By Ann O'Loughlin
A seven judge Supreme Court will hear separate appeals this month by former Rehab CEO Angela Kerins and businessman Denis O’Brien.
Both appeals raise important issues about parliamentary speech and whether the courts have any power to intervene in relation to statements by politicians in the Houses and Committees of the Oireachtas.
Lawyers for the Oireachtas and State have said Ms Kerins’ appeal, to open on March 13th, involves an “unprecedented challenge” to parliamentary speech.
They maintain her ultimate goal is to render Oireachtas members accountable in damages for what is said by them when participating in the democratic process.
Ms Kerins’ lawyers dispute the primary remedy being sought is damages and maintain it is “critical” for her to have the courts order the removal of damaging opinions expressed about her by members of the Dáil Public Accounts Committee.
Ms Kerins appeal, listed for five days, is against the High Court’s rejection of her case over the PAC’s conduct of hearings concerning public monies paid to the Rehab group.
It will be followed on March 20th by the hearing of Mr O'Brien’s appeal , which concerns statements made in the Dáil about his banking affairs, because that raises a number of similar issues.
The Chief Justice, Mr Justice Frank Clarke, will preside over both appeals and will sit with Mr Justice Donal O'Donnell, Mr Justcie William McKechnie, Mr Justice John MacMenamin, Ms Justice Elizabeth Dunne, Ms Justice Iseult O'Malley and Ms Justice Mary Finlay Geoghegan.
Both appeals are expected to centre on whether the High Court judges who heard both cases correctly concluded Article 15 of the Constitution means parliamentarians cannot be sued over what they say in the Oireachtas or its Committees.
Appeals are only heard by the Supreme Court if they involve issues of general public importance or the interests of justice require an appeal be heard.
In the cases of Mr Kerins and Mr O’Brien, the Oireachtas and State parties accepted issues of general public importance are involved.
In her action, Ms Kerins claimed two PAC hearings on February 27th and April 10th 2014, where questions were asked about her €240,000 annual salary and other matters, amounted to a “witch hunt” against her.
The PAC argued it was entitled to scrutinise how public funds are spent when some €80m public monies are paid annually to Rehab companies.
Her appeal is against a three judge High Court decision that, because the Constitution confers absolute privilege on "utterances" in the Oireachtas , and the PAC was making no "determination" in relation to Ms Kerins, the courts cannot intervene in relation to how the two hearings were conducted.
She attended the first hearing on a voluntary basis and said the treatment of her was such she was too unwell to attend the second.
The High Court said, if Oireachtas members were constrained in their speech as Ms Kerins alleged, "the effective functioning of parliament would be impaired in a manner expressly forbidden in absolute terms by the Constitution".
The PAC has cross-appealed the High Court’s decision directing it to pay two thirds of Ms Kerins’ estimated €700,000 legal costs due the court’s concerns about the conduct of the PAC hearings.
The State has also cross-appealed a decision requiring it to pay its own costs of the High Court hearing.
In his appeal, Mr O'Brien wants the Supreme Court to overturn the High Court's dismissal of his case against the Dail and State over statements made in the Dail by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty about his banking affairs with State-owned Irish Bank Resolution Corporation.
The statements were made on separate dates in summer 2015 after Mr O'Brien had obtained court injunctions restraining RTÉ publicising that information.
The High Court’s Ms Justice Una Ni Raifeartaigh ruled that what Mr O’Brien sought would have a "chilling effect" on parliamentary speech into the future and upheld the core defence argument that Article 15 immunises Dáil "utterances" from suit or scrutiny by courts or tribunals.
Mr O’Brien is also appealing an order requiring him to pay the estimated €1m legal costs of his High Court action.