O'Brien v Clerk of Dáil Éireann

 
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[2019] IESC 12

THE SUPREME COURT

The Court

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

O'Malley Iseult J.

Finlay Geoghegan J.

Record No. 91/17

Between/
Denis O'Brien
Plaintiff/Appellant
AND
Clerk of Dáil Éireann, Sean Barrett, Joe Carey, John Halligan, Martin Heydon, Paul Kehoe, John Lyons, Dinny McGinley, Sean Ó Fearghail, Aengus Ó Snodaigh

and

Emmet Stagg (Members of the Committee on Procedure and Privileges of Dáil Éireann), Ireland

and

the Attorney General
Defendants/Respondents

Injunction – Breach of privacy – Public disclosure – Appellant seeking to challenge the decision of the Committee on Procedure and Privileges of Dáil Éireann – Whether the challenge would amount to an indirect or collateral challenge to utterances made in the Dáil

Judgment of the Court delivered by Mr. Justice Clarke , Chief Justice on the 5th March, 2019
1. Introduction
1.1

This judgment was to be delivered on the same day as the judgment of an identically constituted panel of this Court in Kerins v. McGuinness & ors. [2018] IESC. However, for reasons unconnected with the issues which arise in both cases, it was considered desirable to delay the delivery of the judgment in this case by 6 days until today. While there are significant differences between the two cases, there is also a common constitutional background as both appeals involve the limits of the Court's jurisdiction to deal with matters arising in the Houses of the Oireachtas in circumstances where a citizen alleges that constitutional rights have been infringed.

1.2

For those reasons, the Court considered it appropriate to put in place procedures which recognised the overlap in issues between the two appeals and the potential that the argument in either one, and the Court's conclusions on that argument, might have the potential to influence the proper resolution of the other. The detail of those procedures is set out in the judgment in Kerins and it is unnecessary to repeat it here.

1.3

Furthermore, for reasons which will become apparent, at least some of the conclusions reached in Kerins have application to the issues which arise on this appeal. As a result of the procedures just mentioned all sides to this appeal had access to the full argument in Kerins and had the opportunity to make such submissions as they considered appropriate in relation to any of the issues which were common to both cases. Likewise, the parties to Kerins had a similar opportunity. In those circumstances, it is clear that, insofar as common issues arose across both appeals, all parties to each appeal had a full opportunity to be heard so that the conclusions on those common issues are equally applicable to both cases. For those reasons it is unnecessary, for the purposes of this judgment, to restate in any detail the argument in relation to those common issues or the reasons why those issues were resolved as they were in Kerins. Rather, for the purposes of this judgment, the Court will simply reiterate its conclusions in Kerins on those issues which are common to both appeals.

1.4

That being said, there are significant differences between the circumstances of both cases. The background to these proceedings stems from the concerns of the plaintiff/appellant (‘Mr. O'Brien’) about certain statements made in the Dáil by Deputies Murphy and Doherty. While it will be necessary to set out the facts in more detail in due course, in simple terms Mr. O'Brien's complaint is that he had persuaded the High Court to grant an injunction restraining, on a temporary basis, on grounds of alleged breach of privacy, the public disclosure of certain financial information concerning his affairs. It is said that the advantage of having obtained that temporary injunction was completely negatived by the revelation in the Dáil of the information concerned.

1.5

Thereafter, Mr. O'Brien complained to the second to eleventh named defendants/respondents in their capacity as the members of the Committee on Procedure and Privileges of Dáil Éireann (the ‘CPP’). An important part of Mr. O'Brien's case relates to the manner in which that complaint was dealt with. Ireland and the Attorney General were separately represented at the appeal and adopted a position on the broad constitutional issues which was the same as that adopted by the CPP.

1.6

Mr. O'Brien's case was dismissed in the High Court (Ní Raifeartaigh J.) ( O'Brien v. Clerk of Dáil Éireann & ors. [2017] IEHC 179). As is clear from that judgment, Ní Raifeartaigh J. placed reliance on the judgment given by a Divisional High Court in Kerins v. McGuinness & ors. [2017] IEHC 34, thus emphasising the material overlap between at least some of the issues which arise respectively in both proceedings.

