(a) the statement in respect of which the action was brought was published—

(i) in good faith, and

(ii) in the course of, or for the purpose of, the discussion of a subject of public interest, the discussion of which was for the public benefit,

(b) in all of the circumstances of the case, the manner and extent of publication of the statement did not exceed that which was reasonably sufficient, and

(c) in all of the circumstances of the case, it was fair and reasonable to publish the statement.” This is the Irish legislative response to the case of Reynolds v Times Newspapers Ltd [1999]

4 All ER 609 and subsequent jurisprudence. The law on section 26 of the 2009 Act and also concerning qualified privilege has been recently cogently set out in the Court of Appeal

decision of Bird v Iconic Newspapers [2024] IECA 62 by O’Moore J.

218. McMahon and Binchy point out at paragraph 34.301:

“As can be seen from s 26(1), to succeed in raising the defence, the defendant must prove that the publication was made in good faith and on a topic of public interest where the discussion was for the public benefit. Moreover, the publication must be moderate and restrained (that is it must not “exceed that which was reasonably sufficient”) and in all the circumstances it was fair and reasonable to publish the statement.

I do not hold that this defence applies. In addition, I also do not agree with Mr Kavanagh’s submission that the publications was in good faith of on a matter of public interest and was not exaggerated or inflamed. It was neither fair nor accurate.

219. Qualified Privilege Section 18 of the 2009 Act sets out the grounds when the qualified privilege rule can apply. Section 19 of the 2009 Act sets out grounds for why the loss of qualified privilege occurs. Specifically, Section 18(2) of the 2009 Act states:

“Without prejudice to the generality of subsection (1), it shall, subject to section 19 , be a defence to a defamation action for the defendant to prove that—

(a) the statement was published to a person or persons who—

(i) had a duty to receive, or interest in receiving, the information contained in the statement, or

(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and

(b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.” McMahon and Binchy point out at paragraph 34.193:

“The key concepts in the defence are a duty to receive or interest in receiving the information and a reciprocal duty or interest in the person who publishes the statement to give it. The duty or interest can be of a legal, moral or social nature (s 18(7))…”

220. I have stated that in my opinion, qualified privilege does not apply in this case. The Renua Annual Conference was not a group that had a duty to hear that the plaintiff started a lie and got rewarded for it. I also have held the statement was reckless; even if I am incorrect in that, there is a contradiction in the defences in the sense that it is difficult to see how a defence of qualified privilege and a defence of truth can apply to the same facts. As stated above the Court of Appeal decision of Bird v Iconic Newspapers [2024] IECA 62 clarified that this is a limited defence. To quote O’Moore J at paragraph 47:

“The requirement that a body to which information is communicated had a duty or interest in receiving it was conclusively established in Hynes-O'Sullivan v O'Driscoll [1988] IR 436. In that case, the communication was to the Irish Medical Association.

At p. 449 of the report, Henchy J. found:-

“In those circumstances this Court is being asked to hold that the communication sent by the defendant to the IMA is protected by qualified privilege because, although the IMA in fact had no duty or interest in the matter, the defendant honestly and reasonably believed that it had. However, such a version of the law would run counter to two Supreme Court decisions: Reilly v Gill & Ors. [1946] 85 ILTR 165 and Kirkwood Hackett v Tierney [1952] IR

185. While the point does not seem to have been specifically argued in those cases, it is clear from the observations made in the judgments that the Court in each of those decisions was firmly of the opinion that an occasion of qualified privilege cannot exist unless the person making the communication has a duty or interest to make it and the person to whom it is made has a corresponding duty or interest to receive it. It would require exceptional circumstances before this Court should overrule such a clearly held and repeatedly expressed opinion. I have no difficulty in rejecting the submission, which has only slender judicial support, that the occasion is one of qualified privilege if the person making the communication honestly believes that the person receiving the communication has a duty or interest in receiving it. I cannot believe that the guarantee in Art.

40.3.1 of the Constitution that the State will protect, and, as far as practicable, by its laws defend and vindicate the personal rights of the citizen, would be effectuated if a right to defame with impunity is recognized on such a purely subjective basis. An occasion of qualified privilege is to be given recognition only to the extent that it is necessary under Art. 40.6.1 to recognize, on an objective basis, the right to express freely convictions and opinions. The constitutional priorities would be ignored if the law considered an occasion of qualified privilege to depend only on the honest opinion of the communicator as to the existence of a right or duty in the other person to receive the communication. The constitutional right to one's reputation would be of little value if a person defamed were to be deprived of redress because the defamer honestly but unjustifiably believed that the person to whom the words were published had a right to receive the communication. I consider, therefore, that the only part of the defendant's submission which warrants serious consideration is the contention that a defendant is entitled to the defence of qualified privilege if he honestly and reasonably believed that the person to whom he published the

words complained of had a duty or interest as to the matters referred to in the communication.”

