Tuesday 28 March 2017

Dáil failed to 'police' TDs who made claims about O’Brien banking arrangements, court hears

Media tycoon Denis O’Brien. Photo: Bloomberg
Media tycoon Denis O’Brien. Photo: Bloomberg

Shane Phelan and Andrew Phelan

Lawyers for Denis O’Brien say the Dáil failed to stop two TDs who made statements outlining private banking arrangements the businessman had with the Irish Bank Resolution Corporation (IBRC).

Michael Cush SC, for Mr O’Brien, said statements by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty interfered with a court case the telecoms and media tycoon was involved in with RTÉ.

On the second day of Mr O’Brien’s action against a Dáil committee, the clerk of the Dáil and the State, Mr Cush said the Dáil had a responsibility “to police” TDs in statements they make in regard to ongoing court cases.

“If it had properly enforced Standing Order 57, presumably this wouldn’t have happened,” he said.

The standing order, or Dáil rule, referred to by Mr Cush states that matters should not be raised by TDs “in such an overt manner so that it appears to be an attempt by the Dáil to encroach on the functions of the courts”.

The case centres on comments made by the two TDs in the Dáil in May and June 2015 regarding the controversial purchase by Millington, a company owned by Mr O’Brien, of services firm Siteserv, as well as alleged banking arrangements the businessman had with IBRC.

RTÉ had been seeking to broadcast details of those banking arrangements, but Mr O’Brien secured a High Court injunction blocking this.

However, the statements made by the two TDs had the effect of putting the material RTÉ had into the public domain.

Mr O’Brien is seeking a declaration from the High Court that the Constitution vested in the courts the exclusive right to determine the outcome of the proceedings with RTÉ.

He has also sought a declaration that the “substantial effect” of the comments by the two TDs was to decide the outcome of that case, and that they were guilty of “an unwarranted interference with the operation of the courts in a purely judicial domain”.

A further declaration is sought that the actions of the TDs breached his Constitutional rights.

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

Mr Cush said it was a constitutional imperative that “justiciable controversies” are determined by the courts and no one else.

He said the sole and exclusive right of making law rested with the Oireachtas, but it was for the courts and not the legislature to determine the proper boundary of legislative power.

“The House and the deputies have a constitutional obligation to have respect and refrain from trespassing on the judicial domain,” he said.

He said it was a matter of probability that Ms Murphy was aware Mr O’Brien was pursuing an injunction when she made comments about his banking arrangements in the Dáil on May 6, 2015.

Mr Cush said she was aware of the injunction proceedings “as a matter of certainty” later that month when she made further remarks on Twitter and in a statement.

“She admitted the injunction captured information she had put into the public domain,” he said.

Mr Cush said that the following month, Ms Murphy had described herself as “having rattled a few cages” and that she did not regret making her statements.

Her principle concern was the freedom of the press the freedom of publication, which was exactly what the court was deciding upon, said Mr Cush.

In relation to a speech in the Dáil by Mr Doherty on June 9 that year, which was “highly detailed”, Mr Cush said the Sinn Féin TD “could not but have been aware of the injunction”.

“He did it consciously and must have known the impact he would have on the proceedings and he did that deliberately,” said Mr Cush.

Mr Cush asked the judge to imagine a (hypothetical) public health controversy involving “some new, contagious, fatal disease,” which a number of individuals had contracted.

He asked the court to imagine that the HSE had decided that it was in the public interest to identify the individuals, but one of them went to court and sought an injunction.

“Imagine if the court came down in favour of the individual but meanwhile in the Dail, the same debate of public interest is raging… imagine the HSE leaked the identities to deputies who, in the course of the debate identified the individuals in a number of utterances and rendered redundant the injunction and trial,” Mr Cush said.

He argued there was “no meaningful difference in that scenario and the facts of this case."

As the case continued this afternoon, he opened case law to the court and made submissions on the meaning of “amenability” in Irish law.

He was referring to Article 15 of the Constitution, on which both sides will be relying in the case.

He then turned to the committee’s response to the two letters of complaint sent by Mr O’Brien’s solicitors on May 28 and 29 last year.

He told the judge no attempt had been made by the committee to seek any submissions from either TD.

“They didn’t seek submissions from either deputy and didn’t have the RTE material when they made their decision,” Mr Cush said.

He argued that the committee made an erroneous decision without any evidence to support some of their findings.

“All they had were our letters of complaint and the transcript of the utterances in the Dail,” he said.

Mr Cush said the substance of the complaint was set out in Mr O’Brien’s lawyers’ letters - that in their view what had happened was a “gross abuse of Dail privilege” and was designed to “usurp the role of the courts.”

The second complaint letter stated that Ms Murphy had disregarded the terms of the court order when she disclosed confidential matters “under the guise of freedom of speech” and that this was “a manifest abuse of Dail privilege.”

There seemed to be a “concentration in the response of the committee” on Standing Order 57 alone, Mr Cush said.

In two separate decisions, the CPP rejected complaints made by Mr O’Brien.

In relation to Ms Murphy, it found that she had not said anything defamatory about Mr O’Brien and therefore did not abuse Dáil privilege.

It said Ms Murphy had engaged in a justifiable expression of free speech.

The committee said she had not breached Standing Order 57 “as her utterances were made on the floor of the House, in a responsible manner, in good faith and as part of the legislative process”.

Mr Cush said he took issue with the conclusion Ms Murphy had behaved responsibly and in good faith.

He said the CPP had conducted no analysis of what happened in the court proceedings with RTÉ and how Ms Murphy’s comments had affected those proceedings.

The barrister also said the committee had not asked her, or Mr Doherty, to respond to the complaints made about them.

“If you don’t ask the deputies to respond to the complaint you made, how could you possibly find they had acted in good faith,” Mr Cush said.

He said Ms Murphy wasn’t asked if she knew the injunction application was pending when she addressed the Dáil on May 6.

“Why was it not possible to contribute to a debate on a matter of public interest without interfering in the outcome of a court case,” he asked.

In relation to Mr Doherty, Mr Cush said the substance of the complaint against the Sinn Féin TD was the same as with Ms Murphy, but the response from the committee was “quite different”.

He said the CPP found Mr Doherty’s contribution on June 9 “was at all times pertinent to the matters in hand” in a debate “on a matter of public interest”.

It went on to say that Mr Doherty had exercised his constitutional right to free speech and did not contravene Standing Order 57.

The committee also said it rejected the assertion Mr Doherty had intervened in Mr O’Brien’s legal proceedings.

Mr Cush said his client did not accept these findings.

He said that “as a matter of law” the interventions left Mr O’Brien with “no choice” as the material he had sought to injunct was now in the public domain.

Much of the proceedings today have involved case law being brought to the attention of Ms Justice Úna Ní Raifeartaigh.

She observed that Mr O’Brien’s case was not grounded on personal rights, but on the separation of powers and the role of the judiciary.

Mr O’Brien is due to give evidence in the case on Thursday.

The defendants in the case are disputing Mr O’Brien’s allegations and are expected to begin their defence on Thursday afternoon or on Friday.

The case is expected to last six or seven days in total.

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