MICHAEL CLIFFORD: Denis O'Brien case is a big deal in terms of the functioning of our democracy

Big themes were explored yesterday in the High Court action Denis O’Brien is taking against the Oireachtas. 

Big guns were wheeled out to take on these big themes, and in Mr O’Brien they had a big target, as he is one of the wealthiest and most powerful individuals in the State.

Mr O’Brien is the only witness in this action in which he is claiming two TDs “clearly disregarded” the constitutional separation of powers when they made statements in the Dáil about his banking affairs. The TDs in question were Social Democrat Catherine Murphy, and Sinn Féin’s Pearse Doherty, who made their parliamentary utterances in May and June of last year. At the time, Mr O’Brien had secured an injunction to stop RTÉ broadcasting the same material.

Now, he wants the High Court to censure the TDs, and ensure that something of a similar nature can’t happen to another citizen in the future.

The separation of powers is a big theme. Should the courts have, in some circumstances, the right to stray across and condemn the Oireachtas for actually straying across into the court’s jurisdiction, as Mr O’Brien would have it?

That will ultimately be for the judge in this action, Úna Ní Raifeartaigh to decide. The hearing for such an important issue is taking place in Court 29 of the Four Courts which is hidden away on the top floor, far from the maddening commercial fare that takes up so much court time. The big guns include three of the top earning senior counsel, Michael Cush for Mr O’Brien, Maurice Collins for the state and Michael Collins for the Oireachtas.

The court was packed for yesterday’s appearance. Among the early arrivals was celebrity water protestor Derek Byrne, who once called the President a midget. Mr O’Brien is not popular among water protestors. Mr O’Brien entered the witness box at 11.05am. Early on, he told Mr Cush that at the time of the events in question, both he and his family had been subjected to a death threat. The news brought some levity to proceedings, serving as a reminder that real lives are lived behind the worlds of big business and big democracy.

There was much publicity around the matter at the time, as media organsations grappled with the decision on whether or not to publish the utterances. Mr O’Brien confirmed he or his solicitor had written to media organisations threating legal action in the event of publication.

His direct evidence was brief, as flagged, but he spent more than an hour under cross examination.

During that time, Michael Collins put it to him in a number of different questions that he wanted the court to censure the Dáil for the manner in which his private details had been made public under privilege.

“Your complaint is not directed only at the two deputies, but also at the members of the Dáil more generally for failing to do something (about the two deputies releasing the details),” the lawyer asked.

“You want the court to draw the conclusion that the failure of the Dáil amounted to unwarranted interference with the court,” he asked.

Mr O’Brien concurred. He said the reason he was taking the action was “to see if there is a way for this not to happen again for any citizen”.

Mr O’Brien ended up in the witness box for an hour and twenty minutes, which was longer than anticipated.

The two sides in this action would appear to be coming at the issue from different angles. In effect, Mr O’Brien wants the court to determine that it was wrong of the TDs to reveal his details as that interfered with a High Court order.

The Oireachtas and the State are constructing a defence that any such determination would amount to the judge claiming that the Oireachtas is answerable to the courts.

In terms of the functioning of a democracy the case is genuinely a big deal.

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Court grants RTÉ permission to broadcast all but two paragraphs of report on Denis O'BrienCourt grants RTÉ permission to broadcast all but two paragraphs of report on Denis O'Brien


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