THE Circuit Court in Cork has lifted an injunction restraining three Irish publications from approaching "or besetting" Dr James Barry, the Cork doctor at the centre of allegations of misconduct against former female patients.
On Friday last, Judge Patrick Moran granted an ex-parte application made on behalf of Dr Barry, which restrained Cork Examiner Publications Ltd, Sunday Newspapers Ltd, and Independent Newspapers Ltd, from approaching the doctor at his home or elsewhere.
Yesterday, for the first time since last summer when the allegations became public, Dr Barry returned to the jurisdiction and was present in court.
Former patients have alleged that he made secret video recordings while examining them. Some of the recordings are now in the hands of the Garda and court actions are being taken by a number of Dr Barry's patients who claim that he invaded their bodily integrity and Constitutional right to privacy.
Mr Patrick Horgan, the barrister representing Dr Barry, argued at the outset that the publicity surrounding his client had been unprecedented and that he had been forced out of the jurisdiction for health reasons and because he feared further harassment at the hands of the media. If the court wished for evidence of this, he added, it need look no further than the lunchtime recess yesterday when Dr Barry was mobbed by, cameramen as he left the building.
Mr Horgan said that under the Constitution, Dr Barry had the "eight to privacy. He was not seeking to gag the media or otherwise to prevent them reporting topical matters, or interviewing other parties, as long as they did so within the law. His client, he added was entitled to make decisions in his best interests.
"Put very simply, it's about the right to be left alone. These proceedings could stop here and now if the defendants would give their word to leave my client alone. I don't want to press on for injunctive relief unless I have to, but I hereby withdraw on behalf of my client any consent regarding approaches to him which the media may have perceived to have existed", Mr Horgan said.
He added, that contrary to a report in yesterday's Cork Examiner, Dr Barry had not arrived in Cork from Farranfore Airport under Garda escort, but had flown into Cork Airport at the weekend on a scheduled flight from Britain.
He had been met by his legal representative and had gone immediately to Garda Headquarters in Cork where he was told that there were no charges against him. Neither were warrants out standing against Dr Barry.
When Mr Horgan said that the report was "a tissue of lies", Judge Moran interjected that there may have been inaccuracies but that did not amount to lies. If any of the defendants published untruths or defamatory material concerning Dr Barry, the plaintiff had remedies available to him.
Judge Moran said that in his years on the bench in Cork, he had seen the media on many occasions assembled outside the court building waiting to interview and photograph particular parties. "Are they not entitled to do that?" he said.
Mr Horgan replied that at the recess in yesterday's hearing, for instance, his client had not had room to walk on the pavement because of the media crush.
As a citizen of a democratic State, he was seeking no more than the protection which was his due. But for the order granted by the court last Friday, he added, Dr Barry would have been unable to return to the jurisdiction.
"I submit that the only reason they [the media] persist in their actions is because they seek to verify what they are publishing. We do not surrender our right under the Constitution to privacy let them do their own work, they have done plenty of it over the past few months. The intensity of the coverage has been so extreme that we should be entitled to privacy," Mr Horgan said.
Mr John Lucey, the barrister representing the Cork Examiner, said that on November 14th of last year, Dr Barry had launched defamation proceedings against the Cork Examiner and 12 other, named defendants.
Since then, however, nothing had been done to advance those proceedings. If the law was breached in terms of libel or slander, Dr Barry could have his remedy. While watching, harassing and besetting the plaintiff had been claimed in the affidavit, no proof had been furnished to that effect. The plaintiff's privacy, he added, was protected under any action that he might bring for libel or defamation.
The right to privacy, he went on, was not absolute and had to be qualified. Further, his clients would reserve the right to contact Dr Barry for comment. Mr Horgan, he added, was trying effectively to silence the Cork Examiner.
Mr Jim Duggan BL, on behalf of Sunday Newspapers Ltd, said that Mr Horgan was seeking a "gag order". Such relief was not open to him unless sufficient evidence to support the application was first put in place. The court had no such evidence before it.
Mr Michael Kealy, the solicitor acting on behalf of Independent Newspapers Ltd, said Dr Barry was claiming that newspaper coverage had forced him out of the jurisdiction and that he had been harassed. While his clients had nothing to do with this, they believed they had the right to approach Dr Barry when there were reasonable grounds for it.
When Mr Horgan again appealed for the injunction to be continued, Judge Moran asked "Where do I get the right to stop reporters approaching someone who is a matter of news, provided they approach him properly?"
Mr Horgan said "Under the Constitution, my client refuses to comment and has done so for months."
Judge Moran then replied "You are not answering my question. What gives me the right to stop reporters approaching someone if they do it lawfully?" Mr Horgan "I say he will be harassed. Let them publish to their hearts content subject to Dr Barry's rights."
Lifting the injunction, Judge Moran said that publicity might be uncomfortable or unpleasant for Dr Barry but that was what happened to people in the public domain every day of the week. No evidence to support a continuing injunction had been offered, and the danger was that the effect of granting it would be to suppress reportage. Injunctions were granted sparingly, he added, and his duty was to be fair to both sides.
Dr Barry enjoyed the same protection as any other person who walked out of the court room. "I really do not think I have the right to stop the press from making a telephone call or walking up to someone on the street to ask for their views. I really don't think I have. The application must be grounded in apprehension of injury and there must be proof of actual or real danger," he said, and asked that the media show some respect for Dr Barry's wishes.