A Belfast newspaper which successfully challenged a £25,000 libel award for a scathing restaurant review must pick up its own legal bill, judges have decided.
The Court of Appeal directed that there should be no order for costs in the case involving the Irish News and Ciarnan Convery, owner of Goodfellas pizzeria.
Its decision means both sides will be left to pay their own costs for the hearing at which the original damages award was quashed last year.
The case, which centred on a withering appraisal of the restaurant by Irish News food critic Caroline Workman, was the first of its kind to be brought before the courts in Northern Ireland and seen as a potential watershed for press freedom.
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Lawyers for the newspaper defended their criticism of Goodfellas on the basis of justification and fair comment.
But Convery, a former taxi driver who opened the restaurant in 1991, claimed that the review was a hatchet job.
Workman, a former editor of the Bridgestone restaurant guide, gave the eatery a one out of five rating in August 2000 and declared her overall impression was one of huge disappointment.
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Overturning the original finding that the appraisal was defamatory, appeal judges found that the jury in the trial were misdirected, and that there was confusion between fact and comment in the review.
A retrial was also ordered, although there is no indication on when that will be held.
With the bill for the appeal unresolved, Brian Fee QC for the Irish News argued at a hearing on 28 January that it was the general rule that the winners should recover their costs.
The jury at the original trial was misdirected on both the newspaper’s defences of fair comment and justification, he said.
“We remained with a two-pronged defence,” Mr Fee told the court.
“If you take the view that a part of the article is fact and part of the article is comment then we are going to have the comfort of having justification as well as fair comment.”
He also argued that any failing by the newspaper’s legal team during the original trial might have involved their not having been “ruthless” enough in defining facts from comments in the review.
But Michael Lavery QC, for Convery, said the Irish News’s legal team was responsible for any mistakes in how the case was originally presented.
He said: “The question for the court is who is the author of this mistrial, and I would submit it can only fairly be said that the analysis the defendants made and was accepted by the judge led to the errors in the verdict.”
Lavery added: “The entire trial, as a result of the Court of Appeal [decision] has been found to be conducted on a fundamental misunderstanding of defences between fact and comment.
“This is a matter of some public interest and, if I may say so, of more importance to the Irish News than to Mr Convery who hasn’t a particular interest in clarifying the law of libel.”
Directing that no order for costs should be made, Lord Chief Justice Sir Brian Kerr acknowledged there was “a great deal of force in the persuasive submissions” made by Fee.
But he ruled that the newspaper had made out a significantly different case during the appeal.
Kerr stressed this was no criticism of its legal representatives, and praised their “skill and tenacity”.
He added: “On that basis we consider that the case made by the defendant, for what we are satisfied were perceived to be entirely proper reasons, at the time the appeal was entirely successful was on a different basis altogether.
“We therefore consider this is an instance where one should depart from the normal rule.”
The costs for the original libel action were deferred until the outcome of the proposed retrial of the case.
Convery, who attended the hearing, declined to comment outside the court.
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