Saturday 10 December 2016

O’Brien claims Dáil comments determined the outcome of court case

Shane Phelan and Andrew Phelan

Published 29/11/2016 | 12:27

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

Lawyers for businessman Denis O’Brien have claimed the separation of powers between the Oireachtas and the courts was breached when a TD disclosed details of his banking arrangements in the Dáil.

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The allegation was made as Mr O’Brien began a High Court action against a Dáil committee and the state, claiming what was said in the Dáil determined the outcome of a case in which he was the plaintiff.

Opening the case, Michael Cush SC, for Mr O’Brien, said the businessman had gone to the High Court in May 2015 seeking orders restricting RTÉ from publishing certain confidential information relating to banking arrangements with the Irish Bank Resolution Corporation.

However, while that case was still ongoing, Social Democrats TD Catherine Murphy made a number of comments in the Dáil.

Mr Cush said that as a result of these, Mr O’Brien had been forced to accept that matters subject to the injunction proceedings were by now in the public domain.

He said his client was now seeking a declaratory relief from the High Court that comments by Ms Murphy and later ones by Sinn Féin TD Pearse Doherty breached the separation of powers.

Mr Cush said Mr O’Brien had made complaints about the conduct of the TDs to the Dáil Committee on Procedure and Privileges (CPP), but it found neither had breached the standing orders governing debate in the Dáil.

Mr O’Brien believes the committee “erroneously interpreted” the provisions of Dáil Standing Order 57 (2011), which governed what TDs could and could not say about ongoing court cases.

The standing order says a matter should not be raised “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 telecoms and media tycoon’s case is against the committee, the clerk of the Dáil and the State and is expected to last seven days.

Ms Justice Úna Ní Raifeartaigh was told there would only be one witness, Mr O’Brien himself, who will give evidence on Thursday.

Mr Cush said Mr O’Brien’s testimony would be short.

The barrister said the case was unique in the history of the State as it involved an intervention in the Dáil determining the outcome of a court case.

It was a case he said where both sides would be relying on Article 15 of the Constitution to support their respective contentions.

That article states that TDs and senators “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”.

Mr Cush said the application for an injunction against RTÉ had received widespread publicity and it could be “inferred” Ms Murphy knew about it when she spoke in the Dáil on a debate about the purchase of services company Siteserv by a Denis O’Brien-owned company Millington.

The barrister read a transcript of the debate, on May 7, 2015, into the court record.

He quoted Ms Murphy as saying Mr O’Brien, as the ultimate buyer of Siteserv, was one of the largest debtors of IBRC.

“His loans had expired and he had apparently written to Kieran Wallace in his role as special liquidator seeking the same terms IBRC had allowed him, which was to pay off his loans in his own time at low interest rates,” the TD had told the Dáil.

“When a loan expires, one expects a penalty to be put onto it, not a discount. My understanding is that it was costing IBRC 7pc for its money, significantly higher than the 1pc Nama was borrowing at. Even if Denis O’Brien’s loans were eventually paid off in full, the interest rate represented a subsidy.”

Mr Cush said the comments were “confidential information of the type he (Mr O’Brien) was trying to protect in his application before the court”.

He said Mr O’Brien subsequent had to “face up” to the fact that he could not argue to the court that this information could be kept in confidence as it was in the public domain.

Around two weeks after Ms Murphy’s comments, Mr O’Brien wrote to the Ceann Comhairle, complaining privilege had been abused.

Reading from Mr O’Brien’s letter of complaint to the Dail committee, Mr Cush said Mr O’Brien referred to his “private confidential banking affairs” and information which had been “improperly obtained.”

Mr Cush said the injunction was granted on May 21 last year and read from statements from RTE on the “case it was making” in response.

He said RTE was invoking the public interest, saying that the judge, Mr Justice Donald Binchy, had to balance the private right to confidentiality with the public interest in the freedom of expression.

Mr Cush said Judge Binchy had balanced these rights during a four-day hearing and came down in favour of the plaintiff (Mr O’Brien.)

