The Mahon tribunal must pay the costs of its unsuccessful court attempt to ban publication by the media now, and into the future, of documents circulated in private by the tribunal in advance of its public hearings, the Supreme Court ruled yesterday.
By a three-to-two majority last March, the Supreme Court had dismissed an appeal by the tribunal against the High Court's refusal to grant a perpetual injunction restraining the Sunday Business Post and others from publishing material circulated in private by the tribunal prior to its public hearings.
Chief Justice Mr Justice John Murray and Mrs Justice Susan Denham agreed with Mr Justice Nial Fennelly, who delivered the majority court judgment. The dissenting judgment was given by Mr Justice Hugh Geoghegan with whom Mr Justice Adrian Hardiman agreed.
The case arose after the newspaper published three articles in October 2004, written by Barry O'Kelly and headlined "Jim Kennedy's Pipe Dream", "Fifty councillors named in new planning list" and "Lenihan, Flynn in new payments revelations".
The tribunal claimed those articles were based on extensive leaks of "confidential" tribunal documents, and such publication breached the rights of persons to fair procedures before the tribunal, to their privacy and to protection of their good name.
In the High Court in October 2005, Mr Justice Peter Kelly refused to grant an injunction preventing the Sunday Business Post or other media publishing documents which the tribunal had circulated in advance of public hearings. However, publication of such material was restrained pending the outcome of the tribunal's appeal to the Supreme Court.
In upholding the High Court decision, Mr Justice Fennelly said the order sought had no legal justification and would breach the right to freedom of expression, including the free communication of information, guaranteed under the Constitution and European Convention on Human Rights. "The right of a free press to communicate information without let [ obstruction] or restraint is intrinsic to a free and democratic society," he said.