Wednesday 13 December 2017

Denis O'Brien has 'no basis' for case against state, defence claim

Businessman Denis O’Brien leaving the Four Courts after giving evidence last week Photo: Collins Courts
Businessman Denis O’Brien leaving the Four Courts after giving evidence last week Photo: Collins Courts

Andrew Phelan

Businessman Denis O’Brien has “no basis” under the Constitution for his case against the state, a defence lawyer has argued.

Maurice Collins SC also told the High Court that Mr O’ Brien thought comments made about his banking arrangements by two TDs in the Dail were a Constitutional “Coup d’Etat”.

Mr Collins SC, who represents the Attorney General and the State, was speaking today in response to Mr O'Brien's continuing case which is also against the Dail Committee on Privileges and Procedure, and the Clerk of The Dail.

Mr Collins said Michael Cush SC, for Mr O’Brien, had conceded earlier that he could not “set up the plaintiff’s personal rights” against Article 15 of the Constitution and “get around” the Article, which covers parliamentary privilege.

“How then is the right of access (to the courts) one that creates a right vis-a-vis the CPP as it discharges its functions (under Article 15)?” Mr Collins said.

He asked, if a TD speaking in the Dail could not be restrained by Mr O’Brien’s right of access to the court, how could the plaintiff rely on the same right to dictate the approach taken by the CPP.

Mr Collins said the only rights Mr O’Brien could assert were his personal rights and if these rights yielded “as they must” to Article 15 of the Constitution, then he was left with “no basis for his claim.”

He said Dáil members were amenable only to the House itself and matters were only delegated to the CPP.

Mr Collins then referred to Mr O’Brien’s injunction application against RTE that had been pending when one of the TDs - Catherine Murphy of the Social Democrats - made her comments.

It would be “entirely illogical” to say that rights that are excluded in relation to utterances in the Dail “suddenly come back to life” as a result of a complaint being made, Mr Collins said.

If the plaintiff’s case was correct and it was only a matter of issuing a writ that did not name individual deputies but named rather the Clerk of the House to overcome Article 15 then “why do we need the pending proceedings at all?” he asked.

Mr Collins said if this was correct then “you can bring proceedings directly against the Oireachtas and you can look in an appropriate case for an injunction,” which may not be as “bullet proof” as one against individual deputies, but would have the effect of restricting parliamentary speech.

“That is what this plaintiff is saying,” Mr Collins argued. That you can do all of these things, and the reliance on pending proceedings is all a puff of smoke, a red herring… you can do this without ever having gone to court.”

Referring to a point from case law, Mr Collins said it was a “tribute to Mr O’Brien’s self-regard” that he thinks statements made by two TDs which offended him and which he thinks disclosed his private banking information is “the Constitutional equivalent of a coup d’Etat.”

The action arises out of statements by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty in the Dáil in May and June 2015 about his banking affairs.

At the time, Mr O’Brien was involved in injunction proceedings against RTÉ, to stop the station from broadcasting banking information.

But the court had heard Dáil statements made by the two TDs had the effect of putting all of the information at issue in the injunction proceedings into the public domain.

Lawyers for Mr O’Brien have claimed the TDs were  “guilty of an unwarranted interference” in the RTÉ case, and had disregarded the constitutional separation of powers between parliament and the courts.

Mr O’Brien has not sued the two TDs.

Instead his action is against the Clerk of the Dáil, the State and a Dáil committee which cleared the two TDs of any wrongdoing.

He is not seeking damages, but wants a declaration his rights were breached.

He also wants declarations that the courts had the exclusive right to determine the outcome of the proceedings with RTÉ, that the “substantial effect” of the TDs’ comments was to decide the outcome of that case, and that their interference was “unwarranted”.

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

The claims are denied by the defendants.

Responding to the defence this afternoon, Eileen Barrington SC for Mr O’Brien said the case was about Constitutional balance.

“This is a case that is about equilibrium - the equilibrium provided in the Constitution, and the case law envisages the role of the court in maintaining and achieving that equilibrium,” she said.

The defence’s position does not give sufficient recognition to the role of the courts in giving effect to that equilibrium, or the counterweight Article 34 of the Constitution, covering the power of the courts, gives to Article 15 (13), she argued.

“In doing that they are skewing the balance and not giving the court the full perspective that is required,” she said.

Ms Barrington said she found it difficult to see how there had not been in effect a determination of Mr O’Brien’s original case arising from the utterances of the TDs.

It had been argued by the defendants that there could never be a determination of proceedings by the exercise of free speech in the Dail, Ms Barrington said.

She contended that from the perspective of the litigant, there was no material difference between a piece of legislation “that says Mr O’Brien is not entitled” to confidentiality of his banking affairs and the disclosure of this information.

“It has the exact same effect,” she said.

Addressing the issue of the separation of powers, Ms Justice Ni Raifeartaigh asked Ms Barrington what gave her the standing to rely on this “if you are not relying on personal access to the courts?”

“The two are somewhat merged together,” Ms Barrington said. “If we have a right that is allied to or flows from a Constitutional imperative, we can say that Constitutional imperative has been breached. It would be wrong to think that the two are hermetically sealed off from each other.”

Ms Barrington turned to the question of whether Article 15 (13) of the Constitution (covering parliamentary privilege) is “engaged at all.”

She said it was accepted that the Article conferred an important privilege which was described as an “ouster of jurisdiction”.

What was also true, she continued, was that every statement about this point in case law was accompanied by a statement that it “must be narrowly construed.”

“It is a fundamental factor in our arguments because the defendants are arguing for the broadest possible interpretation,” she said.

It was argued by the defence to be something that not only “prevents you looking at what happens in parliament” but also captures the work of the CPP as well, Ms Barrington said.

The case continues tomorrow.

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