Thursday 8 December 2016

High Court to rule Friday on Denis O'Brien banking detail injunction

Published 10/06/2015 | 11:38

Denis O'Brien
Denis O'Brien

The High Court will rule on Friday on RTE's application to fully discharge an injunction restraining publication of certain information relating to the banking relationship between Denis O'Brien and State owned IBRC.

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RTE's counsel David Holland SC urged Mr Justice Donald Binchy not to permit the businessman to maintain a "sword of Damocles" over the media by leaving in place the  injunction granted last month.

Recent Dail disclosures about the banking relationship between Mr O'Brien and IBRC means the injunction restraining RTE and other media publishing certain material is pointless and should be discharged, Mr Holland said.

RTE has behaved in an exemplary fashion concerning this matter and will continue to honour its general obligations in law, he said. However, RTE should not be "kept under the cosh" as there was no reason to do so and it had done nothing wrong, he added.

Mr O'Brien is not entitled to more than anyone else, no other citizen had sought such an injunction relating to their banking affairs and there was no reason to believe RTE intended to do wrong by Mr O'Brien, he said.

Lawyers for Mr O'Brien opposed the discharging of the order in its entirety but Michael Cush SC, for Mr O'Brien, said their position is they are not seeking continuation of the order in relation to information that has come into the public domain.

RTE was seeking to have the injunction discharged without undertakings and the court's order covered not just an intended RTE report but information relating to Mr O'Brien's banking affairs.

RTE had made clear it had other information but has failed to identify what that is, he said. The fact events have overtaken the order such that the original report could be published did not mean the order should not continue so as to catch other information, he said.

There was clearly a lot of information out there regarding Mr O'Brien's personal banking affairs, counsel said. Other citizens apart from Mr O'Brien had sought to protect the confidentiality of their banking affairs.

This application was "too clever by half" and the full discharge of the order was not warranted although his side accepted the order should be varied, he added.

Andrew Fitzpatrick BL, for IBRC, said its position is that legal advice relating to its banker/customer relationship with Mr O'Brien cannot and should not be published.

IBRC is a regulated bank with a duty of confidentiality to customers and with obligations under the Data Protection Acts, he said.

In exchanges with the judge, Mr Fitzpatrick said the law was that any communication between a lawyer and client for the purpose of getting legal advice is absolutely privileged. A part of such communication cannot be published, the law is very clear in that regard, he said.

The proceedings by Mr O'Brien against RTE were briefly adjourned this morning to allow Mr Holland take further instructions about how the station wishes to proceed inlight of the positions adopted by Mr O'Brien and IBRC.

When the matter resumed, Mr Holand said he was seeking the discharge of all injunctions. RTE will comply with its obligations at general law as reflected in the judge's ruling granting the injunction, he said.

There was no purpose served by the coercive force of an injunction which would chill the operation of the media, he said.

Mr O'Brien is seeking to maintain a sword of Damocles over RTE and the entire media which no oher citizen has, counsel said. The question was not what were the substantial legal restrictions on publcation relatig to Mr O'Brien's banking affairs but whether there was any justification for buttressing those obligations with a coercive injunction.

Last night's Dail utterances by Sinn Fein's Pearse Doherty only reinforced RTE's arguments continuing the injunction is pointless, counsel said. Mr Doherty's speech had also been published on the Sinn Fein website, he added.

Just because legal professional privilege is absolute and very important did not mean the court should injunct "every last scintilla" of legal advice, counsel argued.

Mr Justice Binchy said he was unaware of any case where the courts had permitted legal professional privilege to be intruded upon unless the client themselves waived the privilege. In this case, IBRC was the client and was not prepared to waive the privilege, he said.

Mr Holland said he was not disputing the law on legal privilege but was arguing the word "absolute" should not mislead the court to believe that always trumps the right to freedom of expression.

The court must analyse the position in the context of that right and the facts in this case are that so much of the information is already in the public domain there was no point maintaining the order relating to legal privilege. If the court disagreed with him on that, he wanted an adjournment so as to produce documents arising from Mr Doherty's Dail speech.

Mr Justice Binchy said the fact something is published once does not mean there should be no restraint. Repeated publication can make a piece of information much stronger, he observed.

Last week, the judge issued his written judgment giving his reasons for granting the injunction to Mr O'Brien and IBRC restraining RTÉ broadcasting details of Mr O'Brien's financial arrangements with the bank pending the outcome of the full legal proceedings between the sides.

The judge said he granted the injunction on grounds including no substantive evidence of "a failure of corporate governance" at the bank has been established. While RTE had made no allegations of wrongdoing against the businessman, it had raised issues concerning transactions involving the bank which are alleged to have been poorly executed by the bank, he said.  No evidence of a substantive nature was presented to the court that would allow it conclude there had been a failure of corporate governance, he said.

He found both IBRC and Mr O'Brien, based on the evidence before him, had established a convincing case they would succeed at a full hearing of the matter. He also accepted damages would not be an adequate remedy for Mr O'Brien, who claimed his losses if details were broadcast would be "incalculable"

After the injunction was granted, RTE and the Irish Times sought clarification whether they could publish details of the speech made by Independent TD Catherine Murphy in the Dail concerning the businessman's arrangements with IBRC. Mr O'Brien disputes the accuracy of Deputy Murphy's comments. The judge said it was never intended the injunction could prevent the fair reporting of comments made in the Dail.

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