Denis O’Brien must pay costs of failed action over Dáil comments

Denis O’Brien must pay all of the estimated €1 million costs of his failed case against the Dáil and State over statements made by two TDs in the Dáil about his banking affairs, the High Court has ruled.

Mr O’Brien wanted the court to direct the Dáil and/or State parties to pay a “portion” of the costs, but they opposed that on grounds including, had he won, there would have been a “chilling effect” on parliamentary speech into the future.

The seven-day case was against the clerk of the Dáil, the Dáil Committee on Procedures and Privileges, and the State.

It arose from statements made on separate dates in summer 2015 by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty after Mr O’Brien got court injunctions restraining RTÉ publicising that information.

Dismissing the case last March, Ms Justice Úna Ní Raifeartaigh held what Mr O’Brien sought was prohibited by the separation of powers under the Constitution and would have a “chilling effect” on parliamentary speech into the future. She upheld the core defence argument Article 15 of the Constitution immunises Dáil “utterances” from suit or scrutiny by courts or tribunals.

Michael Cush SC, for Mr O’Brien, later argued factors including the importance and “undoubted novelty” of the case, and the court’s acceptance what the TDs said damaged Mr O’Brien, entitled him to “a portion” of his costs against one or other of the defendants. He also relied on the High Court decision awarding former Rehab chief executive Angela Kerins two-thirds of her failed action over the conduct of hearings by the Dáil Public Accounts Committee concerning payments to Rehab.

Sara Moorhead, for the Dáil side, said Mr O’Brien was a wealthy man and the taxpayer should not pay his costs of a case which, while of general public importance, was not novel and brought primarily out of personal interest.

In her costs ruling on Tuesday, Ms Justice Ní Raifeartaigh concluded the normal rule – costs are paid by the loser – should apply.

She said the factual matrix of this case was “undoubtedly novel”, and the court’s treatment of the pre-existing jurisprudence involved “somewhat more than a straightforward application of identifiable principles”.

However, there was “insufficient degree of novelty” in the legal issues raised to warrant exercising an “exceptional” jurisdiction to depart from the normal costs rule, she held.

Since there was no issue of “hardship” affecting Mr O’Brien, she was not taking his means into account in deciding costs, she said.

Costs liability in this case should be decided on the basis of whether the normal rule the loser pays should be displaced by the public importance of the issues raised and their degree of novelty, she said.

Some aspects of Mr O’Brien’s case involved no more than relatively straightforward application of existing legal principles, particularly whether the court could intervene in the Dáil Committee’s handling of Mr O’Brien’s complaints and if the Dáil “utterances” had decided a legal case, she said.

Other aspects involved more than simple application of pre-existing principles and the factual matrix, involving the deliberate revealing in the Dáil of confidential information subject of a court injunction, was novel and had never arisen here previously.

For reasons including there was much existing law concerning Article 15, the novelty of the issues lay primarily in teasing them out against the factual matrix, she said.

In deciding costs liability, she was not taking into account any damage suffered by Mr O’Brien due to the TDs’ actions, the judge added. That would seem indirectly to do what her main judgment held could not be done – the court censuring the Oireachtas over conduct of its TDs and/or Committee.

The damage suffered by Angela Kerins was of an “extreme” kind and her case was clearly distinguishable on that basis from Mr O’Brien’s, she added.

She also considered Mr O’Brien’s decision not to sue the TDs or seek damages was probably made for tactical reasons and based on legal advice and she was not satisfied it reflected some kind of bad faith on his part.