Redacted judgment in Denis O’Brien injunction published

The High Court has published a redacted judgment setting out its reasons for granting an injunction to businessman Denis O'Brien and Irish Bank Resolution Corporation against RTÉ.

Mr Justice Donald Binchy said he had made some "fairly minimal" redactions to the judgment, which explains his reasoning for giving an injunction against RTÉ broadcasting details of Mr O'Brien's personal banking with IBRC.

The judge said he had taken into account not only the text of Independent TD Catherine Murphy’s speech in the Dáil last week, but also the meaning of what she said.

The redactions, marked in the text by blank white spaces, also related to issues that could be reasonably inferred from what Ms Murphy told the Dáil under parliamentary privilege.

In his judgment, Mr Justice Binchy said the existence of a right to confidentiality between a bank and its customers had been recognised in law for almost a century.

This was not just a private interest - there was also a public interest in the maintenance of such confidentiality for the benefit of society at large.

The parties in the case had agreed that the right to confidentiality was not absolute and that in given circumstances it may give rise to issues of very significant public importance, and not just in cases where wrongdoing was involved.

The judge said, however, that there must be some “meaningful connection” between the issue of public importance that has been identified and, firstly, those whose rights may be breached and, secondly, the information and documentation under consideration. “It could hardly be suggested that information of a confidential nature could be divulged absent any such connection,” he wrote.

The issue of significant public interest raised by RTÉ in this case was the corporate governance of IBRC, and Mr Justice Binchy accepted there was “no doubt at all about the public interest in the affairs of IBRC”. He cited a High Court colleague, Mr Justice Colm Mac Eochaidh, who said in a separate case that the whole of the operation of IBRC was now, effectively “a public interest operation.”

Mr Justice Binchy went on: “That of itself however does not entitle the public to know every detail of the affairs or operation of IBRC, and certainly not confidential information concerning its customers.”

“The public interest is in knowing that it is properly governed and operated, and where there are any significant shortcomings in this regard, and in particular where such shortcomings may lead to significant losses, which have to be borne at the expense of the public purse, in my view the public is entitled to be informed of such matters.”

RTÉ emphasised at the hearing that no allegation of wrongdoing of any kind was alleged against Mr O’Brien. The concern raised by RTÉ in relation to Mr O’Brien was that, upon the expiration of a deadline for re-payment of his loan facilities he applied to the then chief executive of IBRC for an extension to repay the balance then outstanding.

While there was nothing unusual about that request, the judge said, RTÉ argued that the request may not have been properly processed within the bank in so far as Mr O’Brien alleges that he had a verbal agreement with the then chief executive in relation to the extension of the period for repayment of the balance of his loan, in circumstances where any such agreement would require credit committee approval within IBRC.

“If such an agreement was reached without credit committee approval, it would indeed be indicative of a failure of corporate governance, having regard to the significant balance of the loan outstanding, and if it lead [SIC]to a loss in the hands of IBRC, that might well justify a determination that Mr O’Brien could not rely on the confidentiality that would otherwise apply,” he said.

However, “no evidence of a substantive nature was presented to the court at all” such that the court could conclude that it was likely that there had been such a failure of corporate governance, ie, that such a verbal agreement had been reached.”

At its height, the judge said, RTÉ’s case was the Mr O’Brien alleged the existence of such an agreement with the chief executive.

“From the information made available to the court, it does not appear that the existence of such an agreement was at any time, before or after the liquidation of IBRC, accepted by IBRC,” he said.

Mr Justice Binchy said a balance had to be struck between Mr O’Brien’s right to privacy against RTÉ’s right to freedom of expression. “In conducting this balancing exercise I believe that the court must take account of the fact that very little, if any, connection has at this stage been established between the public interest in alleged failure of corporate governance at IBRC and Mr O’Brien’s personal dealings with IBRC,” the judge said. “In the absence of such a connection, I believe that the plaintiffs have established a convincing case that they will succeed at the full trial of the matter.”