O'Brien v Clerk of Dáil Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 03 November 2016
• Neutral Citation: [2016] IEHC 597
• Docket Number: [2015 No. 4888P],[2015 No. 4888 P]
• Court: High Court
• Date: 03 November 2016

BETWEEN

DENIS O'BRIEN

PLAINTIFF

AND

THE CLERK OF DÁIL ÉIREANN, SEAN BARRETT, JOE CAREY, JOHN HALLIGAN, MARTIN HEYDON, PAUL KEHOE, JOHN LYONS, DINNY McGINLEY, SEAN O'FEARGHAIL, AENGUS Ó SNODAIGH

AND

EMMET STAGG

(MEMBERS OF THE COMMITTEE ON PROCEDURE AND PRIVILEGES OF DÁIL ÉIREANN), IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2016] IEHC 597

Kelly P.

[2015 No. 4888P]

THE HIGH COURT

Constitution – Right of privacy for banking affairs – Practice & Procedures – O. 36, r. 58(1) of the Rules of the Superior Courts – Admissibility of expert evidence – Reasonableness – Discretion of Court

Facts: The plaintiff sought an order to the effect of adducing evidence of a renowned American constitutional law expert at the trial of the plaintiff's main claim for injunction to restrain the defendants from making any use of the documents pertaining to the personal banking arrangements of the plaintiff with the bank. The plaintiff claimed that since his right to privacy in relation to his banking affairs had been impinged, the said expert testimony was admissible at trial. The defendants argued that the plaintiff's claim was not justiciable.

Mr. Justice Kelly P. held that the relevant expert evidence relied on by the plaintiff was inadmissible. The Court held that a bare perusal of the Statement of Claim filed by the plaintiff revealed that he asserted breach of rights in the jurisdiction of Ireland and the same could be redressed without having to involve a foreign law expert. The Court observed that since the plaintiff had placed no reliance on American jurisprudence except citing a few cases, there was no need to include the relevant expert testimony. The Court noted that the said expert testimony was not required for the determination of real issues between the parties. The Court held that o. 36, r. 58(1) of the Rules of the Superior Courts gave the power to the Court to restrict the admissibility of evidence to the extent of which it was reasonable for fair determination of the real dispute between the parties.

JUDGMENT of Mr. Justice Kelly , President of the High Court delivered on the 3rd day of November, 2016

Introduction

1 Two questions arise for consideration on this application.

2 The first is whether evidence from the distinguished American constitutional law expert Professor Laurence Tribe, which the plaintiff wishes to adduce, is admissible on the trial of this action.

3 If that question is answered in favour of the plaintiff, is such evidence ' reasonably required to enable the court to determine the proceedings'? (O. 36, r.58(1) of the Rules of the Superior Courts). Unless that question is answered in the affirmative the plaintiff will not be entitled to adduce the evidence.

4 These matters fall to be considered in the context of the issues which the court will have to decide at trial. In order to identify these issues, I turn to a consideration of the pleadings which have been exchanged between the parties.

The Statement of Claim

5 In his amended statement of claim delivered on 14th July, 2015 the plaintiff alleges as follows:-

'1. The plaintiff is a citizen of the State. He is a businessman with extensive investments across several sectors including international telecoms, radio, media, property, aircraft leasing, golf, recruitment, fuel import and supply, hotels and industrial services and other interests. He resides at Apartment 401, White Mansions, Ghar-id-dud St, Sliema, slm 1573, Malta.

2. As a citizen of the State, the plaintiff has a constitutional right of privacy which extends to, and includes, the privacy and confidentiality of information pertaining to his banking affairs. This right of privacy and confidentiality also exists under the common law, under Statute and under the European Convention on Human Rights and Fundamental Freedoms as incorporated into the domestic law of the State by the European Convention on Human Rights Act 2003.

3. As a citizen of the State, the plaintiff has a constitutional right of access to the Courts established by the Constitution. This right of access to the Courts also exists under the European Convention on Human Rights and Fundamental Freedoms to which domestic effect is given by the European Convention on Human Rights Act 2003.

The Defendant

4. The first named defendant is the Clerk of Dáil Éireann and is joined in a representative capacity as representing the members of Dáil Éireann.

5. The second through to the eleventh named defendants are the members of the Committee on Procedure and Privileges of Dáil Éireann.

