Mr Justice Flood is widely expected to impose an unprecedented order restricting media coverage of the planning tribunal he chairs when it reconvenes tomorrow morning.
The order is likely to fall short of the blanket ban which caused concern in newspapers which made submissions to yesterday's hearing, but media organisations will inevitably view it as a threat to press freedom. The issue is therefore likely to end up in the High Court.
The newspapers which appeared in Dublin Castle yesterday argued that Mr Justice Flood has no jurisdiction to make the kind of restraining order he is seeking. Even if he had, they argued, such an order against the media would not be justified in this case.
The Irish Times, Independent Newspapers, Ireland on Sunday, the Sunday Tribune, RTE and TV3 argued that an order restraining media coverage of the tribunal would constitute a major breach of press and broadcasting freedom. The Sunday Times and Sunday Business Post were not represented.
At issue is the judge's concern to stem the flow of newspaper leaks of documents relating to its work. Mr Justice Flood has already called in the Garda to investigate the leaking of the affidavit of Mr James Gogarty, the tribunal's main witness. As he explained at the start, the work of the tribunal team of lawyers has been hampered by the leaks. Some of those the lawyers want to interview have been loath to co-operate, giving as their reason their fears that confidential material they might supply would end up in the newspapers.
"This cannot be allowed to continue," the judge remarked. He quoted approvingly from a British judgment which said that "the media tend to confuse the public interest with their own".
For the tribunal, Mr Desmond O'Neill SC, assured the media that the proposed order would be "narrow rather than broad" and would only ban the publication of private and confidential material provided to the tribunal or circulated by it to other parties.
If journalists wanted clarification as to whether a document was covered by such an order, this would be provided. The order would be limited to matter that was determined to be the property of the tribunal, Mr O'Neill said.
However, it was clear that the tribunal was entitled to restrain the publication of certain material even though this might have a "public interest context," he added.
Counsel for the media organisations invoked the Constitution, judgments from previous tribunal cases, British and American law, and the European Court of Human Rights in their arguments in defence of press freedom.
Mr John Gordon SC, for The Irish Times, led the way. The newspaper was unable to give the undertaking sought by the judge as this could prevent it from publishing material which might be in the public interest, he said.
He referred to the recent Supreme Court judgment relating to a Cork drugs case, in which the court threw out the judge's attempt to impose blanket restrictions on reporting of the case.
He acknowledged that in 1992 Mr Justice Hamilton, as chairman of the beef tribunal, had issued an order requiring a Sunday Business Post journalist to appear before the tribunal. However, the present situation was "fundamentally different" from this circumscribed order, as Mr Justice Flood was seeking a blanket undertaking from newspapers.
The tribunal chairman did little to hide his frustration with Independent Newspapers, for whom Mr Eoin McCullough argued that just because information was given in confidence did not mean it was confidential in the legal sense. "It could, for example, be a well-known fact or rumour," he said.
But Mr Justice Flood was more interested in getting his hands on the copy of Mr Gogarty's affidavit, which was published in the Sunday Independent last month. The newspaper had already rejected his request for this copy of the affidavit to be returned to the tribunal.
Yesterday he asked repeatedly if there was anything unusual about the copy which would prevent the newspaper from returning it. Mr McCullough said there were "no distinguishing features" but said the journalist concerned, Mr Jody Corcoran, could not return it in order to protect his sources. Mr Justice Flood showed his determination to take action as soon as possible, and before the next publication of the Sunday papers, by adjourning until tomorrow.