Mr Cush then read from an affidavit made by David Murphy, RTE’s business editor.

Mr Murphy had said he was working on a news report in relation to the repayment of loans to IBRC. An exhibit was a script of the report he proposed to broadcast.

Mr Murphy in his affidavit referred to Mr O’Brien’s role in public life for many years.

“Mr Murphy is emphasising all the time the public interest in being allowed to broadcast,” Mr Cush told the court. “There is a reference to the common good - all part of the same theme from RTE.”

The affidavit concluded with Mt Murphy asserting that the public had an interest in knowing about Mr O’Brien’s relationship with IBRC.

Mr Cush brought Judge Ni Raifeartaigh’s attention to an affidavit by IBRC, which had also sought an injunction.

Hr Cush said a test for the granting of an interlocutory injunction was in relation to freedom of expression.

The test was “to bring about a convincing case for the curtailment of the freedom of expression.”

Judge Binchy had concluded that the plaintiffs “have established a convincing case that they will succeed at the full trial of a case in this matter,” Mr Cush continued.

An order was made and there was no appeal to this “highly considered judgement.”

“It is easy to say I simply don’t agree with that, you are entitled to hold those views or to criticise the judge,” Mr Cush said.

“You are entitled to do that and there is no doubt that the deputies would have been entirely within their rights to go into the Dail and criticise that. But that is not what they did. They undid it and that is the trespass on the judicial domain.”

Mr Cush turned to statements by Catherine Murphy TD.

She had tweeted about an upcoming hearing which showed her “attention to the case,” Mr Cush said.

She had tweeted: “Catherine Murphy expresses dismay at the extent of High Court injunction,” going on to say that she was “alarmed at the all-encompassing nature of the injunction” and that there were “very serious implications … for the freedom of the press.”

“I say this is highly significant in that it demonstrates Deputy Murphy was fully aware of the injunction and its terms and that those terms were broad,” Mr Cush said.

He said this was a factor in the “clear disregard” test which the court had to consider. Under this test, Deputy Murphy was “fully aware” of the order and was “at least reckless” in relation to breaching the order, Mr Cush said.

Her statement also possibly spoke to her motive, stating she was “dismayed” at the court order, Mr Cush said.

“Her very first concern is that it has serious implications for the freedom of the press, she is not expressing concerns for the legislative process,” Mr Cush said.

When the complaint was made to the CPP, the committee found Deputy Murphy had acted in good faith.

When Deputy Murphy spoke in the Dail, she referred to IBRC allowing the extension of the terms of a loan to Mr O’Brien and the interest rate that applied.

She also indicated that she knew the liquidator had joined with Mr O’Brien to seek an injunction preventing this information from coming into the public domain.

That day, Mr Cush said, Deputy Murphy tweeted a “statement re Dail proceedings.”

She uploaded a video of her statements to the Dail to YouTube and tweeted excerpts of the speech.”

The injunction had already been granted, Mr Cush said.

In her tweets, she detailed the confidential information she had revealed in the Dail, Mr Cush said. This was “consistent with her press statements” issued after the granting of the injunction.

“Here she is, ensuring that this got out as fast and as wide as possible,” Mr Cush told the court.

Subsequent to Ms Murphy’s comments, letters of complaint were sent by Willian Fry solicitors on behalf of Mr O’Brien to the then Ceann Comhairle Sean Barrett on May 28 and 29, 2015.

The letters claimed Ms Murphy had deliberately used parliamentary privilege to frustrate a court order restricting publication of the banking information and to usurp the role of the court.

The correspondence asked the Ceann Comhairle to take steps to stop Ms Murphy from abusing privilege again.

It said her comments were “defamatory and prima facie an abuse of Dáil privilege”.

Mr Cush said that on May 21, Ms Murphy had released a statement acknowledging the court order, but had gone on to make further remarks.

He said one of the letters of complaint said Ms Murphy had put her own regard for what was in the public interest above the determination of a court.

She had acted “in total and reckless disregard for (Mr O’Brien) and the judiciary of the State”, the letter said.