Finally, qualified privilege is based on the defence that the words are not true, but the defendant has pleaded that they were true. It is not a question of pleading both defences and hoping one will stick, the defence have to be clear on what the grounds of the defences are.

221. Lack of knowledge of any alleged publication This appears to relate to the defendant’s lack of knowledge of the subsequent publication on Facebook by Renua. It is a mitigation factor rather than a defence; the defendant did arrange with Renua to take the speech off their Facebook page. The defendant did not publish a clarification or apology; instead, he pleaded truth. This issue is also dealt with in the submission on contributory negligence below.

222. Contributory negligence allegation Section 35 1(f) of the Civil Liability Act 1961 states:

“[W]here the plaintiff’s damage was caused by two or more persons and such persons would have been concurrent wrongdoers were it not for a contract by the plaintiff with one of such persons before the occurrence of the damage exempting that person from liability, the plaintiff shall be deemed to be responsible for the acts of that person.” Section 11 of the 2009 Act states:

“(1) Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.

(2) A court may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require.

(3) In this section “multiple publication” means publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.”

Mr Kavanagh SC for the defendant has argued that in the event that this court were to find for the plaintiff in this action, that she should also be responsible where she did not sue the other wrongdoer and allowed the period of limitation to expire.

Specifically, he states:

• There was an opportunity to sue Renua and it was not availed of.

• The plaintiff was on full notice on the 15th March 2019 of what Mr Waters position was and the opportunity of suing Renua was not availed of.

• The plaintiff allowed the limitation period to expire after one year and did not avail of the option of applying to the court to extend the time [up to 2 years]

• The defendant did not know that the publication ws going to be published by Renua on Facebook, and to fix him with vicarious liability for their joint tortfeasors action would be unjust.

• That the defendant is not in a position to have those damages apportioned with Renua. He did not know it was going to be published by them but once he did , he took steps to have the publication removed

• Overall, he states it would be manifestly unfair to fix him with that portion of damage due to the publication by Renua.

223. In contrast Mr English Bl for the defence has argued in rebuttal quoting from Cox and McCullough as follows at paragraph 13-279:

“If the defendant has pleaded (for instance) s 35(1)(i) of the Civil Liability Act 1961, making the case that the plaintiff is identified by way of contributory negligence with the liability that a missing concurrent wrongdoer against whom the claim has become statute barred, the onus would be on the defendant to lead evidence to establish the putative liability of the missing concurrent wrongdoer.” He stated that:

• If the defendant pleaded concurrent wrongdoer under section 35(1)(i), the onus is on the defendant to lead the evidence to establish the punitive liability of the missing wrongdoer.

• There was no evidence produced to show the defendant was statute barred, and in fact was not statue barred.

• There was no evidence produced to show a duty was owed by a concurrent wrongdoer.

• The defendant had the same ability to apply pursuant to the Defamation Act 2009 to join any one of the parties to indemnify him.

• He was entitled pursuant to section 38 of the 2009 Act, to apply to the Court to extend the time in which to bring an action against anyone he believed to have a liability and

he did not. He knows that Facebook would be benefitting from innocent publication, they are a platform and not people you can purse in relation to matters such as this.

I prefer Mr English’s argument and relying on the discussion in Coffey v Iconic Newspapers Ltd [2018] IEHC 856, I believe it was necessary for the defendant to have led in this evidence to succeed. The defendant would have had to ask the court for a time extension to issue proceedings against Renua [not exceeding two years] but in this case I believe there would not have been a difficulty in obtaining this as he was only served with the Civil Bill just before the one year expired.

224. Assessment of Damages Section 6 of the 2009 Act states “the tort of defamation is actionable without proof of special damage.” Section 31 of the 2009 Act states:

“(1) The parties in a defamation action may make submissions to the court in relation to the matter of damages.

(2) In a defamation action brought in the High Court, the judge shall give directions to the jury in relation to the matter of damages.

(3) In making an award of general damages in a defamation action, regard shall be had to all of the circumstances of the case.

