Tuesday 23 January 2018

O'Brien wants US expert's evidence for Dáil court case

Mr O’Brien has claimed that utterances in the Dáil had breached
his rights. Photo: Bloomberg
Mr O’Brien has claimed that utterances in the Dáil had breached his rights. Photo: Bloomberg

Tim Healy

Businessman Denis O'Brien wants to have evidence from a US constitutional law expert heard in his forthcoming High Court action alleging statements made by TDs in the Dáil about his banking affairs are not absolutely privileged.

Mr O'Brien, who will give evidence in the case himself, claims there is no such absolute privilege on grounds including utterances in the house must not usurp the judicial domain and must be linked to the legislative process. If those claims are upheld, that has major implications for proceedings in the Oireachtas.

A pre-trial application to have the court admit into evidence a 60-page report from Professor Laurence Henry Tribe of Harvard Law School was made by Michael Cush SC, for Mr O'Brien.

Mr Cush said this was a "unique and important" case based on "stark" facts concerning Dáil statements made by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty about his client's banking affairs.

Evidence as to US law was relevant to the issues raised, he argued.

It would be "appropriate and helpful" to look at authorities from other jurisdictions - the issue for examination was the interplay between the various pillars in a democracy.

Sara Moorhead SC, for the Dáil Committee on Procedure and Privileges (CPP), and Maurice Collins SC, for the State, argued there was no provision under which the Irish courts could hear such evidence.

Professor Tribe's evidence has no relevance to Irish constitutional law, Mr Collins said. If US law was deemed to be relevant, then so too could precedent from several other countries. Mr O'Brien's case could turn into "a constitutional convention" if such evidence were admissible, he argued.

Mr Collins added that it seemed every case by Mr O'Brien was described as "unique and important".

The President of the High Court, Mr Justice Peter Kelly, said he would give his decision as to whether the evidence was admissible on a later date.

The judge previously refused an application by Mr Cush to have the action, fixed for November 29, heard by a three-judge high court.

Mr O'Brien has claimed utterances by Deputy Murphy and Deputy Doherty in the Dáil, in May and June 2015 respectively, breached his rights.

The CPP, in response to complaints by Mr O'Brien, held neither Deputy had breached the standing orders governing debate in the Dáil.

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