Denis O’Brien’s action a tribute to his 'self-regard'

A citizen has “no legal remedy whatsoever” for anything said about them in the Houses of the Oireachtas, no matter how serious or damaging they believe it is, the State has told the High Court.

It is “a tribute” to businessman Denis O’Brien’s “self-regard” that he thinks statements by two TDs “which offended him, and which he thinks disclosed his private banking information”, amounts to “a constitutional coup d’etat”, Maurice Collins said.

The Constitution intentionally provides a “zone of immunity” and “closed universe” around “utterances” in the Dáil and Seanad which prevents them being scrutinised by the courts.

Article 15.13 of the Constitution, which states members of the Oireachtas are “amenable” only to the Houses for “utterances” in the Houses, creates an “absolute barrier” to Mr O’Brien’s case over the Dáil statements made by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty, counsel argued.

Mr Collins, for the State, concluded his arguments yesterday opposing Mr O’Brien’s action alleging both TDs “clearly disregarded” the constitutional separation of powers between parliament and the courts when they made their statements in May and June 2015.

In his case against the clerk of the Dáil and the State, he wants the court to declare the statements, made when he had ongoing High Court proceedings against RTÉ seeking to restrain it publishing details of his banking relationship with State-owned Irish Bank Resolution Corporation, amounted to “unwarranted interference” in the judicial domain.

He also claims the Dáil Committee on Procedure and Privileges (CPP), which had rejected his complaints over the statements, failed to “properly police” the TDs over their statements.

Beginning closing arguments yesterday for Mr O’Brien, Eileen Barrington said the businessman’s “over-arching” case concerned the “equilibrium” between the courts and parliament provided for in the Constitution.

The State’s position fails to recognise the court’s role in maintaining the balance between the separation of powers, counsel said.

In seeking to have the court focus almost exclusively on Article 15.13, the State was “skewing the balance” and not giving the court “the full perspective required”.

While Article 15 was “an important provision”, it was an emanation of one of the principles of the separation of powers and the case law provides jurisdiction for the courts to intervene in certain circumstances.

There was no “special carve-out” of some “hyper-nonjusticiable cases” as a result of Article 15.13, she argued. Her side maintained Article 15.13 was not engaged here and disputed the other side’s insistence on the “broadest possible interpretation” of that provision.

Mr O’Brien’s cause of action against RTÉ was so “delicate and fragile” it could be decided by the “utterances” of a TD as opposed to having to be decided by legislation and it was “noteworthy” the defendants had not addressed Mr O’Brien’s criticisms of what the TDs said in their Dáil statements.

The test for court intervention was not whether the “outcome” of Mr O’Brien’s case against RTÉ was decided by the statements but whether they affected the “power to decide” the case or an aspect of it.

The case continues today.

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