Mahon and Others v Keena

• Jurisdiction: Ireland
• Judgment Date: 23 October 2007
• Neutral Citation: [2007] IEHC 348
• Date: 23 October 2007
• Court: High Court

[2007] IEHC 348

THE HIGH COURT

(Divisional Court)

JOHNSON P.

KELLY J.

O'NEILL J.

[No. 125SP/2007]

Mahon & Ors v Keena & Kennedy

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 4 OF THE TRIBUNALS OF

INQUIRY (EVIDENCE) (AMENDMENT) ACT, 1997 AS AMENDED BY SECTION 3 OF THE

TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT) ACT, 2004

BETWEEN

HIS HONOUR JUDGE ALAN P. MAHON HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD B. KEYS, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

PLAINTIFFS

AND

COLM KEENA AND GERALDINE KENNEDY

DEFENDANTS

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 2004 S3

CONSTITUTION ART 40.6.1.i

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(1)

OBLIQUE FINANCIAL SERVICES LTD v PRODUCTION CO LTD 1994 1 ILRM 74

KIBERD v GOODMAN 1992 2 IR 257, 1992 ILRM 574

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1979 S4

HAUGHEY v MORIARTY 1999 3 IR 1

O'CALLAGHAN v MAHON 2006 2 IR 32

O'CALLAGHAN v MAHON UNREP SUPREME 30.3.2007 2007 IESC 17

MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST UNREP KELLY 4.10.2005 2005/37/7699 2005 IEHC 307

MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST UNREP SUPREME 29.3.2007 2007 IESC 15

COMMONWEALTH OF AUSTRALIA v JOHN FAIRFAX & SONS LTD 147 CLR 39

SUNDAY TIMES v UK 1979 2 EHRR 245

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)LINGENS v AUSTRIA 1986 8 EHRR 407

CASTELLS v SPAIN 1992 14 EHRR 445

GOODWIN v UNITED KINGDOM 1996 22 EHRR 123

DE HAES & GIJSELS v BELGIUM 1997 25 EHRR 1

FRESSOZ & ROIRE v FRANCE 2001 31 EHRR 28

TROMSO v NORWAY 2000 29 EHRR 125

RADIO TWIST SA v SLOVAKIA UNREP ECHR 19.12.2006 (APP NO 62202/00)

TONSBERGS BLAD AS & HAUKOM v NORWAY UNREP ECHR 1.3.2007 (APP NO 510/04)kWIECIEN v POLAND UNREP ECHR 9.1.2007 (APP NO 51744/99)

USTUN v TURKEY UNREP ECHR 10.5.2007 (APP NO 37685/02)

ASHWORTH HOSPITAL AUTHORITY v MGN LTD 2002 1 WLR 2033

TRIBUNAL OF INQUIRY

Confidentiality

Confidential documents - Leak - Powers of tribunal to inquire into leak of confidential documents - Freedom of expression - Privilege against disclosure of journalistic sources - Whether tribunal had powers to order journalists to answer questions relating to leak of confidential documents - Kiberd v Hamilton [1992] 2 IR 257 applied; Commonwealth of Australia v John Fairfax & Sons Ltd [1980] 147 CLR 39 distinguished - Relief granted (2007/125Sp - HC Div - 23/10/2007) [2007] IEHC 348

Judge Mahon v Keena

The plaintiffs were members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The first defendant was a journalist employed by the Irish Times and the second defendant was the editor of that paper. This decision concerned inter alia whether the Tribunal had a legal power to conduct an inquiry to ascertain the source of a leak of documents that were furnished to the Irish Times.

Held by the Divisional Court of the High Court (Johnson P., Kelly and O’Neill JJ) in granting the relief sought that the Tribunal had a legal power to conduct an inquiry to ascertain the source of the leak. The defendants’ privilege against disclosure of sources was overwhelmingly outweighed by the pressing social need to preserve public confidence in the Tribunal.

Reporter: RW

1 JUDGMENT of the Court delivered on the 23rd day of October, 2007 .

2 The plaintiffs are the Members of the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter referred to as "the Tribunal") established pursuant to Resolution of Dáil Éireann passed on 7th October, 1997 and by Instruments of the Minister for the Environment and Local Government of 4th November, 1997, 15th of July, 1998, 24th October, 2002, 7th July, 2003 and 3rd December, 2004.

3 The first defendant is a journalist employed by the Irish Times and the second defendant is the editor of that paper.

4 On 29th June, 2006, as part of its private investigations the Tribunal wrote to Mr. David McKenna seeking information in relation to certain payments made to An Taoiseach, Mr. Ahern, T.D. The envelope which contained this letter was marked " strictly private and confidential - to be opened by addressee only".

