O'Brien v Radió Telefis Éireann

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Binchy
Judgment Date21 May 2015
Neutral Citation[2015] IEHC 397
Date21 May 2015
Docket Number[2015 Nos. 3350 &3364 P],[2015/3350P]

[2015] IEHC 397

THE HIGH COURT

Binchy J.

[2015/3350P]

[2015/3364P]

BETWEEN
DENIS O'BRIEN
PLAINTIFF
AND
RADIÓ TELEFIS ÉIREANN
DEFENDANT
BETWEEN
IRISH BANK RESOLUTION CORPORATION LTD
(IN SPECIAL LIQUIDATION)
PLAINTIFF
AND
RADIÓ TELEFIS ÉIREANN
DEFENDANT

Defamation & Libel – Interlocutory injunction – European Convention on Human Rights Act, 2003 – Art. 40.6 (i) of the Constitution – Freedom of speech – Confidentiality – Public interest

Facts: The plaintiff in the first proceedings sought an order for injunction restraining the defendant from publishing the documents concerning the plaintiff's personal banking arrangement with the plaintiff in the second proceedings, that is, the bank. The plaintiff contended that possession of said documents would be unconstitutional and breach of his right of privacy and it would cause irreparable damage to his reputation. The defendant contended that the disclosure of the information contained in the said documents was in the public interest as the plaintiff was granted extension of the repayment period of loans on the ground of his verbal agreement with the former CEO of the bank.

Mr. Justice Binchy granted an injunction in part to the plaintiff. The Court, however, refused to grant an order requiring the defendant to deliver up documents to the plaintiff. The Court held that prior to the grant of an injunction, Courts must indulge in a balancing exercise to ascertain whether the information sought to be disclosed concerned the private life of an individual or whether it was necessary for an informed public opinion. The Court was of the view that the Court would not grant an injunction to curtail the liberty of the press in defamation proceedings except under exceptional circumstances inviting the plaintiff to prove that he had a convincing case. The Court was of the view that the restriction imposed must be prescribed by law and necessary in a democratic society as envisaged under art. 10 (2) of the European Convention on Human Rights Act, 2003. The Court found that since there was no wrongdoing alleged on the part of the plaintiff and there being no issue of utmost public concern contained in the information, there would be no need to publish the relevant documents contrary to the breach of the duty of the banker to maintain confidentiality in its relation with the customer.

JUDGMENT of Mr. Justice Binchy delivered on the 21st day of May, 2015
The Proceedings
1

These two sets of proceedings above arise out of the same factual background. In his proceedings, Mr. O'Brien seeks, inter alia, an injunction restraining the defendant from making any use whatsoever (and in particular from making publication) of information falling within the categories of documents described in the plenary summons. These categories are as follows:

A. Any confidential documentation or information identifying or tending to identify or providing details of or relating to the plaintiff's personal banking arrangements with Irish Bank Resolution Corporation Ltd. ('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 personal facilities with IBRC; and

D. Any confidential documentation or information identifying or tending to identify the plaintiffs negotiations with IBRC regarding the terms of his personal facilities.

2

In its proceedings, IBRC seeks, inter alia, an injunction restraining the defendant from publishing or broadcasting any communications or information exchanged between the plaintiff and Mr. O'Brien in the course of their banker/customer relationship. Furthermore, IBRC seeks an injunction restraining the defendant from publishing or broadcasting any legal advice received by or given to the plaintiff concerning or arising from its banker/customer relationship with Mr. O'Brien. In the course of the proceedings, counsel for the defendant, Mr. Holland SC, did not dispute that any documentation or information comprising legal advice is subject to legal professional privilege and that that privilege is absolute.

3

In each case, the plaintiffs seek an order directing the defendant to deliver up to each of the plaintiffs all documentation in its possession arising out of the banker/customer relationship between IBRC and Mr. O'Brien and as more particularly described, in the case of Mr. O'Brien, all documentation described in and of the categories set out above. IBRC further seeks the delivery of all documents recording or indicating the fact or content of any legal advice received by or given to IBRC concerning or arising from its banker/customer relationship with Mr. O'Brien.

