Mahon loses bid to prevent publication

THE Supreme Court has refused, by a three to two majority, to give the Mahon Tribunal an order banning publication by the media of documents circulated in private by the tribunal in advance of its public hearings.

The order sought had no legal justification and would breach the right to freedom of expression guaranteed under the Constitution and European Convention on Human Rights, Mr Justice Nial Fennelly said.

“The right of a free press to communicate information without obstruction or restraint is intrinsic to a free and democratic society,” he said.

The order sought was in “very wide terms”, “related to unspecified information” and was disproportionate, the court also found.

The tribunal had no legal power to designate as “confidential” material released by it and no power to stop by court orders those to whom it distributed its briefs from communicating their contents, he said.

Mr Justice Fennelly, delivering the majority Supreme Court judgment, dismissed an appeal by the tribunal against the High Court’s refusal to grant a perpetual injunction restraining the Sunday Business Post and others from publishing material circulated in private by the tribunal prior to its public hearings. The Chief Justice John Murray and Ms Justice Susan Denham agreed while the dissenting judgment was given by Mr Justice Hugh Geoghegan with whom Mr Justice Adrian Hardiman agreed.

The case arose after the newspaper published three articles in October 2004, written by Barry O’Kelly and headlined “Jim Kennedy’s Pipe Dream”, “Fifty councillors named in new planning list” and “Lenihan, Flynn in new payments revelations”.

The tribunal claimed those articles were based on extensive leaks of “confidential” documents, that it was obliged by law to circulate such documents to potentially affected persons prior to public hearings and publication of such material breached the rights of persons to fair procedures before the tribunal, to their privacy and to protection of their good name. However, the Supreme Court upheld the High Court decision to reject those arguments.

Reacting to the decision TCH chief executive Anthony Dinan said that the company had been determined to see the matter through. “I think it was very important for our industry and also for the public interest, which has been well and truly served by this judgment,” he said.

“TCH will always take a stand on a matter of principle and in that regard we got full backing from our shareholders, who knew the consequences of us not succeeding,” he added.

Cliff Taylor, the editor of The Sunday Business Post, also welcomed the judgment. He said it had “placed great emphasis on the Constitution and European Convention on Human Rights in its findings on freedom of the press. That is encouraging for the future”.