Sunday 11 December 2016

Court refuses businessman Denis O'Brien's bid to call US law expert in forthcoming trial

Tim Healy

Published 03/11/2016 | 17:44

Denis O'Brien Photo: Bloomberg
Denis O'Brien Photo: Bloomberg

BUSINESSMAN Denis O’Brien cannot call evidence from a US constitutional law expert in his forthcoming case alleging statements by TDs in the Dail about his banking affairs breached his rights, including to a private life, the High Court has ruled.

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Mr O’Brien claims Dail statements by Social Democrats TD Catherine Murphy and Sinn Fein TD Pearse Doherty in May and June 2015 breached his rights in forcing him to concede in the High Court in June 2015 a script which he sought to prevent RTE publishing concerning his banking affairs with IBRC was by then in the public domain.

The Dail Committee on procedure and Privileges (CPP), in response to complaints by Mr O’Brien, later held neither Deputy had breached the standing orders governing debate in the Dail.

Mr O’Brien, who will give evidence in the case himself, claims there is no absolute privilege attaching to the TDs statements on grounds including utterances in the House must not usurp the judicial domain.

His case is due to open on November 29 and, in a pre-trial application, he sought to call evidence from Professor Laurence Henry Tribe of Harvard Law School, an American constitutional law expert involved in writing the constitutions of South Afrcia and the Czech Republic. The application was opposed by the CPP and the State.

On Wednesday (Nov 3), the President of the High Court, Mr Justice Peter Kelly, said Mr O'Brien's case, including claims under the European Convention on Human Rights Act 2003, is "rooted exclusively in his alleged entitlements under Irish law".

The case will be decided solely under Irish law, no issue of American constitutional law or foreign law arose and Professor Tribe's evidence is inadmissible, the judge ruled. 

Even if admissible, that evidence was not "reasonably required", within the meaning of new conduct of trial rules, for the court to determine the case, he said. The evidence was "not required at all, much less reasonably required".

While Mr O'Brien's side argued this was a "unique and important" case raising issues of Irish law not previously decided, all cases are unique to their own facts and important to the litigants, he said.

The case raised "interesting and important" question as and the court may well have to decide issues not adjudicated on before but that was no justification for admitting this evidence which, on principle, was inadmissible.

It was open to Mr O'Brien to cite US decisions in his case, an option frequently followed in other cases, he noted.

He also awarded costs of the application against Mr O'Brien.

Earlier in his decision, the judge noted, on October 14 last, solicitors for Mr O'Brien indicated he intended to call Professor Tribe and a 61 page draft proof of his evidence was provided.

Expert evidence is not admissible in any matter of domestic law but, if a question of foreign law has to be decided in Irish court proceedings, the courts can, and do, receive expert testimony from foreign lawyers on that, he said.

If an Irish court had to decide an issue of American constitutional law, Prof Tribe would be well qualified to give evidence which would be admissible but there was no issue of American constitutional law for determination in this case.

Prof Tribe referred in his draft evidence not just to US cases but also to decisions from the UK, Australia, New Zealand and South Africa, the judge noted. 

No issue of law from the other jurisdictions arose here and, if this evidence was admitted, the defence could call counter expert evidence from a US expert and possibly experts from several other jurisdictions which, in the conduct of a trial involving only issues of Irish law, would be "absurd".

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