Denis O’Brien to testify on use of Dáil privilege

Billionaire businessman Denis O’Brien will give evidence today in his High Court action alleging two TDs “clearly disregarded” the constitutional separation of powers between parliament and the courts when they made statements in the Dáil about his banking affairs.

Mr O’Brien maintains a Dáil committee failed to “properly police” Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty in relation to their statements and the court should find those amounted to “unwarranted interference” with the judicial domain.

His counsel Michael Cush SC argued the TDs knew, when making their statements in May and June 2015, that Mr O’Brien had initiated proceedings to prevent RTÉ publishing details of his banking affairs with State-owned Irish Bank Resolution Corporation.

Mr Cush said Mr O’Brien’s lawyers had formally complained at the time that the statements were a “gross abuse” of Dáil privilege and breached the sub judice rule.

The outcome of the case, expected to finish next week, will rest on Ms Justice Úna Ní Raifeartaigh’s interpretation of various articles of the constitution.

In arguments yesterday, Mr Cush said the courts can intervene when there is “clear disregard” by members of the Oireachtas for the separation of powers.

This was one of the “extremely rare” cases when there was such a clear disregard, he said.

Ms Murphy put further information into the public domain after he got an injunction against RTÉ on May 21 restraining publication of his banking affairs, counsel said.

Because of a “so-called constitutional crisis” concerning what the media could report as a result of that injunction, it was “absolutely certain”, Mr Doherty must have been aware of the injunction when he made his “highly detailed” statement on June 9, Mr Cush said.

Article 15.13 — stating TDs are not “amenable” to the courts for utterances made in the Oireachtas — was among various constitutional provisions relied on by the defendants in opposing Mr O’Brien’s case, he said.

Article 15.13 conferred an “enormous privilege and immunity” on an individual member, that privilege must be asserted by them and must be “strictly construed”.

Various court decisions on Article 15.13 should be read in the context of the concepts of punishing or disciplining TDs and did not mean TDs actions cannot be questioned, he argued.

Because Mr O’Brien had not sued the TDs and was not seeking any relief against them, this case was different, he argued. What was sought were declarations their statements amounted to unwarranted interference in the judicial domain and, in that context, Article 15.13 was “not relevant”.

Mr Cush also argued Mr O’Brien had a right to a proper hearing and determination of his formal complaints to the CPP (Committee on Procedure and Privileges) about the TDs’ statements.

The complaint against Mr Murphy alleged a “gross breach” of Dáil privilege but the CPP did not address those claims, Mr Cush said, adding it had applied the wrong test and did not address whether the TD had discharged the onus to avoid prejudicing the outcome of legal proceedings.

The committee’s response to the complaint about Mr Doherty involved an incorrect interpretation of Dáil Standing Orders, he argued.


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