A Green Party trustee wants legal costs against RTÉ of his failed challenge to the broadcaster's exclusion of Green Party leader Eamon Ryan from a televised party leaders debate during the general election.
Tom Kivlehan’s case raised issues of exceptional public importance and novelty concerning the democratic interests of the state and the role and responsibilities of RTÉ as a publicly funded public service broadcaster, his counsel Siobhan Phelan SC told the High Court.
This case was not just about the interests of the Green Party but also about “protecting the democratic process”.
RTÉ disputed those arguments, maintained it had won on all issues raised and the only fair outcome was to give it its costs against Mr Kivlehan.
The case arose after Eamon Ryan, who was in court today with Mr Kivlehan, was not invited to participate in the debate, broadcast on RTÉ One on February 15th, because the Green Party did not meet a requirement set by RTÉ for participation in such debates of having three TDs in the outgoing Dáil.
Just hours before the debate was broadcast, Ms Justice Marie Baker rejected Mr Kivlehan's challenge to RTÉ's failure to add Mr Ryan alongside seven other party leaders. The judge found there was nothing unfair, irrational or disproportionate about the three TDs criterion.
Costs issues were adjourned and, having heard arguments on those from both sides on Wednesday, the judge said she would rule on Thursday as she had important issues to consider.
Seeking RTÉ’s costs, Nuala Butler SC said Mr Kivlehan had in his sworn statement grounding his case said he brought it as a Green Party trustee and member and had not described himself as a citizen concerned about democracy, as was now being argued.
RTÉ had never disputed its statutory obligations as a public service broadcaster, she said. Its position all along was an editorial decision had been made establishing criteria for inclusion in leaders’ debates which it considered, and the court had found, were fair, rational and equally applicable to all parties.
This was not a case involving issues of “conspicuous novelty” or exceptional public importance. While of importance to the Green Party, the issues were not so exceptional as to justify departure from the normal rule costs go to the winning side. Orders granting Mr Kivlehan his costs against RTÉ, or directing each side to pay their own, would be an “unfair outcome”.
Ms Phelan, for Mr Kivlehan, argued the case had a public interest perspective as Mr Kivlehan was concerned to ensure the “widest possible platform” was available to the electorate in the general election in vindication of the constitutional framework.
A general election is a “special event” and this case raised new arguments in seeking to extend the protections available under the referendum process to general elections.
It was also relevant there was no attempt to injunct the leaders’ debate and that the Greens sought to resolve the matter with RTÉ prior to going to court, she said.