O'Brien v Raidió Teilifís Éireann

JudgeMr. Justice Binchy
Judgment Date12 June 2015
Neutral Citation[2015] IEHC 379
Docket Number[2015 Nos. 3350 & 3364 P],[2015/3350P] [2015/3364P]
CourtHigh Court
Date12 June 2015

[2015] IEHC 379




Defamation & Libel – Interlocutory injunction – Vacation of order – Disclosure of information – Whether legal professional privilege applied to information in public domain

Facts: Following the earlier order of the Court granting an injunction to the plaintiff in the first proceedings against the defendant concerning the publication of said plaintiff's personal banking arrangement with the bank, the defendant now sought the vacation of the said order. The defendant contended that the information referred to in the script now existed in public domain, and hence could not be saved by the said injunction. The said plaintiff contended that the existing order not only protected the information contained in the script but also all confidential information relating to the plaintiff's personal banking arrangements with the bank. The said plaintiff contended that the information contained in the script had been derived from legal advice and thus, it was privileged and could not be published.

Mr. Justice Binchy refused to grant an order to the defendant for vacating the said order. The Court however, called for amendment of the said order. The Court held that before embarking upon any exercise to curtail the legal privilege, the Court must ensure that there existed pressing social need. The Court observed that any deviation from that rule would imperil the rights of a citizen to seek legal advice with the trust that it would always be protected. The Court held that since the defendant had refused to divulge the details of the information that it had in its possession, the vacation of said order would cause irreparable damage and injustice to the plaintiff in the first proceedings.

Ex tempore JUDGMENT of Mr. Justice Binchy delivered on the 12th day of June, 2015

By notice of motion dated 2nd June, 2015, the defendant in each of these proceedings seeks to vary the court order already made in each case on 21st May, 2015.


The application arises out of developments since the order of the court on 21st May, 2015 and in particular,

(1) certain utterances made by Catherine Murphy TD on 27th May, 2015 and 28th May, 2015. The order was already varied on 2nd June to reflect these utterances;

(2) a statement of Mr. Mike Aynsley of 28th May 2015 and;

(3) other information in the public domain.

The motion came on for hearing before the Court on 10th June, 2015, and on the evening before the hearing Deputy Pearse Doherty TD made further utterances in Dáil Éireann which counsel for the defendants contended, and with which counsel for Mr. O'Brien agreed, further altered the background against which the original order was made.


Arising out of this the following variations to the existing court orders were agreed:

1. The original court order should no longer apply to the statement of Mr. Mike Aynsley dated 28th May, 2015 (as per the relief sought in paragraph 2(c) of the Notice of Motion),

2. The order sought should be amended to afford the relief sought in paragraph 2(d) of the Notice of Motion save that that paragraph should be amended so that it simply refers to information, previously determined by the Court to have been confidential to Denis O'Brien in circumstances where that information is in the public domain, with the remainder of that paragraph of the Notice of Motion to be deleted.


Counsel for Mr. O'Brien further agreed that, as far as Mr. O'Brien is concerned, all of the information referred to in the script of the broadcast proposed to be made by the defendant and which is of concern to Mr. O'Brien, is now in the public domain and accordingly Mr. O'Brien no longer seeks to prevent the broadcast of the contents of that script.


However, counsel for IBRC, Mr. Fitzpatrick BL, submits to the Court that insofar as any of the content of the proposed script relates to matters which are the subject of legal professional privilege, that those parts of the script should continue to be the subject of the court order. Counsel for the defendant, Mr. Holland SC, submits that while legal professional privilege is absolute, it cannot extend to information that is already in the public domain.


Counsel for the defendant further submits that the court order should be vacated in its entirety at this stage for the following reasons:-

1. There is no longer any purpose served by the existing order, in view of the extent of information now in the public domain and the order should not be held as a 'sword of Damocles' over the defendant in particular and the media in general;

2. Everything which the defendant originally intended to publish is now in the public domain and there is no point in seeking to injunct that publication.

3. The defendant has at all times behaved responsibly in regard to the matter. In light of the Court's findings in relation to the plaintiffs' right to confidentiality in his banking documentation, the defendant is aware of its obligations, and having regard to the manner in which it has dealt with the matter to date, there is no reason to believe that it will not continue to act responsibly or do anything to intrude upon the interests of the plaintiff, pending a full hearing of the proceedings.

4. The Court should have regard to Article 10 of the European Convention on Human Rights and should not continue an order of prior restraint in circumstances where, in the submission of the defendant, it is no longer necessary, and there is no pressing social need to do so.

5. As far as the IBRC is concerned, while it is acknowledged that legal advice benefits from absolute privilege, once the information to which that legal advice relates is in the public domain, the privilege is spent and should not be subject to an order of restraint.


While the defendant originally intended, in support of this application, to give an undertaking to the Court not to publish any confidential material not previously in the public domain relating to the plaintiffs' personal banking arrangements with IBRC (subject to certain terms), the defendant is no longer willing to give that undertaking in view of the intervention in Dáil Éireann last evening of Deputy Pearse Doherty TD. The defendant is concerned that even an undertaking, while less coercive than an injunction, leaves it susceptible to the processes of contempt of court in the same way as if an injunction is breached.


In summary, it is the submission of the defendant that since the very information the publication of which the plaintiff sought to restrain is now in the public domain, the continuance of the court order cannot be justified and nor therefore can the defendant reasonably be expected to give an undertaking to...

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