(4) Without prejudice to the generality of subsection (3), the court in a defamation action shall, in making an award of general damages, have regard to—

(a) the nature and gravity of any allegation in the defamatory statement concerned,

(b) the means of publication of the defamatory statement including the enduring nature of those means,

(c) the extent to which the defamatory statement was circulated,

(d) the offering or making of any apology, correction or retraction by the defendant to the plaintiff in respect of the defamatory statement,

(e) the making of any offer to make amends under section 22 by the defendant, whether or not the making of that offer was pleaded as a defence,

(f) the importance to the plaintiff of his or her reputation in the eyes of particular or all recipients of the defamatory statement,

(g) the extent (if at all) to which the plaintiff caused or contributed to, or acquiesced in, the publication of the defamatory statement,

(h) evidence given concerning the reputation of the plaintiff,

(i) if the defence of truth is pleaded and the defendant proves the truth of part but not the whole of the defamatory statement, the extent to which that defence is successfully pleaded in relation to the statement,

(j) if the defence of qualified privilege is pleaded, the extent to which the defendant has acceded to the request of the plaintiff to publish a reasonable statement by way of explanation or contradiction, and

(k) any order made under section 33, or any order under that section or correction order that the court proposes to make or, where the action is tried by the High Court sitting with a jury, would propose to make in the event of there being a finding of defamation.

(5) For the purposes of subsection (4) (c), a defamatory statement consisting of words that are innocent on their face, but that are defamatory by reason of facts known to some recipients only of the publication containing the defamatory statement, shall be treated as having been published to those recipients only.

(6) The defendant in a defamation action may, for the purposes of mitigating damages, give evidence—

(a) with the leave of the court, of any matter that would have a bearing upon the reputation of the plaintiff, provided that it relates to matters connected with the defamatory statement,

(b) that the plaintiff has already in another defamation action been awarded damages in respect of a defamatory statement that contained substantially the same allegations as are contained in the defamatory statement to which the firstmentioned defamation action relates.

(7) The court in a defamation action may make an award of damages (in this section referred to as “special damages”) to the plaintiff in respect of financial loss suffered by him or her as a result of the injury to his or her reputation caused by the publication of the defamatory statement in respect of which the action was brought.”

225. Section 32 of the 2009 Act states:

“(1) Where, in a defamation action—

(a) the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement, and

(b) the defendant conducted his or her defence in a manner that aggravated the injury caused to the plaintiff’s reputation by the defamatory statement, the court may, in addition to any general, special or punitive damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “aggravated damages”) of such amount as it considers appropriate to compensate the plaintiff for the aggravation of the said injury.

(2) Where, in a defamation action, the court finds the defendant liable to pay damages to the plaintiff in respect of a defamatory statement and it is proved that the defendant—

(a) intended to publish the defamatory statement concerned to a person other than the plaintiff,

(b) knew that the defamatory statement would be understood by the said person to refer to the plaintiff, and

(c) knew that the statement was untrue or in publishing it was reckless as to whether it was true or untrue, the court may, in addition to any general, special, or aggravated damages payable by the defendant to the plaintiff, order the defendant to pay to the plaintiff damages (in this section referred to as “punitive damages”) of such amount as it considers appropriate.”

226. Financial loss in the sense of loss of income was not claimed but that is entirely normal in these types of actions. Aggravated and punitive damages are now solely considered within the statutory framework of Section 32 the 2009 Act per Nolan v Sunday Independent Ltd [2017] IEHC 367. On the one hand the trial was conducted in a respectful manner by both plaintiff and defence counsel. Although the questions were robustly put to the various witnesses as is normal in an adversarial litigation system, there was not in my view a hostile cross-examination of witnesses. On the other hand, I note that no apology or retraction was forthcoming, and the defendant insisted on proceeding with the defence. His interview with a third party in December 2018, was provocative and his letter of 15th March 2019 was both unhelpful and, again, provocative. As outlined by Mr English, the defendant’s threats during the trial process of bringing a substantial number of witnesses to attend at the trial was unreasonable and could be construed as intimidation of the plaintiff. These factors are ones that I could consider in awarding aggravated or punitive damages. I comment separately on the interview of the 24th January 2024 below.

227. I have a discretion regarding punitive and exemplary damages, I note the defendant did arrange for the speech to be deleted from the Renua website. I also note the plaintiff solicitor’s original letter was the same date as the issue of the proceedings which did not afford him time to address the issues adequately even if it was felt by the plaintiff he would not do so. The suggestion from the defendant of bringing a large number of witnesses to court was not pursued at the trial and the defendant was, at the trial, respectful of the court and the court process. The defendant did not gain a litigation advantage by his pre-trial behaviour. The central issue in the trial was the plaintiff’s and defendant’s interpretation of what the words at the Renua conference meant. For the plaintiff, the central issue was her integrity as a journalist in respect of the Irish Times article of the 14th November 2012. For the defendant, it was freedom of speech over an issue he holds strong convictions on.

