'Irish Times' ordered to pay legal costs in full

THE IRISH Timeshas been ordered by the Supreme Court to pay total legal costs, estimated at more than €600,000, of the Mahon tribunal's failed bid for a court order compelling Editor Geraldine Kennedy and Public Affairs Correspondent Colm Keena to answer questions on the source of an article about payments to former taoiseach Bertie Ahern.

The five-judge Supreme Court ruled yesterday there were “exceptional circumstances” in the case – namely the journalists’ destruction of documents related to the source – which justified departure from the normal rule that costs go to the winning side in litigation.

The costs issues arose after the Supreme Court last July unanimously allowed the journalists to appeal against a High Court order requiring them to answer questions from the tribunal relating to the source of the article, written by Keena and published in The Irish Times in September 2006.

The article disclosed that the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance, and stated businessman David McKenna was among persons contacted by the tribunal about payments totalling between €50,000 and €100,000.

The tribunal claimed the article was based on a confidential letter sent by it to Mr McKenna. In October 2007, a three-judge High Court ordered the journalists to answer the tribunal’s questions regarding the article’s source.

The Supreme Court quashed that order after finding the High Court, by placing too much emphasis on the journalists’ “reprehensible” conduct in destroying papers, failed to strike the proper balance between the tribunal’s right to protect its private investigative phase and the journalists’ right to protect the source. Any restrictions on freedom of expression generally must be justified by an “overriding requirement in the public interest”, it ruled.

Giving the Supreme Court’s reserved ruling on costs yesterday, the Chief Justice, Mr Justice John Murray, noted the tribunal wrote to The Irish Times on September 25th, 2006, requiring the journalists to appear before it and answer questions on the source of the letter, a copy of which had been sent anonymously to Keena.

After receiving that order and after a meeting with legal advisers, Ms Kennedy, to protect journalistic sources, requested Keena to destroy any documents he had concerning the story, and he had done so. Keena agreed with that decision, and Ms Kennedy had also destroyed copies of the documents in her own possession.

The Chief Justice said this “deliberate act of destruction” deprived the tribunal of the possibility of conducting any meaningful inquiry into the source.

He said the journalists succeeded in their appeal against the High Court order because the Supreme Court held the High Court had not correctly struck the balance between the journalistic privilege derived from exercise of the right to freedom of expression, and the public interest of the tribunal in tracing the leak’s source.

It was the destruction of the documents that decisively shifted the balance in the journalists’ favour, deprived the tribunal of any effective power to conduct an inquiry and, by extension, deprived the courts of power to give effect to any order of the tribunal, he said.

“This act was calculated and deliberate and was performed with that clear purpose in mind. That ‘reprehensible conduct’ determined the course which these proceedings took and was at the root of balancing the issue which the court had to determine.”

There was no doubt the Supreme Court had jurisdiction, exercised in exceptional cases, to order a successful party to pay the costs of the unsuccessful party.