Judgment reserved as Denis O’Brien action concludes

Businessman Denis O’Brien’s action over statements made by two TDs in the Dáil about his banking affairs has concluded at the High Court with judgment reserved.

Ms Justice Úna Ní Raifeartaigh added she would not finalise her decision until the High Court rules on the separate case of former Rehab CEO Angela Kerins. Judgment on that case, which raises some similar issues, was reserved last October.

Mr O’Brien’s case, against the clerk of the Dáil and the State, concluded yesterday after almost seven days. Legal costs are expected to exceed €1m, and liability for those will be decided after judgment is delivered.

In his action, Mr O’Brien alleges Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty “clearly disregarded” the constitutional separation of powers between parliament and the courts when they respectively made statements in the Dáil in May and June 2015.

He claims 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, which rejected his complaints over the statements, failed to “properly police” the TDs over their statements.

In opposing the case, the respondents’ core argument is that the court, as a result of article 15 of the Constitution, has no jurisdiction to intervene.

They plead article 15.13, which states members of the Oireachtas are not amenable to any court or authority other than the Houses themselves for “utterances” in the Houses, effectively confers “absolute” immunity from suit over such utterances.

They also argue, if Mr O’Brien wins, that would greatly restrict Dáil speech.

In closing arguments for Mr O’Brien, Eileen Barrington said her side were not saying the court should find what the TDs told the Dáil was “untrue or misleading” but that they “crossed a line” and their actions should not be endorsed.

This was a “deliberate and knowing undoing”, not just of a High Court order, but Mr O’Brien’s legal action and “a breach of the constitutional equilibrium” that “should not be accepted as perfectly normal”.

What happened was “not right”, their statements “should not have been made”, and there were “consequences” for making them. Mr O’Brien was not seeking to visit “legal consequences” on either deputy but to have the court conduct a “materially different” exercise, “almost a judicial review style procedural exercise that does not come back to the utterances themselves”.

Mr O’Brien was “not trying to chill anybody’s speech” but to have the rules applied, and several interventions of the Leas Ceann Comhairle asking Ms Murphy “not to name names” underlined that point, counsel argued.

Mr O’Brien wanted a “limited” relief, a declaration the statements amounted to unwarranted interference in the judicial domain and, because he was not seeking legal consequences for any TD, his case was not captured by article 15.13.

Mr O’Brien, the sole witness, told the judge last week he wants the court to censure both TDs over their statements and to lay down a line beyond which Dáil deputies cannot go.


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