Former Nama adviser Frank Cushnahan drops legal claims against the BBC
Former Nama adviser Frank Cushnahan has dropped all legal claims against the BBC.
The claims related to two Spotlight investigations into NAMA, which were broadcast in February and September 2016.
Judgment was entered today for the broadcaster in the lawsuit brought against it by ex-National Assets Management Agency adviser Frank Cushnahan.
Mr Cushnahan sued over the contents of two BBC Spotlight programmes into his alleged involvement in the Nama loan book sale process.
The outcome can be disclosed after a judge lifted reporting restrictions and an anonymity order imposed by the court.
In a statement Mr Cushnahan's lawyers acknowledged his unsuccessful action against the BBC and Spotlight Editor Jermey Adams was being discontinued.
They now plan to take the UK Government to the European Court of Human Rights for allegedly breaching its Article 6 obligations to ensure a right to a fair trial.
Nama, the Irish Republic's so-called "bad bank", took control of the portfolio after the 2008 property crash.
The Spotlight programmes probed circumstances surrounding a £1bn deal for the sale of the loan book - given the name Project Eagle - six years later.
They also examined any role played by Mr Cushahan and others in advising Nama.
The businessman, who has not been charged with any wrongdoing, served on a Nama advice committee dealing with Northern Ireland issues from 2010 to 2013.
Earlier this year he failed to secure an injunction to stop any further Spotlight reports on his role.
At that stage a judge held that there was a clear public interest in publication.
Mr Cushnahan's legal action against the BBC and Mr Adams, involving claims of a breach to his Article 6 rights, were finally dropped today.
Following the outcome the broadcaster said it has not apologised, paid damages or any of Mr Cushnahan's legal fees.
Mr Cushnahan's legal representatives claimed he has been the victim of "a sustained attack on his character by many media outlets over the last number of months".
Solicitor Paul Tweed issued a statement stressing his client's full co-operation with all relevant investigatory authorities.
He said: "Though those proceedings have not been successful, the proceedings have exposed the fact that there has been a manifest and compelling failure by the UK Government to transpose into domestic law the full protection of his reputation required by the European Convention on Human Rights, particularly Article 6.
"Specifically, the proceedings have exposed the fact that because Mr Cushnahan is not the subject of any police bail, his reputation cannot be protected by virtue of the provisions of the Contempt of Court Act 1981, notwithstanding that the NCA (National Crime Agency) has not completed its investigation."
He added: "Accordingly, instructions have been received from Mr Cushnahan to pursue an application to the European Court of Human Rights seeking a declaration that the UK is in breach of its obligations under Article 6 of the European Convention on Human Rights by failing to transpose into domestic UK law the full protection that Article 6 requires to be provided to him.
"Those proceedings will be issued shortly. In the interim, Mr Cushnahan has decided most reluctantly that to pursue existing proceedings seeking the protection of his reputation through our domestic courts is futile, given the failure of the UK Government to provide our courts with sufficient powers by which to protect his reputation.
"Accordingly he has decided to discontinue his existing proceedings against the BBC at this time."
Mr Cushnahan instructed a businessman who gave him thousands of pounds in cash to tell police probing the sale of Nama’s northern loan book he never received any payment.
Covert audio recordings revealed Frank Cushnahan was given £40,000 in cash and a separate €10,000 payment in alleged ‘fixer’s fees’ by Co Down developer John Miskelly, whose properties had been taken over by the Republic’s ‘bad bank’, during secret meeting in Belfast in 2012 and 2013.
The BBC said it has not apologised, paid damages or any of Mr Cushnahan's legal fees. Legal claims brought against the BBC's Spotlight Editor Jermey Adams have also been dropped.
The explosive recordings, made by developer John Miskelly and broadcast by the BBC's Spotlight programme, reveal Mr Cushnahan was given the cash during a secret meeting in Belfast in August 2012.
