Mahon Tribunal must pay costs on media leaks case

THE Mahon Tribunal must pay the substantial costs of its unsuccessful court attempt to ban publication by the media now and into the future of documents circulated in private by the tribunal in advance of its public hearings, the Supreme Court ruled yesterday.

By a three-to-two majority last March, the Supreme Court had 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, Mr Justice John Murray and Ms Justice Susan Denham agreed with Mr Justice Niall Fennelly, who delivered the majority court judgment.

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.

The tribunal claimed those articles were based on extensive leaks of “confidential” tribunal documents, and such publication breached the rights of persons to fair procedures before the tribunal, to their privacy and to protection of their good name.

In the High Court in October 2005, Mr Justice Peter Kelly refused to grant an injunction preventing the SBP or other media publishing documents which the tribunal had circulated in advance of public hearings.

However, publication of such material was restrained pending the outcome of the tribunal’s appeal to the Supreme Court.

In upholding the High Court decision, Mr Justice Fennelly said the order sought had no legal justification and would breach the right to freedom of expression, including the free communication of information, guaranteed under the Constitution and European Convention on Human Rights. However, the judge left open the possibility that individuals who were aware of impending media publication could succeed in seeking injunctions.