Wednesday 17 October 2018

Injunction granted to IBRC Commission against Sunday Business Post

The High Court, Dublin
The High Court, Dublin

Tim Healy

A COMMISSION set up to investigate transactions involving Irish Banking Resolution Corporation (IBRC) has secured a High Court injunction preventing a newspaper from publishing details of information given to it.

The injunction, made against Post Publications Trading as The Sunday Business Post, was sought over fears that further details published by the paper may undermine the commission's work.

The order is to remain in place until the Commission publishes its report concerning Siteserv.

The sale of Siteserv (now Actavo) to Millington Ltd, a company controlled by businessman Denis O'Brien, for €45.4 million in March 2012 is one of the transactions the commission is looking into.

On Friday, Mr Justice Paul Gilligan said he was satisfied to grant the commission the injunction that restrains the newspaper from publishing any statement, exhibit to any witness statement provided to the Commission.

The Sunday paper is also prohibited from publishing any oral evidence given to the Commission in private session, or any document circulated by the commission under under Section 12 of the 2004 Commissions of Investigation Act.

Paul Gallagher SC, appearing with Barry Lennon Bl , for the Commission said the injunction is to remain in place until the Commission publishes its report about Sitserv, was being made with the consent of the publisher.

Mr Lennon Bl for the commission had earlier informed the court that under provision of 2004  Commissions of Investigations Act the publication of any evidence or information given to the commission is an offence.

Counsel said the newspaper had previously published details of evidence given to the commission, which the commission did not raise any complaints over.

However serious concern had been expressed following the publication of recent articles to the Commission by several witnesses, who fear their confidential personal financial and banking evidence could be disclosed.

The Commission said it was concerned that articles that appeared in July, August and October may have breached the 2004 Act.

The Commission said the article published in October had purported to identify documents related to Siteserv which it must have known were or were likely to be evidence before the Commission.

Mr Lennon said that following the publication of the article in late October the commission sought and received undertakings from the newspaper not to disclose any evidence given to the commission.

On November 3 last, Ian Kehoe, the SBP's editor, gave an undertaking that the paper would not in the future disclose or publish any evidence given to the Commission, except in accordance with the 2004 Act.

Despite this on November 5 the newspaper published a further article on its front page along with a five page supplement concerning the siteserv sale which the Commission also believes may have breached the 2004 Act.

The Commission wrote to the SBP expressing its concern over the material published. However the editor said that he did not believe that the publication had breached the undertakings given, because the material did not come from the Commission or any of its activities.

Counsel said it had hoped that the undertaking given on November 3rd would be sufficient, but that was not the case. In the circumstances it was seeking an injunction against the newspaper.

Counsel said the injunction was being sought over fears that confidential evidence given by witnesses in private had the potential to seriously prejudice person who appear before it and  interfere with and undermine the work of the Commission.

In a sworn statement on behalf of the Commission solicitor Karen Quigley said it did not want to unreasonably infringe on the freedom of the press but the publication of material amounts to a serious breach right to confidentiality.

Given the commission's desire to protect confidentiality it did not wish to state if specific quotations or documents is evidence before the Commission.

The IBRC Commission is the independent body established by the Government to investigate into matters of significant public concern in respect of IBRC the state owned banking entity  formed following the nationalisation and merger of Anglo Irish Bank and Irish Nationwide Building Society.

The Commission is probing certain transactions, activities and management decisions at the IBRC which occurred between January 2009, when IBRC was nationalised and February 2013 when special liquidators were appointed.

High Court Judge Mr. Justice Brian Cregan is the sole member of the Commission and he was appointed to the role in July 2015 by the previous Fine Gael Labour coalition government.

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