1.7

Mr. O'Brien has appealed to this Court against the decision of Ní Raifeartaigh J. In order to set out in greater detail the precise issues which arise on this appeal it is appropriate to turn first to the facts.

2. The Facts
2.1

These proceedings arose out of earlier proceedings initiated by Mr. O'Brien against RTÉ. On the 30th April 2015, Mr. O'Brien was granted short service of a motion directed to RTÉ seeking an injunction restraining RTÉ from making any use whatsoever, and in particular making publication, of any confidential documentation or information relating to his personal banking arrangements with Irish Bank Resolution Corporation Limited (‘IBRC’). That application was adjourned for hearing to the 12th May 2015. The application received widespread publicity.

2.2

On the 6th May 2015, during the course of a Dáil debate on a Private Members Motion on the sale by IBRC of Siteserv, Deputy Murphy made certain utterances, including a reference to the plaintiff by name in the context of the sale of Siteserv. She asserted certain facts in connection with loans he had with IBRC, namely that he was one of the largest debtors of IBRC, that his loans had expired and that he had written to the special liquidator of IBRC, Kieran Wallace, seeking to pay off his loans in his own time at low interest rates. The acting Ceann Comhairle made a number of interventions requesting Deputy Murphy not to use names.

2.3

The interlocutory injunction application was heard by Binchy J. in the High Court from the 12th to the 15th May 2015. An order was made on the first day of the hearing restricting the reporting of the proceedings in terms agreed by the parties. At the hearing on the 12th May 2015, Mr. O'Brien conceded that he could no longer seek relief from the Court in respect of the particular matters that Deputy Murphy had already put into the public domain through her utterances in the Dáil on the 6th May 2015.

2.4

On the 20th May 2015, Mr. O'Brien wrote directly to the Ceann Comhairle regarding the comments which had been made by Deputy Murphy on the 6th May 2015. Mr. O'Brien complained that Deputy Murphy ‘persisted in making false and inaccurate statements to the Dáil about my personal banking arrangements based on confidential information which she knew to have been stolen.’ The letter later stated, ‘I also wish to record the fact that no Deputy should be permitted to deliberately abuse parliamentary privilege particularly when the content of such abuse is inaccurate and is based on information or material that a Deputy knows to have been improperly obtained.’ Mr. O'Brien requested to be informed of what steps would be taken to ensure that ‘no Deputy will be allowed to deliberately and knowingly breach the privilege afforded to them by virtue of the position they hold and their presence in the Dáil chamber.’

2.5

On the 25th May 2015, the Ceann Comhairle acknowledged Mr. O'Brien's letter, advising that standing order 59 was of relevance and that he had referred the matter to the clerk of the CPP.

2.6

On the 21st May 2015, the High Court, for reasons set out in a judgment (Binchy J.) ( O'Brien v. Radió Telefis Éireann [2015] IEHC 397), granted the injunctive relief sought by Mr. O'Brien restraining RTÉ from disclosing and in particular from making publication of any confidential documentation or information identifying or tending to identify or providing details of or relating to the Mr. O'Brien's personal banking arrangements with IBRC. In light of the concession made by Mr. O'Brien on the first day of the hearing, the order excluded those matters put into the public domain by Deputy Murphy on the 6th May. This decision also received widespread media attention.

2.7

On the same day, Deputy Murphy issued a statement on her website and on Twitter, stating:-

‘there is nothing I can say about the issues of the case because of the extremely wide-ranging injunction but what I can say is that there are very serious implications here for the freedom of the press and how we proceed on this matter is crucial for future reporting and democratic process in this country.’

2.8

On the 27th May 2015, during her contribution to a motion in Dáil Éireann relating to the disposal of shares in Aer Lingus, Deputy Murphy again referred to Mr. O'Brien in the context of the proposed review into IBRC. She referred to the fact that the special liquidator assigned to conduct the review had joined Mr. O'Brien in his proceedings against RTÉ. No intervention was made by the Ceann Comhairle at any time during her contribution on this occasion.

2.9

On the 28th May 2015, during the debate on the Comptroller and Auditor General (Amendment) Bill 2015 in Dáil Éireann, Deputy Murphy again raised the issue of the review of the Siteserv sale to be carried out by the special liquidator...

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