Judge: O’Brien order would have ‘chilling effect’ on speech

Businessman Denis O’Brien has lost his High Court action over statements made by two TDs in the Dáil about his banking affairs after he had got court injunctions restraining RTÉ publicising that information.

Ms Justice Una Ni Raifeartaigh said what Mr O’Brien sought was prohibited by the separation of powers under the Constitution and would have a “chilling effect” on parliamentary speech.

Irrespective of the existence of court proceedings or how damaging what was said by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty, Article 15 of the Constitution confers immunity from legal proceedings on “utterances” made in the Dáil and on the member who makes them, she held.

The courts “simply do not have a role in policing parliamentary utterances” except perhaps in some exceptional circumstances, the nature of which were “hard to envisage”, and this case could not be regarded as exceptional.

She took that view with her “eyes wide open” to the fact what the TDs said rendered Mr O’Brien’s case against RTÉ concerning disclosure of his banking relationship with IBRC “almost entirely” pointless.

Mr O’Brien was not in court when the judge ruled yesterday on his case against the clerk of the Dail, the Dáil committee on procedures and privileges, and the State. Ms Murphy was in court.

The matter was adjourned for a week to allow the sides consider the 106-page judgment. Liability for costs of the case, estimated at some €1m, will be decided later.

In his action, Mr O’Brien alleged Ms Murphy and Mr Doherty “clearly disregarded” the constitutional separation of powers between parliament and the courts when they respectively made statements in the Dáil in May and June 2015. The statements, made after he took proceedings against RTÉ in April 2015 to restrain it publishing details of his banking relationship with State-owned IBRC, amounted to “unwarranted interference” in the judicial domain, he claimed.

The respondents argued the courts could not intervene as a result of “absolute immunity” conferred by Article 15 on utterances in the Dáil.

Ms Justice Ni Raifeartaigh said damage was done to Mr O’Brien, the information appeared to have been released in a “deliberate and considered” manner, and was “far from an accidental slip of the tongue”.

Having reviewed Irish legal authorities, including the recent judgment of the failed case by former Rehab CEO Angela Kerins, she ruled, by virtue of Article 15, the court could not intervene and also held decisions of the European courts and courts of other jurisdictions also did not assist Mr O’Brien.

The purpose of the declarations sought by Mr O’Brien was to get “judicial condemnation” of what the TDs said which would “cut through to the very heart of the immunity”.

It meant Mr O’Brien would be entitled to orders to prevent future utterances which he apprehended might breach a court order and might perhaps also be entitled to damages.

The court could not, as Mr O’Brien sought, draw dividing lines between “legitimate and illegitimate” speech in the Oireachtas.

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