Journalists who publish confidential material relating to the planning tribunal "do so at their own peril," the chairman of the tribunal, Mr Justice Flood, has warned.
High Court proceedings will be brought against any person who the tribunal believes is likely to publish leaks of confidential tribunal material, Mr Justice Flood told yesterday's hearing in Dublin Castle. He was ruling on media submissions opposing an order sought by the tribunal restraining their coverage of its proceedings.
The tribunal was concerned that confidential information was being "deliberately and systematically drip-fed to elements in the media", he said. The leaks amounted to "a conscious and deliberate attempt" to damage the reputation of particular individuals and to undermine the work of the tribunal.
The chairman singled out Independent Newspapers for making "less than persuasive" arguments in defence of its right to publish confidential documents and for giving "an impression that they consider themselves in some fashion to be above the law".
He ordered the company to produce at a sitting on Monday the copy of the affidavit of Mr James Gogarty, the tribunal's main witness, which is in its possession. The contents of the affidavit were published last month in the Sun- day Independent, which is published by Independent Newspapers.
The company has already argued that it cannot return the document to the tribunal for fear this might reveal the source of the leak. Since it is almost certain to restate this argument on Monday, the company and the journalist who obtained the affidavit, Mr Jody Corcoran, are likely to end up in the High Court.
Strongly worded though it is, Mr Justice Flood's ruling acknowledges that issues of press freedom will have to be settled in court, and not before the tribunal. If, as some had feared, the judge had issued a blanket ban on the publication of confidential material, one or other newspaper would have sought a review in the High Court.
The threat of High Court proceedings seems only to apply to cases where the tribunal has learned in advance of a newspaper's intention to publish confidential information. The ruling has nothing specific to say about what happens once offending material is published.
Mr Justice Flood said the tribunal depended on the voluntary co-operation of people to accelerate its investigations. It was the experience of inquiries that from time to time certain people would try to "avoid, delay or frustrate" a given inquiry in an effort to conceal or distort facts.
The tribunal accepted the role of the media in educating and influencing public opinion. It could legitimately be the subject of adverse media comment. It was not making the case that it was immune from media reporting, comment and criticism. However, the media were not above the law.
Mr Justice Flood complimented the excellence of the submissions made by Mr John Gordon SC, for The Irish Times, and Mr John Trainor SC, for RTE, at last Wednesday's hearing. These had expedited the course of the hearing and focused on the essential legal arguments to be considered.
He said Independent Newspapers had adopted a different approach, "for facts or reasons that had not been made clear. The company, which prided itself on its access to 24-hour legal advice, could not credibly submit that the contents of a sworn affidavit provided in confidence to the tribunal did not constitute confidential information. Yet they do so."
When the tribunal wrote to the company, the chairman continued, "the elementary courtesy of an acknowledgment was beyond them". On the day before last Wednesday's hearing, a "minimal explanation" was advanced in correspondence.
"Whether intended or not, Independent Newspapers, in contrast to the other media represented here, give an impression that they consider themselves in some fashion to be above the law. If this is the impression then it is most regrettable."
If the tribunal made an order and it was disregarded, the tribunal would have to apply to the High Court for enforcement. The media had indicated that if such an order was made, they would seek to have it quashed in the High Court.
"One way or another the jurisdiction of the superior courts is clearly necessary to effectively resolve this matter."
The tribunal reconvenes on Monday at 10 a.m. to deal with the chairman's order to Independent Newspapers to produce the Gogarty affidavit.
