Wednesday 7 December 2016

Judge orders public cross-examination of O'Donnell children about dealings with Gorse Hill contents

Tim Healy

Published 01/12/2015 | 17:55

Blaise and Blake O'Donnell
Blaise and Blake O'Donnell

A JUDGE has directed the public cross-examination in court of the four adult children of retired solicitor Brian O’Donnell about their dealings with the contents of their family home at Gorse Hill, Killiney.

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The four - Alexandra, Blake, Blaise and Bruce - oppose any such examination by the trustee administering their parents' bankruptcy, the official assignee.

They said the matter should be dealt with in written documents and an oral examination was a waste of court time and resources. They also argued, if any such oral examination is permitted, it should be held in private.

The four, who contend some of the contents at issue are gifts,  have appealed a previous High Court order directing their examination.

They want a stay on the examination from the Court of Appeal.

Lawyers for the official assignee, Chris Lehane, opposed any stay.

He said that pending the hearing of the stay application at the Court of Appeal later this month, the appeal court sought clarification from the High Court whether it considered the examination, if it was permitted proceed, should be in public.

Having considered written submissions from Blake O'Donnell, for the four, and Edward Farrelly BL, for Mr Lehane, on the public/private point, Ms Justice Caroline Costello ruled the examination should be in public.

She also made directions for disclosure of documents concerning ownership of the contents of Gorse Hill.

An interim stay on the examination of the four applies pending the outcome of the appeal court's decision on the full stay application.

Ms Justice Costello previously ruled an oral examination of the four would be far less time consuming and more likely to achieve the aim of securing information about the assets.

She had put back the issue of public versus private examination to Tuesday.

She said the Bankruptcy Act provides the court can direct part of a hearing can be in private but there was no guidance how that discretion be exercised.

There was also the constitutional and European Convention imperative that justice be administered in public save in exceptional circumstances.

In this case, the O'Donnells argued their rights to privacy must also be upheld in accordance with the Convention.

It was clear the court has a discretion and it must balance the rights of the parties with the constitutional imperative that justice be done in public, she said.

It was also necessary the official assignee should be able to carry out his functions in an orderly fashion, she said.

No reason was advanced by the O'Donnells for a private examination other than their right to privacy, she said.

If they were correct, that would mean all such examinations would be in private and that was not what the Oireachtas intended.

There was no evidence to establish the facts and circumstances for a private examination in this case, she ruled.

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