4

On 28th April, 2015, the defendant wrote to each of the plaintiffs requesting certain information concerning a debt due by Mr. O'Brien to IBRC. The letter, from a Ms. Pamela Fraher, researcher, stated that she had seen a letter of October 2013 from Mr. O'Brien to IBRC in which he claimed to have had an agreement with the previous management of IBRC to repay the outstanding balance of his loans over a three year period, as opposed to a one year period previously agreed. Ms. Fraher informed Mr. O'Brien and IBRC that she was working on a news report in relation to that request and that in the defendants' report it was intended to state that Mr. O'Brien had sought an extension of the repayment period of his loan, that this was agreed with IBRC management at the time, in particular Mr. Mike Aynsley, and that Mr. O'Brien or his companies benefited financially from these arrangements. Each letter then addressed a series of questions to each of the addressees which overlapped but are not identical in each case. However, it is not necessary for the purpose of these proceedings to set out those questions in full, not least because replies were not delivered by either plaintiff to the letters received by them from the defendant. Instead, each of the plaintiffs' solicitors replied to the defendant protesting that whatever documentation it had in its possession relating to their respective clients, that may have come into the possession of the defendant, had been received unlawfully and without the consent of the plaintiffs, and requesting the delivery of all such documentation to the solicitors for the plaintiffs. In addition, the solicitors for Mr. O'Brien asserted that the disclosure of the information and documentation to the defendant was a breach of Mr. O'Brien's rights to privacy and confidentiality and that any further breach by the defendant could not be justified by any countervailing public interest in disclosure. Mr. O'Brien's solicitors requested the defendant to undertake not to disclose any private and confidential information in relation to their client by a specified date. The defendant declined to comply with these requests and as a result of which the plaintiffs have issued these proceedings. Mr. O'Brien's proceedings were issued on the 30th April, 2015 and on the same date he issued a Notice of Motion seeking interlocutory relief, substantially in the terms of the relief claimed in the Plenary Summons. IBRC's motion was issued on 1st May, 2015 and on the same date it also issued a Motion seeking relief substantially in the terms of its Plenary Summons.

5

The application for an interlocutory injunction in each case came on for hearing before this Court on the 12th May, 2015 and concluded on 15th May, 2015. At the outset of the hearing, the Court heard an application made on behalf of counsel for Mr. O'Brien to restrict the reporting of these proceedings pending their determination. This application was made on the grounds that otherwise such reportage as would follow would render the application for injunctive relief moot. The defendant, recognised the sense of this application and while not consenting to it, did not robustly oppose it. In any event an order restricting (but not prohibiting) reportage of the proceedings was made on terms agreed between the parties.

The Affidavits
Affidavits in the O'Brien Proceedings
6

In his first affidavit grounding his proceedings, Mr. O'Brien complains that the defendant has come into possession of confidential information relating to Mr. O'Brien's personal banking arrangements with IBRC, without his authority, or the authority of anybody acting on his behalf, and in breach of his constitutional and legally protected rights to privacy and confidence. He asserts that if the Court permits the disclosure of this information he will suffer irreparable harm both personally and financially in terms of his personal business and financial affairs. Specifically, he avers in paragraph 18 of his affidavit of 30th April, 2015 as follows:

'I have extensive dealings with national and international institutions. My dealings with these institutions are confidential not only to me but also to the various institutions. To put it bluntly, I say and believe that these institutions would not like to see details of how they deal with customers such as me disclosed to the public domain. A belief on the part of these institutions that such eventuality was a possibility and that accordingly details of their dealings with their customers in relation to personal, private and confidential information would enter the public domain, would, I believe, impact on their willingness to engage and deal with me in relation to my personal, private and confidential banking arrangements. Whilst this is something I know to be correct, it is unlikely that I would ever be able to prove that this was the reason that a particular financial institution refused to deal with me...

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5 cases
  • O'Brien v Clerk of Dáil Éireann
    • Ireland
    • Supreme Court
    • 5 March 2019
    ...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 conf......
  • O'Brien v Raidió Teilifís Éireann
    • Ireland
    • High Court
    • 12 June 2015
    ...Athlone Institute of Technology [2011] IEHC 254, (Unreported, High Court, Hogan J., 14th June, 2011). O'Brien v. Raidió Teifilís Éireann [2015] IEHC 397, [2015] 2 I.R. 130. The Queen v. Cox and Railton (1884) 14 Q.B.D. 153. Injunction — Interlocutory injunction — Banking — Subsequent public......
  • Mr Y and the Medical Council
    • Ireland
    • Information Commission
    • 7 December 2016
    ...may be breached because of issues of very significant public importance (Binchy J., in the case of O'Brien v Radió Telefis Éireann [2015] IEHC 397 refers), where there is "some meaningful connection between the issue of public importance that has been identified, and firstly, those whose ri......
  • Mr X and The Department of Finance
    • Ireland
    • Information Commission
    • 19 November 2015
    ...detriment to the public interest in this case. Finally, I am also aware that Binchy J., in the case of O'Brien v Radió Telefis Éireann [2015] IEHC 397, found that a duty of confidence (albeit between a bank and its customers) "may give way to issues of very significant public importance, an......
  • Request a trial to view additional results

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