Wednesday 18 October 2017

Dáil Committee did not 'properly' investigate complaint about comments made by two TDs - Denis O'Brien tells High Court

Businessman Denis O'Brien arrives at the Four Courts in Dublin. Photo: Brian Lawless/PA Wire
Businessman Denis O'Brien arrives at the Four Courts in Dublin. Photo: Brian Lawless/PA Wire

Andrew Phelan and Shane Phelan

BUSINESSMAN Denis O'Brien says the Dail Committee on Procedure and Privileges (CPP) did not "properly" investigate his complaint alleging comments in the Dáil by two TDs interfered with a court case he was involved in with RTÉ.

He said the investigation led him to question his confidence in the committee as an authoritive body.

The telecoms and media tycoon was giving evidence in an action arising out of statements by Ms Murphy and Sinn Féin TD Pearse Doherty in the Dáil in May and June 2015 about his banking affairs.

Under cross examination from Michael Collins SC, for the committee, Mr O'Brien said that when the CPP decided not uphold his complaint against Social Democrats TD Catherine Murphy and Sinn Fein TD Pearse Doherty, they "leaked" their decision four days before he received a letter from them.

To his mind the actions of the TDs “was a flagrant breach”.

Mr O’Brien said he appreciated his legal action over the TDs’ comments was unique.

“I think we were in new territory. I asked my lawyers if this had happened before and they knew of no similar case,” he said.

He said there was Tweeting and debate in the Dáil, which had the effect of unravelling his injunction.

"I may have read something and I said, that is a breach of the court order and I rang my solicitor,” he said.

Asked if it was he or his solicitor who wrote threatening legal proceedings against media outlets if they reported what was said in the Dail, he replied: “I think both but I stand to be corrected.”

Mr Collins asked him what he had been trying to achieve.

“To get people to respect the High Court order and not publish what were private, personal banking details,” he said.

Even worse than his complaint to the CPP not being upheld, Mr O’Brien said, was that the CPP “leaked their decision to a newspaper four days before we were given the final letter.”

Mr Collins asked if Mr O’Brien would still have brought the proceedings if the CPP had given a “rebuke or reproof” to the TDs.

“The horse had bolted at that stage,” Mr O’Brien replied.

Mr Collins put it to him that one reason for the proceedings was that he now wanted the court to issue a rebuke.

“My impression was that the CPP didn’t behave particularly well in leaking their decision before telling us,” Mr O’Brien replied. “We felt that they didn’t really investigate it properly... you would have to question your confidence in them as a body.”

“The real situation is that, as a citizen of this country, I went into the High Court and got a court order and that was deliberately unravelled by two members of the Oireachtas and I went and made a complaint to the CPP and that wasn’t handled in my mind particularly well,” Mr O'Brien said.

Mr Collins asked if Mr O’Brien had felt there was “no point” in proceeding with part of his injunction application because of what the TDs said.

“I had a view that the horse had bolted, that the protection I had originally sought was being diluted by the constant drip-feed of information,” Mr O’Brien said.

Mr O’Brien confirmed to Mr Collins that he wanted the court to look at the evidence that had been before the CPP and conclude that there had been nothing before the committee to allow it to decide that the TDs in their utterances had acted in good faith and responsibly.

Mr Collins then asked Mr O’Brien why he had not sued the TDs themselves.

“The decision not to sue the deputies was taken on legal advice,” he said, adding: “that is something I will review in the future.”

He said he was not prepared to share the legal advice he got on this matter with the court.

“If you thought you could sue the deputies, would you do so?” Mr Collins asked.

“I honestly don’t know,” Mr O’Brien replied. “I would have to consult my lawyers.”

Asked again if he wanted the court to issue “some sort of reproof” to the TDs and the committee, Mr O’Brien said: “I would like the court to determine whether the members of the Oireachtas can breach a court order.”

As he was referred to documents before the court, Mr O’Brien put on a pair of red reading glasses he had brought with him to the witness box.

Questioned again about whether he was asking the court to investigate the motives behind what the TDs had said and to come to a conclusion on it, he said: “yes.”

Earlier in the hearing, the businessman told the court threats were made to his and his family’s lives after a TD spoke about his banking arrangements with the Irish Bank Resolution Corporation in the Dáil.

Mr O’Brien confirmed to the court that while he had often received “nasty comments”, the threats on his life were “probably the worst.”

His barrister, Michael Cush SC, asked Mr O’Brien about “personally upsetting threats to your life and the lives of your family.”

