Thursday 17 January 2019

Denis O'Brien claims no evidence for finding that TD acted 'responsibly' in Dáil statement on banking affairs

Denis O'Brien
Denis O'Brien

Tim Healy

There was "no evidence" on which an Oireachtas Committee could have decided Social Democrats TD Catherine Murphy acted responsibly and in good faith when she made statements in the Dail about Denis O’Brien’s banking affairs, lawyers for the businessman have told the Supreme Court.

Deputy Murphy had put no material before the Dail Committee on Procedure and Privileges (CPP) when it was deciding Mr O’Brien’s complaint about what she said, so there was no basis for the Committee’s finding she acted in good faith and responsibly, Michael Cush SC, for Mr O’Brien, said.

The Committee also erred in how it had dismissed the businessman’s complaint about a statement made by Sinn Fein TD Pearse Doherty, he argued.

Counsel was opening an appeal before the seven judge court against the Oireachtas and State arising from statements made by Deputies Murphy and Doherty respectively in May and June 2015.

The businessman claims the statements, made after he got injunctions against RTE on April 30th 2015 restraining it publishing details of his banking relationship with State-owned IBRC, amounted to "unwarranted interference" in the judicial domain as they revealed most of the information subject of the injunction and made his court action pointless.

When dismissing his case in 2016, the High Court's Ms Justice Una Ni Raifeartaigh said what Mr O'Brien sought was prohibited by the constitutional separation of powers and would have a "chilling effect" on parliamentary speech.

Irrespective of the existence of court proceedings, or how damaging what was said by the TDs, Article 15 of the Constitution confers immunity from legal proceedings both on "utterances" made in the Dail and on the member who makes them, she held.

Article 15 also meant the court could not intervene in relation to how the CPP dismissed Mr O'Brien's complaint over the utterances, she ruled.

The focus of Mr O’Brien’s appeal is on the High Court finding that the courts cannot intervene in the Committee’s finding the TDs had not breached the relevant Dail standing orders or concerning how it addressed Mr O’Brien’s complaint.

His appeal against the High Court order requiring him to pay the defendants’ costs of the case is subject to the outcome of his appeal on the core issues.

In opposing the appeal, the respondents maintain the courts cannot intervene as a result of Article 15.

In arguments today, Mr Cush said the constitutional rights of Mr O’Brien were clearly damaged by what was said by the two TDs and the High Court had erred in finding the courts cannot intervene.

The rights affected included Mr O’Brien’s property rights and right of access to the courts and to have his case against RTE decided without parliamentary interference.

In this case, the end position as a result of the TDs statements was that the script of the RTE journalist which Mr O’Brien had sought to restrain was in fact no longer confidential at all and his legal proceedings were rendered "entirely moot". 

There is at least one rule governing what is said in the Oireachtas that is intended to protect the rights of citizens like Mr O’Brien who are not members of the Houses against unwarranted interference by members of the Oireachtas in court proceedings, counsel said.

This related to matters before the courts and provided that Deputies should try and avoid prejudicial comment as far as possible. They may also give notice to the Ceann Comhairle of certain utterances they intended to make and that the Ceann Comhairle could give guidance in that regard. 

In this case, neither Deputy gave any notice of what they intended to say under the “extraordinary privilege” available to them and the Supreme Court should declare the CPP’s finding was based on an erroneous interpretation of the standing orders.

The "real test" of whether the courts can intervene in a decision by an Oireachtas Committee is whether the disputed decision directly affects persons outside the Houses of the Oireachtas and the High Court applied the wrong test in that regard, he submitted.

The High Court also erred in that it had not properly assessed the issue of "amenability" within the meaning of Article 15. 5, he argued.

This case is a very good example where the courts are required to interpret utterances in the Dail and then examine a ruling where that was not done, counsel said.

There is a distinction between a court hearing evidence about what was said in parliament and its effect and making people "amenable" for what was said. In this case, Mr O’Brien’s complaint was being adjudicated on by the CPP and his interests as a non-member of the Houses were precisely what the relevant standing order sought to protect.

The appeal continues.

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