228. Overall, I take the view that general damages are a sufficient remedy against the unsuccessful defendant. One matter of serious concern was the interview of the 24th January 2024 which caused distress to the plaintiff. The transcript of the interview of the 24th January 2024 gives the impression of creating an atmosphere of serious intimidation against the plaintiff. The comments made by the interviewer [not the defendant] appeared to be an invitation to hate, and the suggestions of charges and incarceration of a respected journalist, or indeed any person in an asylum or prison, is akin to something from the worst excesses of an authoritarian regime and not one we associate with political or journalistic commentary in a liberal democracy. The comments made were shocking. I would have been equally shocked if the comments were made about the defendant. I have not taken into account the interview of the 24th January 2024 in this case in the assessment of damages as it is removed in time from the original defamatory comment and in my view should be treated as a separate action. In addition, I have not heard sufficient evidence of what happened on the 24th January 2024 to assess its impact in respect of damages subject to section 32 of the 2009 Act. Overall, I believe to admit this interview in the assessment of damages in this case would in my view introduce an extra layer of complexity when the real issue in this action is what happened on the 14th November 2017.

229. Damages under Section 31 of the 2009 Act The central issue in the assessment of damages is in assessing the factors under section 31. It is to be compensatory for the defamation caused rather than as a punishment for the wrongdoing by the defendant. This is so that it respects the proportionality criterion and does not offend a restriction on the right to freedom of expression of the parties. Therefore, compensation must be proportionate to the damage suffered by the plaintiff and in this regard the factors contained within section 31 are considered below in four groups.

The nature of the defamation: The defamation was careless and reckless of the plaintiff’s reputation in order to make a political point. It was made at a political conference to around 80 delegates, but it was posted on Facebook and entered into the public domain. The words suggested that she was a journalist who was deceitful in her presentation of an important news story.

The importance of the plaintiff’s reputation: The plaintiff is a much respected and ethical journalist with the Irish Times. This was the most important story of her career to-date. She was awarded Journalist of the Year by her peers in 2013. To suggest that she was deceitful with the story by a fellow respected and well-known writer and commentator is consequential. The most important issue for the plaintiff from her evidence is respect for her integrity as a journalist.

The mitigation factors: The defendant did defame the plaintiff. However, he subjectively believed that he was expressing an opinion on a matter of public importance rather than defaming the plaintiff; he did not initially know the speech was circulated on Facebook, and he made reasonable efforts to have it removed form Facebook by contacting Renua twice; it was in fact removed at his instigation. Proceedings were issued without giving the defendant a reasonable opportunity to address the defamation. His evidence to this court does explain his view but it has taken this trial for him to do so in a cogent manner. His speech at the Renua conference didn’t clarify of what he subjectively meant, and his pre-trial responses were, at best, confusing, and at worst, confirming the defamation. Finally, the defendant missed the most important part of mitigation which is an apology and an offer to make amends. Had he done so, this would have been a very different type of assessment of damages.

The impact of the defences pleaded particularly “truth” and “qualified privilege”: The defendant has a right to defend the proceedings as he thinks appropriate. Even where the court holds a plea of truth is not an aggravating factor as I have done in this case, it nevertheless has serious consequences if the defence of truth fails. It destroys the basis of a qualified privilege defence if it is available. Moreover, it reduces the impact of the mitigating factors as it in effect re-emphasises the defamation.

230. Award of damages I hold defamation in this case was a serious attack on the plaintiff’s professional integrity as a journalist and caused her considerable hurt. Fortunately, this attack on the plaintiff’s reputation as a journalist did not result in consequences for her career. She is held in very high esteem as a journalist by her peers and this confirmed today by this Court. It is important to recognise the damage to the plaintiff but also be proportionate taking the factors outlined in this judgement into account. Therefore, the appropriate award for compensatory damages as an award to vindicate the plaintiff’s reputation in this case is €35,000.

Plaintiff’s Counsel: Andrew Walker SC Shane English BL Instructed by Lavelle Partners LLP solicitors.

Defendant’s Counsel: Fergal Kavanagh SC Conor Rubalcava BL Greg Murphy BL Instructed by Brendan Maloney solicitors.