These threats were received from two different people in on May 31 last year, just three weeks Deputy Catherine Murphy made her comments in the Dail.

He later reported the threats to gardaí, the court heard.

“You had often received nasty comments but nothing of this nature before,” Mr Cush said.

“I thought this was probably the most serious,” he replied.

The court heard the threats were made by two people, but Mr O’Brien was not suggesting TDs were in any way involved.

Catherine Murphy and Pearse Doherty made statements in the Dáil in May and June 2015 about his banking affairs.

At the time, Mr O’Brien was involved in injunction proceedings against RTÉ, to stop the station from broadcasting banking information.

But the court had heard Dáil statements made by the two TDs had the effect of putting all of the information at issue in the injunction proceedings into the public domain.

“If you are a long standing customer or even a customer for a week with a bank, you are discussing your private business matters… there is nothing more confidential than banking details except maybe medical records,” Mr O’Brien said.

He told the court it would be a “pretty extraordinary situation” if every citizen of the State had their banking details disclosed and their “privacy invaded.”

“I sought a court order against RTE to stop that, for privacy reasons,” he said.

“In this situation, my solicitors sought an injunction, a court order and that was granted. In parallel, two miles away in the houses of the Oireachtas, information that was part of that order was being disclosed,” Mr O’Brien continued.

Asked about the importance of this, Mr O’Brien said it meant “nobody would have any protection… that any court order could be broken by a member of the Oireachtas.”

“It would be a very bad thing, I believe, for a country to have a situation where people could rely on the courts and get an order from the courts, for that to be unravelled by a different section of the country,” Mr O’Brien continued.

He told the court he believed that, in terms of someone looking to invest in Ireland, that would be on a “checklist” and it would be considered a “considerable weakness.”

Mr O’Brien entered Court 29 in the Four Courts at 10.56am, shortly before proceedings before Ms Justice Úna Ní Raifeartaigh began.

Wearing a navy suit with a pale blue shirt and dark blue tie, and holding a red folder he took a seat in the public gallery alongside his communications advisor James Morrissey.

The small courtroom was packed with media, lawyers and members of the public.

Mr O’Brien has not sued the two TDs.

Instead his action is against the Clerk of the Dáil, the State and a Dáil committee which cleared the two TDs of any wrongdoing.

Under cross examination by Michael Collins SC, for the committee, he said he felt that having details of his banking details being ventilated in the Dáil was “wrong”.

“If a person’s banking files were stolen, as they were in this case, and given to a member of the Oireachtas, the Oireachtas should have given them to the guards instead of reading it out in the Oireachtas,” he said.

“I am here today to see if there is a way for this to never happen again, for any citizen.”

Mr O’Brien agreed with Mr Collins that his lawyers had sent a letter of complaint to Deputy Murphy on May 28 that year expressing “deep concern” that she had “knowingly” breached a High Court injunction.

The businessman agreed it was his belief this was a “calculated effort to breach the court order” and to “usurp the court”.

Mr O’Brien said that as a result of the intervention of the TDs, his legal team had to keep going back to the court to alter the terms of the injunction against RTÉ.

“I thought that if you went to the High Court and got an order of the High Court, I thought that could not be unravelled by another arm of the State, in this case the Oireachtas,” he said.

Mr O’Brien added that he thought members of the Oireachtas would have “respected” the order made by Mr Justice Donald Binchy in the RTÉ case.

To his mind the actions of the TDs “was a flagrant breach”.

He said there was Tweeting and debate in the Dáil, which had the effect of unravelling his injunction.

Mr O’Brien said he appreciated his legal action over the TDs’ comments was unique.

“I think we were in new territory. I asked my lawyers if this had happened before and they knew of no similar case,” he said.

Mr O’Brien is the only witness in the case, which began on Tuesday.

Lawyers for Mr O’Brien have previously claimed the TDs were “guilty of an unwarranted interference” in RTÉ case, and had disregarded the constitutional separation of powers between parliament and the courts.

Mr O’Brien is not seeking damages, but wants a declaration his rights were breached.

He also wants declarations that the courts had the exclusive right to determine the outcome of the proceedings with RTÉ, that the “substantial effect” of the TDs’ comments was to decide the outcome of that case, and that their interference was “unwarranted”.

Mr O’Brien also wants the court to declare that the Dáil Committee on Procedures and Privileges made an error when it cleared the TDs of any wrongdoing.

The claims are denied by the defendants, who are expected to begin their defence later today or tomorrow.

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