Monday 21 May 2018

Denis O'Brien legal challenge: Businessman has no right to see CPP investigation into TDs' comments done to his 'satisfaction', High Court told

Businessman, Denis O Brien pictured leaving the Four Courts on Thursday after giving evidence in a High Court action.Pic: Collins Courts
Businessman, Denis O Brien pictured leaving the Four Courts on Thursday after giving evidence in a High Court action.Pic: Collins Courts

Andrew Phelan

Businessman Denis O’Brien has no Constitutional right to achieve “personal satisfaction” by having members of the Dail sanctioned for statements he complained about, the High Court has been told.

A defence lawyer said the investigation into comments by two TDs was entrusted exclusively to the Dail’s Committee for Procedure and Privileges (CPP), and Mr O’Brien had no right to see this was done to his “satisfaction.”

Michael Collins SC, for the CPP, made the argument on the fourth day of Mr O’Brien’s court action against that committee, the Clerk of the Dail and the state, over statements made in the Dail about the businessman's banking affairs.

This afternoon, Mr Collins said it was being argued by the plaintiff that the Dail statements were an infringement on the separation of powers and that they effectively determined the outcome of his interlocutory injunction.

 Michael Cush SC, for Mr O’Brien, then interjected, saying: “Once the information was put into the public domain, it determined the outcome of the entire action. I couldn’t go to trial.”

Mr Collins said the TDs' statements could never be an infringement of the separation of powers.

“The exercise by the deputies of their Constitutionally protected freedom of speech could not be a breach of the separation of powers,” he said.

Mr Collins said that in the “cut and thrust of political life” things were done that “changed the factual mix” that might come before the court for a decision, but that did not in any way interfere with the judicial function or judicial independence.

He then moved on to the role of the CPP and the plaintiff’s argument that there was an entitlement for the court to review its decision.

Referring to a Supreme Court judgement in another case, he said the court could not intervene with the operation of a Dail committee which was operating on its own standing orders.

The committee had not been seeking to question or reprimand Mr O’Brien, whose role had been simply to make a complaint, Mr Collins said.

Whoever made a complaint, the process that was then triggered was an enquiry into members of the House alone.

From then, it was exclusively a matter within the House and exclusively entrusted to the House to deal with under the Constitution.

“Who or what triggered it isn’t the issue,” he said.

“What Constitutional right of (Mr O’Brien’s) was put in peril by the committee? No Constitutional right was put in peril because they were not dealing with him,” Mr Collins said.

“Where is the Constitutional right that he has, to see that an internal Dail committee carrries out an investigation into two of its members to his satisfaction merely because he’s the complainant?” he asked.

Judge Ni Raifeartaigh asked if citizens did not have some right to see fair procedures followed in the Oireachtas.

“There is no Constitutional right to achieve some personal satisfaction… by somebody sanctioning somebody against whom you have a complaint," Mr Collins said.

Earlier today, Mr Collins told the High Court the "walls" set up by the Constitution were there to "repel judicial invaders" from the Dail.

Mr Collins said the court could decide in difficult cases where the boundaries lie but they were "crystal clear" in this case.

Utterances of members of the Dail lay "very deep" in constitutional territory, he said.

"The walls set up by Article 15 (13) (of the Constitution) are not fuzzy or imprecise," he said, adding that they were "there to repel judicial invaders."

He told the court case law was "replete" with statements about the competence of the Dail in dealing with issues that may arise concerning debates within the house.

Mr O'Brien alleges comments in the Dáil by two TDs interfered with a court case he was involved in with RTÉ.

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. The case continues before Ms Justice Una Ni Raifeartaigh.

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