Judge sets out case for RTÉ injunction

Denis O’Brien and IBRC were entitled to an injunction preventing RTÉ broadcasting details of the businessman’s personal banking arrangements on grounds, including that “no evidence” of “a failure of corporate governance” at the bank had been established, the judge who granted the injunction has said.

Mr Justice Donald Binchy in the High Court issued a written judgment giving reasons for granting an injunction to Denis O’Brien and Irish Bank Resolution Corporation against RTÉ.

The injunctions prevent RTÉ from broadcasting confidential details of Mr O’Brien’s personal banking arrangements with the IBRC.

The judge said while RTÉ had made no allegations of wrongdoing against the businessman, it had raised issues concerning transactions involving the bank which are alleged to have been poorly executed by the bank.

Mr Justice Binchy said no evidence of a substantive nature was presented to the court that would allow it conclude there had been a failure of corporate governance.

The judge found both IBRC and Mr O’Brien had, based on the evidence put before him, established a convincing case that they would succeed at a full hearing of the matter. It was also accepted damages would not be an adequate remedy for Mr O’Brien, who claimed his losses if details were broadcast would be incalculable.

Mr Justice Binchy’s findings are in a written in a redacted judgment, which was made available yesterday.

The injunctions, granted late last month following a three-day hearing, prevent RTÉ from broadcasting confidential details of the businessman’s personal banking arrangements with the IBRC pending the full hearing of the dispute.

The judge said he had made some redactions to the judgment, which he said were “fairly minimal”, taking into account both the exact text of Independent TD Catherine Murphy’s speech to the Dáil on the matter last Thursday but also the meaning of what she said.

The judge said the redactions related to issues that could not be reasonably inferred from what Deputy Murphy said in the Dáil.

Mr Justice Binchy said the existence of a right to confidentiality between a bank and its customers had been recognised in law for almost a century and there was a public interest in maintenance of such confidentiality for the benefit of society.

This right was not absolute and can give way to issues of very significant public importance. There must be a meaningful connection between the issue of public importance and the person whose rights may be breached and the information under consideration, he said.

There was no doubt about the public interest in the affairs of IBRC, but the public was not entitled to know every detail of the bank’s affairs, operations, or confidential information concerning customers.

The public would be entitled to know of significant shortcomings in the governance and operation of IBRC.

He said the concern RTÉ raised is that when a deadline for the repayment of Mr O’Brien’s loans expired, the businessman applied to the CEO for an extension of time to repay the balance. He said RTÉ argued this request may not have been properly processed within IBRC.

RTÉ contended Mr O’Brien alleged he had a verbal agreement with the CEO, Mike Aynesley, in circumstances where such an agreement would need credit committee approval.

The judge said if such an agreement was reached without credit committee approval it would indicate a failure of corporate governance. If this led to a loss for IBRC, that may justify a finding that Mr O’Brien could not rely on confidentiality normally applicable.

The judge found “no evidence of a substantive nature” was presented.

At its height, RTÉ’s case was Mr O’Brien had alleged he had a verbal agreement with Mr Aynesley. The fact Mr O’Brien contends he had such an agreement with IBRC is in the court’s view “immaterial.”

The judge said Mr O’Brien was entitled to privacy, under the European Convention of Human Rights and the Constitution, and a right to confidentiality. Those rights must be balanced against RTÉ’s right to freedom of expression.

The matter will return before the Court tomorrow, when RTÉ may make further applications to the court.