'Irish Times' ordered to pay costs

The editor of The Irish Times Geraldine Kennedy and public affairs correspondent Colm Keena at the Four Courts in Dublin following the Supreme Court judgment in July. Photograph: Matt Kavanagh

PAUL CULLEN

The Supreme Court has ruled that The Irish Times will have to pay the costs arising from the successful appeal by two of its journalists against a case taken by the Mahon tribunal.

The court ruled this morning that there were “exceptional circumstances” justifying the granting of costs to the tribunal even though it lost the appeal in the Supreme Court earlier this year.

Costs of the High Court and Supreme Court proceedings are estimated at up to €600,000.

The case arose after the tribunal sought a court order compelling Irish Times editor Geraldine Kennedy and Public Affairs Correspondent Colm Keena to answer questions relating to the source of an article about financial payments to former taoiseach Bertie Ahern.

Irish Times editor Geraldine Kennedy expressed disappointment at the decision given the unanimous decision of the five judges to overrule the High Court in July.

"It was a landmark judgment, enshrining the principle of journalistic privilege and the protection of sources into Irish law for the very first time. The Supreme Court vindicated our decision to publish the original story about the payments of monies to former taoiseach Bertie Ahern while he was minister for finance in the public interest."

Ms Kennedy said the newspaper would have to consider its options. She added: "I want to be absolutely clear about one thing. My only concern was to serve the public's right to know by bringing Colm Keena's story to publication and, in doing so, to protect journalistic sources in the process".

Last July, the Supreme Court unanimously allowed the appeal by The Irish Times but criticised the actions of the journalists in destroying the document that was the source of the article.

Today, the five-judge court said the journalists succeeded in their appeal because the court had held the High Court did not correctly strike the balance between journalistic privilege derived from freedom of expression and the public interest of the tribunal in tracing the source of the leak.

It was the very act of destroying the document that decisively shifted the balance and deprived the tribunal of any effective power to conduct an inquiry and deprived the courts of any power to give effect to any tribunal order, the judgment stated.

“This act was calculated and deliberate and was performed with that clear purpose in mind,” it continued. “In the view of the court, the deliberate behaviour of the appellants was directly related to and was intended to achieve the outcome of the case, which has in fact occurred.”

The court ruled that the behaviour of the journalists was such as to deprive them of their normal expectation that the costs would accrue to the winning side in the case.

The article at the centre of the case was written by Mr Keena and published in The Irish Times in September 2006. It disclosed the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance and stated businessman David McKenna was among persons contacted by the tribunal about payments totalling between €50,000 and €100,000.

The tribunal ordered the production of the document but Ms Kennedy, in order to protect journalistic sources, ordered its destruction.