Monday 19 February 2018

Judge strikes out Denis O'Brien's discovery application against Dail committee

Businessman Denis O'Brien
Businessman Denis O'Brien

Tim Healy

AN application by businessman Denis O'Brien for orders aimed at compelling a Dail Committee hand over to him minutes of two of its meetings last summer, plus other documents, has been struck out at the High Court.

The meetings concern decisions by the Committee on Procedures and Privileges (CPP) that Social Democrats TD Catherine Murphy and Sinn Fein TD Pearse Doherty had not breached standing orders governing debates in the Oireachtas in their remarks concerning Mr O'Brien's banking affairs with State-owned Irish Bank Resolution Corporation.

The application for discovery of documents was brought in preparation for Mr O'Brien's action against the CPP and State over those speeches. A hearing date for that action has yet to be fixed.

In his proceedings initiated last June, Mr O'Brien claims there is a "clear public interest" in the courts determining whether Dail utterances by eputies Murphy and Doherty in May and June 2015 effectively determined his legal action against RTE aimed at restraining publication of details of those banking affairs.

He claims the defendants permitted the utterances be made in breach of his right to fair procedures and rights of privacy and access to the courts and in breach of standing orders regulating debate in the Oireachtas.

This amounted to "unwarranted interference" by the Oireachtas with the operation of the courts "in a purely judicial domain", it is alleged.

The claims are denied.

When Mr O'Brien's discovery application came before Mr Justice Seamus Noonan Tuesday (Feb 9), he was told by Michael Cush SC, for Mr O'Brien, it could be struck out, with costs "in the cause", meaning the costs of the application depend on the eventual outcome of the case.

Sara Moorhead SC, for the defendants, previously indicated they would not voluntarily hand over the documents and would oppose any application aimed at compelling them discover the documents as there were "significant issues" involved.

In his discovery application, Mr O'Brien sought minutes of two meetings of the CPP held on June 10 and July 1, 2015, any documents put before those meetings or circulated to CPP members in advance of those meetings; and any draft minutes or other records by the Clerk of the CPP of those meetings.

Also on Tuesday, after Mr Cush and Ms Moorhead indicated they hoped to reach agreement on a time line for exchange of pleadings, the judge adjourned a motion for further directions in the case for two weeks.

In his action, Mr O'Brien complains utterances by Deputy Murphy on May 6, May 27 and May 28, and by Deputy Doherty on June 9, forced him to concede in the High Court on June 10 that the entire script which he earlier sought to prevent RTE publishing, and which he had successfully injuncted,  was by then in the public domain.

His lawyers formally complained to the Ceann Comhairle and Deputy Ceann Comhairle about both Deputies' actions and were informed,on June 15, the CPP had found Deputy Murphy had not breached standing orders as her utterances were made "on the floor of the House in a responsible manner, in good faith and as part of the legislative process".

In addressing Mr O'Brien's claims the utterances breached the terms of a High Court injunction, the CPP said any such finding was exclusively a matter for the courts.

On July 3, the lawyers were told the CPP had concluded Deputy Doherty's "exercise of his constitutional freedom of speech" in the  Dail fell outside the scope of, and did not contravene, the standing  order regulating debate in the House.

Mr O'Brien alleges, as far as he is aware,  the CPP received no submissions from either TD about his complaints before making its findings and, if it had, he was given no opportunity to respond to such submissions in breach of his right to fair procedures.

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