Saturday 20 January 2018

O'Brien loses case over disclosure of banking details as judge finds courts cannot intervene

Denis O’Brien lost his case but said he was heartened by the court’s view that a review is warranted into parliamentary privilege. Photo: Bloomberg
Denis O’Brien lost his case but said he was heartened by the court’s view that a review is warranted into parliamentary privilege. Photo: Bloomberg

Tim Healy and Shane Phelan

Businessman Denis O'Brien has lost his High Court action over statements made by two TDs in the Dáil about his banking affairs.

Ms Justice Úna Ní Raifeartaigh dismissed the telecoms and media tycoon's action against the Clerk of the Dáil and the State after finding the Constitution prohibits the courts from intervening over speeches made in the Oireachtas.

In his action, Mr O'Brien alleged Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty "clearly disregarded" the constitutional separation of powers between parliament and the courts when they made statements about his banking affairs in the Dáil in May and June 2015.

The statements were made at a time when Mr O'Brien was engaged in ongoing High Court proceedings against RTÉ seeking to restrain it from publishing details of his banking relationship with the Irish Bank Resolution Corporation.

Mr O'Brien alleged their intervention amounted to "unwarranted interference" in the judicial domain. He also argued the Dáil Committee on Procedure and Privileges, which rejected his complaints about the conduct of the politicians, failed to "properly police" the TDs.Mr O'Brien asked the court to censure both TDs and lay down a line beyond which deputies cannot pass.

But the respondents successfully argued the court could not intervene as Article 15.13 of the Constitution means members of the Oireachtas are not amenable to any authority other than the Oireachtas for "utterances" in the Dáil or Seanad.

They insisted this conferred an absolute immunity over what is said in the Oireachtas.

In her judgment, Ms Justice Ní Raifeartaigh said the case raised important issues.

The court was being asked to examine parliamentary utterances in a manner that would have "a chilling effect on speech more generally", she said. The court "should not be involved in doing anything of that kind".

What Mr O'Brien was seeking would have "very far-reaching" effects, she said. The courts "simply do not have a role in policing parliamentary utterances" except perhaps in grave exceptional circumstances of which this case was not one.

The judgment stated that the case may throw a light on the need for a general examination of this area by a committee.

Ms Justice Ní Raifeartaigh said such a review could consider issues such as whether and when a Dáil deputy may discuss matters which are before the courts, and, in particular, reveal matters that are the subject of an injunction.

The judge said her eyes were open to the fact that the utterances rendered Mr O'Brien's proceedings against RTÉ entirely moot, that damage was undoubtedly done to him and that the release of the banking information was done in a deliberate manner.

"This was as far from an accidental slip of the tongue on the floor of the House as one could imagine," she said.

Ms Murphy welcomed the ruling and said she had only ever acted in the public interest.

In a statement, Mr O'Brien said he was "disappointed" and would take time to consider whether or not to appeal.

The businessman said he was encouraged by the fact the court had acknowledged the case raised important issues and there had been a finding he had been undoubtedly damaged by the actions of the TDs.

"Perhaps, most importantly, I am encouraged by the fact that the court appeared to appreciate that the current operation of parliamentary privilege as found by the court warrants a review," he said.

Read more: Oireachtas urged to review rules around use of privilege

Irish Independent

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