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2nd December 2020, 21:00

Appeal Court to decide whether to uphold Supreme Court ruling in FSC defamation case

The Appeal Court has heard three days of submissions which largely focused on whether allegations made by Nick Cruz against the Financial Services Commission and its former officers, could support a finding of ‘Malice”.

In January, Puisne Judge Liam Yeats dismissed the applications filed by the FSC, Samantha Barrass and Peter Taylor to throw out the defamation lawsuit filed against them by the former Non-Executive Chairman of Enterprise Insurance.

The Appeal Court judges must now decide whether or not to overturn Mr Justice Yeats’ ruling.

Day two and three of the Appeal Court hearing heard submissions from Nick Cruz’s lawyer, who defended Mr Justice Yeats’ ruling earlier on this year.

Julian Santos of 5RB Chambers said the Supreme Court showed the correct understanding and application of the legal principles involved, which were then applied to the Judgement, and saw all the defendants' applications thrown out.

Puisne Judge Liam Yeats ruled that the allegations made by Mr Cruz, if true, would support a finding of Malice.

Over two days, Mr Santos highlighted what he called, the ‘very serious allegations of wrongdoing’ made by the Appellants in their October 2016 press release, and also in a subsequent GBC interview.

They claimed to have been ‘significantly and consistently misled’ about Enterprise’s true financial position.

Mr Santos argued that far from being shocked at the state of the company’s finances, the defendants had, in fact, been intimately involved in the process leading up to the Enterprise Insurance liquidation.

He drew a distinction between a bland press release announcing a major investigation and what he called the ‘seriously defamatory’ statement issued by the FSC, Samantha Barrass and Peter Taylor - the day after the Liquidator’s report. Mr Santos said they were not entitled to destroy Mr Cruz’s reputation before that investigation had taken place, even if they felt it was in their interest to say the FSC was trying to protect its reputation in the face of international press criticism.

The Court also heard detailed technical arguments on the issue of Immunity and Qualified Privilege – matters which Mr Santos argued did not apply, were ‘bedevilled with complexity” and should not be decided on without the full facts at trial.

Mr Santos said the FSC had thrown everything including the kitchen sink at Mr Cruz, and after two years of delay he should be allowed to have his day in Court

The defendants’ aim to strike out references to Malice and Bad Faith at this early stage, which would enable them to try and claim Qualified Privilege or Immunity, which would allow them to apply for a summary dismissal of the claim.

Desmond Brown QC, also of 5RB Chambers, closed the hearing by referring to what he called the ‘airy generalities’ against his clients. He maintained that Mr Justice Yeats had made a fundamental error in his ruling on Malice and Bad Faith and said this plea is not sustainable in law, and should be struck-out in its entirety.