by Ann O'Loughlin
Denis O'Brien must pay all of the estimated €1m costs of his failed case over statements by two TDs in the Dáil about his banking affairs, the High Court has ruled.
Mr O’Brien had sought to have the State pay a “portion” of the costs but Ms Justice Una Ni Raifeartaigh today ruled there was an insufficient degree of novelty in the issues raised to justify departing from the normal rule that costs are paid by the losing party.
The State had opposed paying any of the costs on grounds including, had Mr O'Brien won his case, there would have been a "chilling effect” on parliamentary speech into the future.
Mr O'Brien's seven day case was against the clerk of the Dáil, the Dail Committee on Procedures and Privileges and the State, all of whom strongly objected to paying any “portion” of his costs.
In her costs ruling today, Ms Justice Ni Raifeartaigh said some aspects of the case involved no more than applying existing legal principles.
Other aspects of the case involved more than that and the factual matrix was novel as it involved the deliberate revealing confidential information on the floor of the Dáil, she said.
While there was some degree of novelty in the core issues that really lay in teasing out aspects of the existing jurisprudence and there was an insufficient degree of novelty in the issues raised to depart from the normal rule that costs are met by the losing party.
Mr O'Brien's case 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 had got court injunctions restraining RTE publicising that information.
In her judgment last March dismissing the case, the judge held what Mr O’Brien sought was "very-far-reaching", prohibited by the separation of powers under the Constitution and would have a "chilling effect" on parliamentary speech into the future.
She upheld the core defence argument Article 15 of the Constitution immunises Dáil "utterances" from suit or scrutiny by courts or tribunals.
In her costs ruling, the judge said, while the losing party usually pays the costs, the court has discretion depending on the circumstances and the issues raised, including if they are of far reaching importance or have clarified an area of the law.
While the issues raised were of general public importance, Mr O’Brien brought it primarily to protect his personal interest, she said.
While Mr O’Brien had decided not to sue the TDs and instead sued the clerk of the Dáil, she was not persuaded that did not involve any bad faith on his part.
As regards the shifts in Mr O’Brien’s position, she was also not persuaded that involved any bad faith but it did make the defendants’ task of responding to the argument more time consuming.
She was not prepared to take into account any damage suffered by Mr O’Brien as that would not involve her engaging in what she could not, assessing the Dáil remarks, she said. She was also satisfied it was not akin to the damage suffered by Angela Kerins in her separate case.