Court says no to RTÉ injunction application

The High Court has refused RTÉ’s application to fully discharge an injunction restraining publication of certain information relating to the banking relationship between Denis O’Brien and the State-owned Irish Bank Resolution Corporation.

Mr Justice Donald Binchy yesterday said he would not discharge in full the existing order, which applies pending the full hearing of the proceedings against RTÉ, but would amend it to reflect the “dramatic” developments since it was made last month.

He will hear submissions on the final form of the amended order next week.

RTÉ had argued it was pointless to leave the injunctions in place given developments, including Dáil speeches by Independent TD Catherine Murphy and Sinn Féin TD Pearse Doherty, and a statement by former IBRC CEO Mike Aynsley, concerning Mr O’Brien’s banking relationship with IBRC.

Mr O’Brien’s lawyer Michael Cush SC opposed discharging the order in full for reasons including RTÉ’s failure to give undertakings not to publish any other confidential information it may have concerning Mr O’Brien’s banking affairs with IBRC.

Andrew Fitzpatrick BL, for IBRC, also opposed full discharge on grounds including that the bank was entitled to absolute privilege over any communications with customers deriving from legal advice.

Earlier this week, the sides agreed the injunction should no longer cover Mr Aynsley’s statement or certain information previously deemed confidential to Mr O’Brien but now in the public domain.

Because the information in the planned RTÉ broadcast about which he was concerned was now in the public domain, Mr O’Brien no longer opposed that being broadcast but did oppose broadcast of any other confidential information concerning his banking affairs with IBRC.

IBRC argued that any parts of the RTÉ report subject of legal professional privilege should not be broadcast.

RTÉ argued, while accepting legal professional privilege was absolute, it could not extend to material in the public domain or trump RTÉ’s right to freedom of expression.

In his ruling, Mr Justice Binchy said RTÉ’s application to discharge was reasonable to make in light of the dramatic developments to date but, notwithstanding those, it did not follow the order should not be continued in relation to information not yet made public. On the contrary, the rationale of the original court decision still applies concerning any information not yet in the public domain, he said.

While there was no reason to believe RTÉ would not continue to act responsibly in this matter, as it had to date, it had not said it would give an undertaking to the court and Mr O’Brien and the IBRC should not be required to rely on its good intentions.

It was not unreasonable to infer RTÉ wished to leave open the possibility that it may publish information in its possession concerning Mr O’Brien and IBRC pending the full hearing of the businessman’s legal action, he said.

While Mr O’Brien may already have suffered damage as a result of information put into the public domain, that was not reason to suppose he might not suffer further damage if more of his confidential information was published, the judge said.

For all those reasons, he would not discharge the order in full but would amend it, he ruled.

The form of the order and costs issues will be addressed next week.