Businessman Denis O’Brien has lost his Supreme Court challenge over statements made in the Dáil about his banking arrangements.

In a ruling handed down at NUI Galway, where the court is sitting this week, it found the High Court had been correct to dismiss his action against the Clerk of the Dáil and the Dáil Committee on Procedure and Privileges (CPP).

The Supreme Court found Mr O’Brien’s challenge amounted to an “indirect or collateral challenge” on statements in the Dáil, something that is impermissible under the Constitution.

It is the second major legal loss for the telecoms and media tycoon in recent days. Last Friday, he lost a High Court libel action against the Sunday Business Post over articles relating to his borrowings.

Mr O’Brien’s Supreme Court challenge related to events in 2015 when he got injunctions against RTÉ, restraining the broadcaster from publishing details of his banking relationship with State-owned Irish Bank Resolution Corporation.

But he argued his injunctions were made pointless when Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty subsequently revealed information in the Dáil.

The businessman, who is the largest shareholder in Independent News & Media, owners of Independent.ie, made a complaint.

However, the CPP found the two TDs had not breached any rules.

Mr O’Brien lost a High Court action over the matter in 2017 when Ms Justice Úna Ní Raifeartaigh ruled Article 15 of the constitution, which provides protections for speech in the Dáil, meant the court could not intervene.

In his Supreme Court challenge, Mr O’Brien argued the CPP’s finding was based on an error in its interpretation of Dáil standing orders.

His lawyers claimed there was no evidence on which the committee could have decided the TDs acted responsibly and in good faith when they made the statements.

They also claimed his constitutional rights were deliberately damaged by the TDs. It was argued the courts could intervene because the CPP breached its own rules in how it dealt with the matter.

However, the seven-judge court did not agree that the courts could intervene.

Reading its ruling this morning, Chief Justice Frank Clarke said: “The fundamental point on which this appeal turns is the view of the court that the challenge which Mr O’Brien seeks to bring to the decision of the CPP would amount to an indirect or collateral challenge to utterances made in the Dail and, as such, that challenge is impermissible.

“For those reasons the court concludes that Ms Justice Ní Raifeartaigh was correct in her conclusion that these proceedings are non-justiciable and further correct in her decision to dismiss Mr O’Brien’s case.

“On that basis, the appeal must be dismissed.”

Welcoming the judgement, Social Democrats co-leader Catherine Murphy said it was recognition by the courts that parliamentary privilege is an important aspect of our democratic system.

“The CPP found that I had not abused parliamentary privilege in making a speech which was very squarely within the public interest and that I acted in good faith at all times. I am pleased that both the High Court and now the Supreme Court have upheld that decision,” the TD said.

“Whilst I am pleased that the courts have recognised the constitutional protections afforded to those of us who may find ourselves in the position of having to use parliamentary privilege for a matter of public interest, it is hugely incumbent on us, as elected representatives, to recognise that such privilege must only be exercised with great responsibility.

“The public interest must always be to the fore and that is what has underpinned everything I have done to date.”

Today’s ruling had been due to be handed down last week, on the same day as the Supreme Court ruled in favour of former Rehab Group chief executive Angela Kerins in her challenge against the Dáil Public Accounts Committee.

However, it was postponed to today at the request of Mr O’Brien’s lawyers due to the risk it might interfere with the Sunday Business Post case, which was then at a sensitive stage.

In the Kerins case, the Supreme Court found that protections in Article 15 generally rule out intervention by the courts over utterances in parliament.

However, it also found an exception where Oireachtas committees can be subject to judicial oversight in situations where there has been “a significant and unremedied unlawful action on the part of a committee”.

Mr Justice Clarke said that while there was “common ground” between the issues raised in the O’Brien and Kerins cases, it was important to note the differences.

He said that in its judgment, the Supreme Court identified two significant barriers to the judiciary intervening in issues arising from what is said in the Houses of the Oireachtas.

The Chief Justice said the first set of restrictions derive from the wording of Article 15 which confers significant privileges and immunities on the Houses of the Oireachtas and their members.

The judge said that, as pointed in the Kerins ruling and as reiterated in the O’Brien judgment, under the Constitution any rights which may allegedly be infringed in the Oireachtas can only be protected by the Oireachtas and not by the courts.

“For the reasons set out in this judgment, the court confirms the view expressed in Kerins that included in the matters which are immune from review by the courts are questions which relate indirectly or collaterally to utterances made in the Houses,” he said.

“The court has concluded that the challenge which Mr. O’Brien has sought to bring to the decision of the CPP involves, in substance, an indirect or collateral challenge to the utterances of the deputies themselves.”

Mr Justice Clarke said the only practical outcome if Mr O’Brien was to succeed in the proceedings would be for the CPP to reconsider its decision in respect of his complaint.

“If that should lead to a different result, then a court would have been, at least indirectly or collaterally, involved in dealing with utterances made in the Houses. In the court’s view such a course of action is impermissible under the Constitution,” he said.

The Chief Justice said the court considered whether there might be an exception which would allow it to intervene.

“However, the court has indicated that, even if such an exception may exist, it could only apply in the case of either an egregious breach by the Oireachtas of its obligation to protect the rights of citizens in respect of matters which occurred within the Houses or a persistent failure to deal with matters in a way from which it might legitimately be inferred that the Oireachtas did not intend to afford appropriate protection to citizens,” he said.

“Neither of those situations could be said to exist on the facts of this case.”

Mr Justice Clarke said the role of the CPP, in considering complaints by citizens, may involve the carrying out of a delegated constitutional function by the CPP.

“The CPP thus enjoys the same immunities and privileges as the Houses when carrying out that role,” he said.

Source: Read Full Article