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High Court dismisses Ben Gilroy's RTE action; Second challenge to be heard tomorrow

Ben Gilroy pictured leaving the Four Courts today. Photo: Collins Courts

A legal challenge brought by an independent candidate in this month's European Parliament elections over RTE's decision not to include him in a live television debate has been dismissed by the High Court.

Mr Justice Senan Allen said proceedings brought by Ben Gilroy, arising out of the RTE decision not to include him on an RTE live debate programme on the election scheduled for May 20, had "no legal basis".

The Judge also said he agreed with counsel for RTE Ms Niamh Hyland that the application was brought by Mr Gilroy in an attempt to enhance his electoral prospects in the May 24 ballot.

A similar but separate action brought by another independent candidate Eamonn Murphy, who like Mr Gilroy is also contesting the Dublin constituency and has not been invited to participate in the programme, is due before the High Court tomorrow.

In his action, Mr Gilroy had sought various declarations to the effect that the decision to exclude him from the debate is unfair, undemocratic and that he has a right to be heard.

He claimed the decision to exclude him, and other candidates not invited to participate in the programme, breach the regulations set out by the Broadcasting Authority of Ireland on elections.

The decision he claimed meant RTE was in breach of its remit as a national broadcaster and gave an unfair advantage to the established politicians and parties who take part in the programmes.

In his submissions to the court Mr Gilroy said he did not want to stop the debate, nor was he looking for an injunction that would compel the broadcaster to include him in the debate.

He was simply looking for a declaration that RTE's decision was unfair.

RTE disputed the claims.

In reply David Nally, RTE's Head of Current Affairs said in a sworn statement to the court that certain criteria were set down by RTE for the inclusion on the live debates.

These included if a candidate is already elected to EU parliament, Dail, or if the candidate got more than 5% in a recent national election.

Mr Gilroy did not meet the criteria, he said. A court order would cause considerable problems for any debate, he added.

He said that given there are 19 candidates in Dublin and 59 overall there was no system that would please all candidates, but RTE was satisfied that the selection criteria were fair, objective and impartial.

In her submissions to the court, Niamh Hyland SC for RTE said her client believed that it was in court to meet an application by Mr Gilroy for an interim order that would allow him to participate in the planned debate.

Counsel said that was not the case, there was no urgency to the case, the proceedings should have been brought by judicial review.

Counsel said that it also appeared the application before the court was an attempt by Mr Gilroy to generate publicity to advance his electoral ambitions.

Mr Justice Allen agreed with counsel for RTE. He said that the court and RTE had initially believed that he was seeking some sort of urgent interim injunction that would allow him to participate in the programme.

That was not the case and Mr Gilroy was now looking for some sort of an interim declaration that might help his electoral prospects.

The court could not make such an order, as it is not known in law, and Mr Gilroy should have known that, the Judge said.

The Judge also said the application, which had been given some degree of urgency, was not an appropriate use of court time.

The Judge said the formatting of the debate as advanced by Mr Nally in his sworn statement was "sensible."

In the circumstances, the court was dismissing the application, and awarded costs against Mr Gilroy in favour of RTE.

Eamonn Murphy
Eamonn Murphy

Earlier Mr Murphy informed Mr Justice Leonie Reynolds he wished to bring proceedings against RTE arising out of the decision not to include him on the live debate.

Ms Hyland said her client had no prior notice from Mr Murphy that he intended to take proceedings against it.

Following a brief adjournment to consider Mr Murphy's claim counsel said Mr Murphy's case differed from Mr Gilroy's, and they should not be heard together.

Counsel said the difference was Mr Murphy was also contesting the decision not to show a one-minute video that he furnished to RTE setting out his campaign.

Videos of a similar length from other candidates seeking election to the European Parliament are being shown by RTE on its website.

However, Mr Murphy's video was deemed to be in breach of the Broadcasting Act and the BAI's code of conduct by RTE, which informed him of its decision.

Ms Justice Reynolds said that as separate issues arose in Mr Murphy's intended action that case should be adjourned until tomorrow to allow RTE to respond to the claim.

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