Denis O’Brien loses High Court action over Dáil disclosure

What O’Brien sought would have a ‘chilling effect’ on parliamentary speech, said judge

Denis O’Brien: Ms Justice Ní Raifeartaigh said damage was undoubtedly done to him and the two TDs in the Dáil appeared to have  released information  about him in a “deliberate and considered” way. Photograph: Dara Mac Dónaill

Denis O’Brien: Ms Justice Ní Raifeartaigh said damage was undoubtedly done to him and the two TDs in the Dáil appeared to have released information about him in a “deliberate and considered” way. Photograph: Dara Mac Dónaill

 

Businessman Denis O’Brien has lost his High Court action over statements made by two TDs in the Dáil about his banking affairs, after he had got court injunctions restraining RTÉ publicising that information.

What Mr O’Brien sought was prohibited by the separation of powers under the Constitution, was “very far-reaching” and would have a “chilling effect” on parliamentary speech into the future, Ms Justice Úna Ní Raifeartaigh said.

Irrespective of the court proceedings or how damaging what Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty said was, article 15 of the Constitution confers immunity from legal proceedings both on “utterances” made in the Dáil and on the member who makes them, she held.

The courts “simply do not have a role in policing parliamentary utterances” except perhaps in some exceptional and limited circumstances, the nature of which were “hard to envisage” and this case could not be regarded as exceptional, she said.

She took this view with her “eyes wide open” to the fact that what the TDs said rendered Mr O’Brien’s case against RTÉ, concerning disclosure of his banking relationship with IBRC, “almost entirely” pointless.

Banking details

Mr O’Brien was not in court on Friday when the judge ruled on his seven-day case against the clerk of the Dáil, the Dáil Committee on Procedures and Privileges and the State. Deputy Murphy was in court.

The matter was adjourned for a week to allow the sides to consider the 106-page judgment. Liability for costs of the case, estimated at some €1 million, will be decided later.

In his action, Mr O’Brien alleged that Ms Murphy and Mr Doherty “clearly disregarded” the constitutional separation of powers between parliament and the courts when they respectively made statements in the Dáil in May and June 2015. The statements, made after Mr O’Brien took proceedings against RTÉ in April 2015 to stop it publishing details of his banking relationship with State-owned IBRC, amounted to “unwarranted interference” in the judicial domain, he claimed.

The respondents argued that the courts could not intervene as a result of “absolute immunity” conferred by article 15 on utterances in the Dáil.

Ms Justice Ní Raifeartaigh said damage was undoubtedly done to Mr O’Brien: the information appeared to have been released on the floor of the House in a “deliberate and considered” manner and was “far from an accidental slip of the tongue” .

Having reviewed Irish legal authorities, including the recent High Court judgment of the failed case by former Rehab chief executive Angela Kerins, she ruled that by virtue of article 15, the court could not intervene and also held that decisions of the European courts and courts of other jurisdictions did not assist Mr O’Brien either.

Having regard to the importance of the “core value” of parliamentary speech being protected, article 15.12 and 15.13 of the Constitution were intended to create “a basket of immunities and privileges” to ensure courts and tribunals would not be involved in analysing and pronouncing upon either the content of parliamentary speech or the motivation of the speaker.

The purpose of the declarations sought by Mr O’Brien was to get “judicial condemnation” of what the TDs said which would “cut through to the very heart of the immunity”.

Immunity

It meant that Mr O’Brien would be entitled to orders to prevent future utterances which he apprehended might breach a court order and might perhaps also be entitled to damages.

The court could not, as Mr O’Brien sought, draw dividing lines between “legitimate and illegitimate” speech in the Oireachtas. There were issues where any such line would be drawn; whether it could be confined to cases where injunctions were granted; a trial was pending but no injunction; or did it apply from when proceedings were issued?

It would be “very far-reaching indeed” if matters could be put beyond parliamentary speech by simply starting proceedings against the clerk of the Dáil, potentially stopping parliamentary speech on the issue for years pending trial.

Because of a “procedural or tactical” decision by Mr O’Brien not to sue the TDs themselves, this was the first Irish case where it was sought to have a Dáil “utterance” made subject of proceedings unaccompanied by the TD who made it.

Rejecting arguments that the immunity from legal proceedings applied to the TDs rather than the utterances, she said the immunity was provided in the first place because of the “value of free speech” in parliament.

Any possible power by the courts to intervene in Dáil utterances would, based on the authorities, seem to require “some grave threat to the democratic order”, she said. However frustrating and infuriating Mr O’Brien must have found the utterances of the TDs, this was not of such gravity that the court could intervene.

Article 15 also meant the court could not intervene in how the Dáil Committee on Procedure and Privileges dismissed Mr O’Brien’s complaint about the utterances, she said. If the court got involved, it would inevitably be drawn into adjudicating on the content of what was said and the motivation of the TDs, and could not do so.

The door to justiciability was “not only closed, but double locked” because this was an internal inquiry by the Committee under Article 15.10 and concerned “utterances” protected by Article 15/12 and 15.13.

Confidentiality

In concluding remarks, the judge said there was no doubt the impact of parliamentary speech can potentially be damaging and dangerous to people.

There could, for example, be situations where a politician could identify a person charged a serious sexual offence who would be normally entitled to anonymity and be later acquitted.

This case might “throw a light” on the need for a general examination of this area, such as in the New Zealand parliament, which might consider issues such as whether and when a TD may discuss matters that are before the courts and reveal things that are the subject of confidentiality injunctions.

There seemed to be “at least some ambiguity and lack of clarity” about procedures and parameters concerning speech relating to sub judice matters.

Any discussion on the future of the relevant Dáil standing orders could be progressed in the public arena and the Oireachtas but not in the courts, she said.

Judicial intervention in this area would not, as Mr O’Brien had argued, restore a constitutional equilibrium but would rather disrupt the equilibrium established by the Constitution.