5 The final paragraph of the letter read as follows:

" This inquiry is being made of you as part of the Tribunal's confidential inquiry in private. The fact of this letter or its content should not be disclosed to any third party save your legal adviser, if you should choose to seek legal advice in respect of this request."

6 On 19th September, 2006 the first defendant received, unsolicited and anonymously, a communication concerning payments to An Taoiseach in 1993 when he was Minister for Finance. This communication took the form of a copy of the letter of 29th June, 2006 from the Tribunal to Mr. McKenna and at least one other document, being a copy of the reply to this letter from a solicitor for Mr. McKenna.

7 Thereafter the first defendant during 19th and 20th September, 2006 sought to verify the accuracy of the information received. During this time the first defendant discussed the matter with the second defendant on a number of occasions. As a result of all this the first defendant wrote and the Irish Times published on 21st September, 2006, a report under the headline " Tribunal examines payments to Taoiseach", on the front page. This report read as follows:

" A wealthy businessman, David McKenna, has been contacted by the Mahon Tribunal about payments to the Taoiseach, Bertie Ahern."

8 The Tribunal is investigating a number of payments to Mr. Ahern in or around December, 1993 including cash payments, the Irish Times has learned.

9 Mr. McKenna is one of three or four persons contacted by the Tribunal concerning payments to Mr. Ahern totalling between €50,000 and €100,000. The Tribunal has been told that the money was used to pay legal bills incurred by Mr. Ahern around this time. In a letter to Mr. McKenna in June of this year and seen by the Irish Times he was told the 'tribunal has been informed that you made payment of money to Mr Bertie Ahern, TD, or for his benefit, in or about December 1993.

10 'The tribunal seeks your assistance in reconciling certain receipts of funds by Mr Ahern during this period.'

11 The tribunal requested a detailed statement from Mr McKenna. He was asked to name the person who requested the payment and his understanding as to why it was required. He was also asked who the payment was given to and whether it was in cash or another form.

12 It is understood a solicitor who was an associate and personal friend of Mr Ahern's, the late Gerry Brennan, may have played a role in the matters being inquired into. Mr Brennan, a former director of Telecom Éireann, died in 1997.

13 Mr McKenna, a friend of Mr Ahern's and a known supporter of both him and his party, was estimated to be worth more than €60 million a number of years ago. However, his publicly-listed recruitment firm, Marlborough Recruitment, collapsed in 2002.

14 Mr McKenna is also a friend and business associate of Des Richardson, the businessman appointed by Mr Ahern in 1993 as full-time fundraiser for Fianna Fáil and who also fundraises for Mr Ahern's constituency operation. The tribunal was told in private that Mr McKenna was one of the people who made a payment to Mr Ahern.

15 Special adviser to the Taoiseach Gerry Howlin was not available for comment as he was on leave.

16 When contacted by The Irish Times the Government press secretary, Mandy Johnston, passed the query on to the Fianna Fáil press officer Olivia Buckley, who said Mr Ahern did not comment on tribunal matters.

17 Mr McKenna, when asked about the matter, said: 'Contact my solicitor.' His solicitor said he had no comment.

18 The Mahon tribunal and Mr Ahern are scheduled to make representations about the matter before the President of the High Court, Mr Justice Joseph Finnegan, next month.

19 In December 1993, Mr Ahern was Minister for Finance and Fianna Fáil treasurer.

20 The inquiries into Mr Ahern's finances are understood to have begun after allegations were made about supposed payments to him by property developer Owen O'Callaghan in relation to the Quarryvale development in west Dublin.

21 Both Mr Ahern and Mr O'Callaghan have stated publicly that no such payments were made.

22 …"

23 As is apparent, this report quoted from the contents of the letter of 29th June, 2006 from the Tribunal to Mr. McKenna.

24 A disclosure of the contents of this letter was unauthorised by the Tribunal.

25 On the evening of 21st September, 2006, the Tribunal wrote to the second defendant expressing concern that the report appeared to be based on a letter from the Tribunal that was strictly private and confidential and it was claimed that the publication of this material was in breach of an injunction granted by the Supreme Court on 7th October, 2005.

26 By a letter of 29th September, 2006 the second defendant replied, inter alia, as follows:

"… the circumstances of this matter are straightforward. The Irish Times received an unsolicited and anonymous communication that I considered an important matter in the public interest for this newspaper to verify and publish. The vital issue of public interest which I considered I had a duty to publish was that the Taoiseach, Mr. Ahern, whilst a serving minister was in receipt of certain payments of money. The fact of these payments is a matter that this newspaper has a proper interest in publishing.

This is not a situation where an allegation of a payment has been made that is denied or is false. The fact of these payments is admitted. …

...