6. The twelfth named defendant is the juristic person liable to ensure that the Oireachtas does not interfere with the courts in a purely judicial domain.

7. The thirteenth named defendant is the Law Officer of the State designated by the Constitution of Ireland. The said defendant is joined herein for the purpose of effecting service upon the twelfth named defendant.

The Plaintiff's proceedings against Radio Teilifís Éireann

8. On or about 29th April, 2015, the plaintiff received a letter from Radio Teilifís Éireann (RTE), dated 28th April, 2015, making a number of assertions regarding his private and confidential banking arrangements and facilities with the Irish Bank Resolution Corporation Ltd (IBRC). The letter sought a number of confirmations and ultimately advised of its intention to broadcast information concerning the plaintiff's private and confidential banking affairs in a broadcast scheduled for transmission on 1st May, 2015. The plaintiff did not provide this information to RTE. Nor was it provided by anyone acting on the plaintiff's behalf or with his permission or authority.

9. On 30th April, 2015, the plaintiff exercised his right of access to the Courts and issued proceedings entitled Denis O'Brien v. Radio Teilifís Éireann [2015 No. 3350P], to protect the confidentiality of the said information.

10. In the plenary summons, the plaintiff sought, inter alia, an injunction restraining RTE, its servants or agents or otherwise whosoever from making any use whatsoever (and in particular from making publication of):-

(a) any confidential documentation or information identifying or tending to identify or providing details of or relating to the plaintiff's banking arrangements with IBRC;

(b) any confidential documentation or information identifying or tending to identify or providing details of or relating to any transactions on the plaintiff's personal accounts with IBRC;

(c) any confidential documentation or information identifying or tending to identify or providing details of or relating to the terms of the plaintiff's facilities with IBRC;

(d) any confidential documentation or information identifying or tending to identify the plaintiff's negotiations with IBRC regarding the terms of his facilities.

11. Wrongfully, and in breach of the plaintiff's constitutional right to have the said justiciable controversy determined by the courts of the State, and in breach of Article 6 and of Articles 34-37 inclusive of the Constitution, which vest in the courts of the State the sole and exclusive right to determine the said justiciable controversy, the Oireachtas interfered in the operation of the Courts in its purely judicial domain by substantially determining the said justiciable controversy before the matter had been determined by the courts.'

6 The statement of claim then sets out the particulars of wrongdoing alleged against the defendants. This is what it says:-

'(a) On 30th April, 2015, the plaintiff issued a notice of motion seeking interlocutory relief substantially in terms of the relief claimed in his plenary summons.

(b) The issue of the said proceedings and the said interlocutory application received widespread publicity in the broadcast and print media, both national and local, as well as on various social media and internet fora.

(c) Subsequent to the issue of the said proceedings and the said interlocutory application (but prior to the hearing of the said application), on 6th May, 2015, a Dáil deputy, Deputy Catherine Murphy, published details of the said confidential information during the course of a debate on a Private Members Motion on the Sale of Siteserv under parliamentary privilege in Dáil Éireann.

(d) The effect of the said publication was to interfere in the proceedings which were then pending before the courts and to determine in part the justiciable controversy then pending before the courts in the said proceedings. This was acknowledged by the plaintiff when his application for interlocutory relief came on for hearing before the High Court on 12th May, 2015.

(e) On 12th May, 2015, the High Court made an order restricting but not prohibiting reportage of the proceedings on terms agreed between the parties on the grounds that otherwise such reportage as would follow would render the plaintiff's application for injunctive relief moot.

(f) On 21st May, 2015, the High Court delivered judgment on the plaintiff's application in which it concluded that the plaintiff had established a convincing case that he would succeed in obtaining the reliefs claimed in the plenary summons at the full trial of the hearing. As damages would not be an adequate remedy, the High Court granted the plaintiff's application for an interlocutory injunction. The order of the court, which was drawn up and perfected on 21st May, 2015, granted the plaintiff an interlocutory injunction directed to the defendant its servants or agents or any person having notice of the injunction and restrained the publication of any confidential documentation or information identifying or tending to identify or providing details of or relating to the plaintiff's personal banking arrangements with IBRC. The terms of the said order specifically excluded the information disclosed by Deputy Catherine Murphy under parliamentary privilege in Dáil...