The High Court will rule on RTÉ's application to discharge an injunction restraining a broadcast relating to the confidential relationship between businessman Denis O'Brien and Irish Bank Resolution Corporation (IBRC).
RTÉ's counsel David Holland yesterday urged Mr Justice Donald Binchy not to permit Mr O'Brien to maintain a "sword of Damocles" over the media by leaving in place the injunction granted last month.
Recent Dáil disclosures about the banking relationship between Mr O'Brien and IBRC means the injunction is pointless, he said.
RTÉ has behaved in an exemplary fashion concerning this matter and will continue to honour its "general obligations in law" but should not be "kept under the cosh" as there was no reason to do so and it had done nothing wrong, he added.
This week's Dáil statements by Sinn Féin's Pearse Doherty only reinforced RTÉ's arguments that continuing the injunction is pointless, counsel said.
Just because legal professional privilege is absolute and very important did not mean the court should injunct "every last scintilla" of legal advice, counsel also argued.
In exchanges with counsel, Mr Justice Binchy said he was unaware of any case where the courts permitted legal professional privilege to be intruded upon unless the client themselves waived the privilege. In this case, IBRC was the client and was not prepared to waive the privilege, he said.
Michael Cush, counsel for Mr O'Brien, said his side opposed the discharging of the order in its entirety but were not seeking continuation of the order in relation to information that has come into the public domain.
Their concern was that RTÉ was seeking to have the injunction discharged without undertakings, he said.
The court's order covered not just an intended RTÉ report but also information relating to Mr O'Brien's banking affairs, he said. RTÉ had made clear it had other information but has failed to identify what that was.
The fact events have overtaken the order such that the original planned RTÉ report could be published did not mean the order should not continue so as to catch other information, counsel argued.
There was clearly a lot of information out there regarding Mr O'Brien's personal banking affairs and other citizens apart from Mr O'Brien had also sought to protect the confidentiality of their banking affairs, he said.
RTÉ's application was "too clever by half", Mr Cush told the court.