The correspondence was acknowledged by the Ceann Comhairle and the CPP met on June 10th to consider the complaints.

The CPP ultimately determined Ms Murphy had not breached standing orders 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”.

In relation to Mr O’Brien’s claim that her comments breached the terms of a High Court injunction, the CPP said any such finding was exclusively a matter for the courts.

Mr Cush told the court that on June 9, the day before the CPP met, Sinn Féin TD Pearse Doherty made claims in the Dáil about Mr O’Brien’s banking arrangements.

As a result the entirety of the matters Mr O’Brien had sought to injunct RTÉ from broadcasting were now in the public domain.

Mr Cush read Mr Doherty’s comments into the court record.

He quoted Mr Doherty as saying he had received a series of documents, which he would be making available to the Taoiseach with a request that he pass them on to a judge who was to be appointed to conduct a commission of investigation into various deals involving IBRC, including the Siteserv transaction.

Mr Doherty said the documents showed that in 2012, Mr. Denis O'Brien had an agreement with IBRC whereby the bank would receive 92.02pc of all Digicel dividends in excess of $50m as part of a loan repayment agreement.

He said that in the same year, Digicel made a once off dividend distribution of $300m. IBRC received a scheduled payment of €150m, which equated to 65pc of the dividend distribution.

“The balance was then used by Mr. O'Brien to pay down a Bank of Ireland facility which had been used to fund the Siteserv deal. This step was approved by the IBRC's group credit committee,” Mr Doherty was quoted as saying.

“In other words, we know that IBRC sold Siteserv to Denis O'Brien and Mr O'Brien had major loans with IBRC and, it seems, the terms of a loan agreement with IBRC were used to pay down the loan he received from Bank of Ireland to purchase Siteserv in the first instance.”

Mr Doherty went on to say other documents led him to question the way IBRC was being run in the public interest.

He said IBRC had extended a €315m loan to Mr O’Brien in November 2013, a proposal which had been rejected by its credit committee a few months earlier.

Mr Doherty said this was the same as creating a new loan and questioned how a bank in liquidation could make such a decision.

Mr Cush read from the CPP’s reply to Mr O’Brien’s letter through his solicitors to the Ceann Comhairle in which he asked what steps were being taken to ensure that no deputies could abuse parliamentary privilege.

In its reply, the Committee stated that utterances made in either house were privileged and not amenable to the courts.

However, the letter continued, standing orders were there to ensure utterances were not defamatory.

Having reviewed the matter and having taken advice, the committee found that Ms Murphy did not make any utterance that was defamatory and did not abuse Dail privilege.

The committee concluded that her contributions were justifiable by freedom of speech, she did not breach the sub judice rule and she made her contributions from the floor and “in good faith and as part of the legislative process.”

Another letter from Mr O’Brien’s solicitors, on June 15 last year, stated that they were “very surprised to learn” via an Irish Times article that the committee had rejected the claim that Ms Murphy had abused Dail privilege.

Mr O'Brien's solicitors wrote that further comments were made by Pearse Doherty TD in the Dail and as a result Mr O’Brien was forced to concede (the RTE script).

His solicitors stated that his case had not just been prejudiced but had been “determined” by utterances in the Dail.

On July 30, Mr Cush continued,  the committee wrote in relation to Mr Doherty’s Dail contributions.

Having reviewed these contributions the committee concluded that they “remained at all times pertinent to the matter at hand” and that “the deputy was exercising his Constitutional freedom of speech.”

The committee stated the contributions fell outside of the scope of the relevant standing order and did not contravene it, Mr Cush said.

He then referred to Section 15 (13) of the Constitution, which he said was central to the case.

Mr Cush said he was not endeavouring to make any member (of the Oireachtas) amenable to the court.

“We haven’t sued them, they are not parties to these proceedings,” he said.

Mr Cush then read from other legal cases, asking Judge Ni Raifeartaigh to consider not the form of each “intervention” in the cases referred to but “the substantive effect of what was done.”

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