Denis O’Brien wants power demarcated

Businessman Denis O’Brien wants the courts to “clearly demarcate” the powers of the Oireachtas and courts in his “unique” action over Dáil statements by two TDs about his banking affairs, the High Court has heard.

The case is “unique in the history of the State” because nobody has previously sued alleging statements made by TDs in the Dáil effectively decided the outcome of court proceedings, Michael Cush SC said.

Those statements showed “clear disregard” for the separation of powers between the legislature, executive and judiciary guaranteed by the Constitution and Mr O’Brien wanted the court to decide “where the boundary lies”.

Social Democrats TD Catherine Murphy was “reckless at minimum” in what she had said and both she and Sinn Féin TD Pearse Doherty trespassed on the judicial domain in their Dáil statements, he argued.

That was not remedied by the Oireachtas itself and, when faced with this case, the State argued the courts cannot intervene due to the separation of powers, counsel said. The courts could, and should, intervene, he argued.

Mr Cush was opening Mr O’Brien’s action against the Dáil Committee on Procedure and Privileges (CPP) and the State over statements made in the Dáil in May and June 2015 respectively by deputies Murphy and Doherty about his banking affairs with the State-owned Irish Bank Resolution Corporation.

The businessman wants the court to declare those statements substantially determined his case aimed at preventing RTÉ publishing that information, breached his rights and constituted “unwarranted interference” with the judicial domain.

He also wants declarations the CPP’s rejection of his complaints about the TDs’ statements was based on an incorrect interpretation of Dáil standing orders and breached his rights to fair procedures.

The defendants deny that Mr O’Brien is entitled to the declarations and plead the court is not entitled to intervene.

The action, before Ms Justice Una Ni Raifeartaigh, is listed to last seven days. Mr O’Brien, the sole witness, will begin evidence tomorrow and will be a short witness, the judge heard.

Yesterday Mr Cush said Ms Murphy, when she made the disputed statements in the Dáil in May 2015, knew Mr O’Brien then had proceedings against RTÉ aimed at preventing publication of information on his banking affairs and had obtained an injunction restraining publication until his full case was decided.

Tweets and statements by the TD showed “clear disregard” for the court proceedings, Mr Cush said.

She was clearly “fully conscious” of the injunction but “reckless at minimum” about the effect of what she had to say. Her primary concern was not for the legislative process but about the extent of the injunction and what it meant for “freedom of the press” and she wanted to ensure “this got out as fast and as wide as possible”, he said.

Mr O’Brien made similar complaints over the Dáil statements by Mr Doherty relating to the businessman’s banking relationship with IBRC, counsel added.

Following formal complaints by Mr O’Brien, the CPP later decided neither Deputy had breached the standing orders governing debates in the Oireachtas in their remarks.

Counsel said the separation of powers was central to the claims of all sides in this case. The State’s case was the very separation of powers renders Mr O’Brien’s claim non-justicable, TDs have absolute privilege and, even if they did trespass on the courts’ domain, there was “nothing” the courts can do.

The court heard Mr O’Brien is advancing two core arguments:

• The separation of powers was breached by the Dáil statements of the two TDs;
• The courts are entitled to intervene and to address Mr O’Brien’s complaints.

There was a “separate” debate about what being “amenable” to a court means, counsel said.

Mr O’Brien was not trying to make the TDs amenable to the court and had not joined them to the case. His action was about getting declarations, not damages, and Article 15.13 did not prevent the court dealing with this matter, he argued.