Supreme Court may rule on Denis O’Brien and Angela Kerins appeals before Christmas

Appeals centre on constitutional separation of powers

The Supreme Court may give judgment before Christmas on separate appeals by businessman Denis O'Brien and former Rehab chief executive Angela Kerins arising from statements by politicians in the Dáil and, in Ms Kerins case, at the Dáil Public Accounts Committee.

Both appeals raise similar important issues concerning the constitutional separation of powers and the courts’ ability to intervene in decisions and proceedings of the Houses and Committees of the Oireachtas.

They were among 18 appeals listed in the Supreme Court on Thursday under legislation which requires the president of any court to list proceedings where judgment is not delivered within two months from the date judgment was reserved.

The Chief Justice, Mr Justice Frank Clarke, said it seemed to him there was a case for suggesting the two-month period was no longer realistic in the context of the altered Supreme Court jurisdiction following the establishment in 2013 of the Court of Appeal.


Except for a small number of cases, the cases now being heard by the Supreme Court “are, by definition, almost always of general public importance and will inevitably be complex”, he said.

Dissenting judgment

In respect of collegiate courts, it is not only necessary that a judge writes and finalise their own judgment but also that their colleagues are afforded a reasonable opportunity to consider the judgment, perhaps write a concurring or dissenting judgment, but in any event to make observations in respect of the text of what may turn out to be the majority judgment of the court, he said.

“That takes time.”

Because judgments since the constitutional amendment altering the Supreme Court’s jurisdiction are of general importance and can affect a significant number of other cases, the precise reasoning adopted by the court, and the language in which that reasoning is expressed, is of particular importance and needs to be approached with special care and requires the involvement and contribution of all of the judges which heard that case, he added.

“Inevitably, doing that job properly takes time”.

He said “significant progress” has been made in bringing the 18 listed appeals towards a point where judgment can be delivered and he was confident most would be the subject of a judgment before the end of this law term on December 21st.

Where judgment is not delivered in any of the cases by December 21st, or where no definite date for delivery of judgment has been set, they would be further listed that day, he said.

The Chief Justice added he intends to comply strictly with the legislation requiring, where judgment is not delivered in any case within a two-month period of it being reserved, those cases would be listed before the court.

Banking affairs

Denis O’Brien’s appeal, heard last April, is over the High Court’s dismissal of his action against the Dáil and State over statements made by two TDs in the Dáil about his banking affairs and its order requiring him to pay the estimated €1 million legal costs of his failed High Court action.

His proceedings arose from statements made on separate dates in summer 2015 by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty after Mr O’Brien got court injunctions restraining RTÉ publicising that information.

Angela Kerins’ appeal, heard in February, was over the rejection of her challenge over her treatment at two Dáil Public Accounts Committee hearings into payments to Rehab. The PAC’s appeal against the High Court’s decision directing it to pay Ms Kerins’ estimated €700,000 costs of the case there, plus the State’s appeal over an order requiring it to pay its own costs, will be dealt with after the Supreme Court has given judgment.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times