Mr Miskelly was once one of the richest men in the north, with an estimated fortune of £68 million.
But he later suffered serious health problems and his property empire collapsed during the financial crash.
He was left with huge corporate debts and his properties were absorbed by Nama.
The NCA is investigating the sale of Nama's northern loan book to US firm Cerberus after a £7 million alleged 'fixer's fee' was transferred to an Isle of Man bank in connection with the £1.2 billion deal.
The sale is also being investigated by authorities in the US.
The Irish News first revealed in June that Mr Cushnahan and former Nama official Ronnie Hanna were arrested by the National Crime Agency (NCA) and later released on bail.
Mr Cushnahan told Spotlight he could not comment on allegations made in the programme due to the NCA investigation.
BREAKING - FRANK CUSHNAHAN DROPS LEGAL CASE AGAINST BBC SPOTLIGHT NI AFTER 9 MONTH COURT BATTLE: https://t.co/cSceoxNHRR— Mandy McAuley (@mandy_mcauley) June 21, 2017
A previous Spotlight programme broadcast covert recordings from Mr Miskelly which revealed Mr Cushnahan was due to get a secret fixer's fee from the sale of Nama's northern loan book.
In the audio recordings broadcast, Mr Miskelly told Mr Cushnahan he was giving him £40,000 in two piles of cash.
Although it was not clear what the money was for, in the tapes Mr Cushnahan told the developer he was going to help him escape Nama and regain control of his properties - a breach of Irish law.
The programme alleged that Mr Cushnahan was also given a further €10,000 in early 2013 during a meeting in the lobby of Tughans law firm in Belfast.
Video courtesy of BBC Spotlight:
The Cerberus investment fund bought Nama's Northern Ireland property portfolio in 2014. Cerberus then sold Mr Miskelly's former properties to another company.
The recordings reveal Mr Cushnahan told Mr Miskelly tell the NCA that he did not receive any money.
During a meeting Mr Cushnahan said: "Because they're going to come and say did I get paid by anybody and the answer to that is no."
Mr Miskelly and Mr Cushnahan were introduced by former First Minister Peter Robinson's son Gareth.
During the August 2012 meeting, Mr Miskelly told Mr Cushnahan: "I don't know nothing about you, I don't really know your background. Only Gareth...the only way I know you Frank is through Gareth".
Mr Cushnahan replies: "The other thing with Gareth, like to be fair Gareth wants to look after you too."
There is no suggestion Gareth Robinson knew about the £40,000 payment or had any role in it.
At a later meeting Mr Cushnahan told Mr Miskelly he would "look after" Mr Robinson.
"I would look after him is basically, effectively in a deal that comes forward and it's on, I would give him something out of the other, do you know?" he said.
The Spotlight programme in September revealed:
- Mr Miskelly gave Mr Cushnahan £40,000 in cash at a secret meeting in August 2012
- He later gave him €10,000 in cash in the lobby of of Tughans law firm in Belfast, where Mr Cushnahan had an office
- Mr Cushnahan told Mr Miskelly last year to tell the National Crime Agency (NCA) he had never been given any payment and spoke of his fears he could end up in prison
- He told Mr Miskelly to tell Stormont's finance committee, who were probing the Nama sale, to say he was simply acting for the developer 'in an advisory capacity'
- That the pair, who barely knew each other, had been introduced by Gareth Robinson, the son of former First Minister Peter Robinson
- That Mr Cushnahan and former senior Nama executive Ronnie Hanna were "as thick as thieves" and suggested Mr Hanna would give him confidential Nama information - an allegation Mr Hanna denied
- Mr Cushnahan gave Mr Miskelly a note allegedly saying what each of his Nama properties were worth - a breach of Irish law
- That he was working with DUP MLA Sammy Wilson and alleged that political pressure from him and Peter Robinson could be put on Nama to let northern properties be sold at "a discount" to help developers - a suggestion Peter Robinson told the programme was "risible"