Patrick McKillen v Times Newspapers Ltd &

• Jurisdiction: Ireland
• Judge: Mr. Justice Colm Mac Eochaidh
• Judgment Date: 30 March 2013
• Neutral Citation: [2013] IEHC 150
• Court: High Court
• Date: 30 March 2013

[2013] IEHC 150

THE HIGH COURT

[No. 28/IA/2013]

[No. 29/IA/2013]

McKillen v Times Newspapers Ltd & Tighe

BETWEEN

PATRICK MC KILLEN

PLAINTIFF

-AND-

TIMES NEWSPAPERS LIMITED AND MARK TIGHE

DEFENDANTS

-AND-

DENIS O'BRIEN

-AND-

TIMES NEWSPAPERS LIMITED AND MARK TIGHE

NATIONAL IRISH BANK LTD & NATIONAL IRISH BANK FINANCIAL SERVICES LTD v RADIO TELIFIS EIREANN 1998 2 IR 479 1998 2 ILRM 196 1998/27/10780

LION LABORATORIES LTD v EVANS 1985 QB 526 1984 3 WLR 539 1984 2 AER 417

OKUNADE v MIN FOR JUSTICE & ORS 2013 1 ILRM 1 2012 IESC 49

MURRAY v NEWSGROUP NEWSPAPERS LTD & ORS 2011 2 IR 156 2011 1 ILRM 90 2010/39/9780 2010 IEHC 248

INJUNCTIONS

Interlocutory injunction

Application to restrain intended publication of confidential banking information - Freedom of expression - Freedom of press - Presumption in favour of allowing publication - Test to be applied - Murray v Newsgroup Newspapers Ltd [2010] IEHC 248, [2011] 2 IR 156 followed - Lion Laboratories Ltd v Evans [1985] QB 526 and National Irish Bank Ltd v Radio Telefís Éireann [1998] 2 IR 465 considered - Limited injunction granted (2013/28IA - MacEochaidh J - 30/3/2013) [2013] IEHC 150

McKillen v Times Newspapers Ltd

Facts: The Court considered an application for an interlocutory injunction arising out of proceedings instituted by two plaintiffs relating to an intended publication of certain information which the plaintiffs alleged was confidential. The information intended to be published fell into three categories, including opinions expressed internally by officials within a bank, the fact of an extension of a loan to the first plaintiff and information relating to the commercial relationship between the first and second plaintiffs. It was urged upon the Court by the plaintiffs that irreparable harm would be done through publication, whereas it was alleged that there was a public interest on behalf of the Irish people in knowledge concerning the relationship between such customers and Irish banks.

Held by MacEochaidh J. ( ex tempore), in refusing to grant an injunction restraining publication of the fact that a further loan was extended to Mr. McKillen in the amount identified. The Court decided to permit a limited amount of publication of the intended information. There was no public interest in the publication of information of an opinion nature communicated internally within the bank.

1 EX TEMPORE REDACTED JUDGMENT of Mr. Justice Colm Mac Eochaidh delivered on the 30th day of March 2013

2 This is an application for an interlocutory injunction arising out of the institution of proceedings against Times Newspapers Limited and Mark Tighe by two plaintiffs in respect of separate but related matters. The application in respect of both plaintiffs was heard together and arose from an intended publication by the 'Sunday Times' of certain information which is said by the plaintiffs to be confidential. It is not seriously denied by the 'Sunday Times' that the information is indeed confidential.

3 The issues which arise on this application are delicate and touch upon matters of great public importance. On the one hand, the Constitution guarantees freedom of expression to the 'Sunday Times', but perhaps more important than the 'Sunday Times' own constitutional right to freedom of expression, is the public right in the free press. The public has an extraordinary interest in there being a free and untrammelled press entitled to comment on all matters that are genuinely of public interest as opposed to matters of mere public prurience or curiosity. It is not seriously denied by the respondent that the information that they intend to publish relates to confidential matters arising from the banking relationship of Mr. McKillen with the IBRC and information relating to his commercial relationship with Mr. O'Brien.

4 The contest in this case is between categories of competing rights. I have already identified the 'Sunday Times' interest in its own constitutional rights and the public's right in the existence of a free and untrammelled press in a democratic society. The plaintiffs, of course, naturally have an interest in protecting their own confidential dealings and it is well established that the public also has an interest in the maintenance of confidential banking relations. The interest in such confidentiality extends not only to the parties who enjoy the confidence, but every citizen and resident in the State would like to see such relationships protected. To put it bluntly, no one would like to see their banking details on the front page of any newspaper and therefore there is a public interest in protecting and upholding those confidences.

5 The parties have opened a variety of cases which demonstrate how some of these competing interests have been played out and have been balanced by the courts. It is very clear to me that the law directs the High Court to be extraordinarily slow to place restraints on publication. If there is to be any presumption applied, it seems that there is a very strong presumption in allowing the press to publish and to permit any harm caused thereby to be reparable or compensated by an award of damages. That would appear to be the way the courts tend to approach these difficult questions. The courts are slow to restrain publication. On the other hand, the courts accept the need to protect the confidential relations between banks and their customers. The principal authority addressed to this Court on circumstances when the confidential relationships may be invaded is the decision of this Court and of the Supreme Court in National Irish Bank v. Radio Telifis Éireann [1998] 2 ILRM 196.

6 It is contended on behalf...