The Mahon planning tribunal yesterday lost its High Court bid to stop a newspaper publishing documents which the tribunal had circulated to a limited number of persons with a direction the material remain confidential in advance of a public hearing.
In a 60-page reserved judgment which is a major upset to the tribunal's attempts to prevent publication of material circulated but not opened in public, Mr Justice Peter Kelly refused to grant a perpetual injunction against the Sunday Business Post.
Late last year the tribunal had been granted an order against the newspaper preventing publication of material until the conclusion of the full court hearing.
The proceedings arose after the newspaper in October 2004 published two articles relating to the tribunal's area of inquiry.
One was entitled "Jim Kennedy's Pipe Dream" and the other "Fifty councillors named in new planning tribunal list". The tribunal had suggested confidential tribunal documents formed the basis of the articles.
In his decision, Mr Justice Kelly said it was clear the tribunal, in asserting the confidentiality of everything which was contained in a brief, made no distinction between information obtained by it from a third party in circumstances where an assurance of confidentiality was given to such a party and material which was not covered by such an assurance.
In his view, the injunctions sought by the tribunal went much too far and sought to enforce "a species of confidentiality created unilaterally by the tribunal". He said the confidentiality which the tribunal sought to establish was all-encompassing and captured every document and piece of information in the brief which the tribunal circulated.
Such confidentiality took no account of the nature or source of the information in that brief, but the tribunal sought to extend it to information already in the public domain. "In my view the court could not contemplate granting an injunction of the type sought," the judge said.
The right of the press to report was not an unfettered one, the judge added. However, if it was to be curtailed by court order there must be a sound legal basis.
Having regard in particular to the jurisprudence which had developed in relation to Article 10 (2) of the European Convention on Human Rights (dealing with freedom of expression), the judge said he could find no sound legal basis for the wide-ranging form of order now sought.
Mr Justice Kelly said he was not without sympathy for the difficulty which confronted the tribunal. It must conduct its proceedings mindful of the rights of persons who gave it information on a confidential basis and the constitutional entitlements to their good names of those who might be impugned in such material. However, in this matter it had sought to interfere impermissibly with the defendants' rights.
The judge noted that, since its establishment, the tribunal had experienced difficulties concerning what was described as "unauthorised disclosure of confidential information".
It was of the view that such unauthorised disclosures were deliberate and believed they had been made by or on behalf of persons who had been or were likely to be called to give evidence to the tribunal and were intended to undermine and delay the tribunal in its work.
However, the tribunal had "taken a blunderbuss as its weapon of choice in protection of the undoubted rights of persons whose reputations may be damaged or who furnished truly confidential information to it" when what was required was a weapon of precision which would protect that deserving of protection while inflicting collateral restrictions on the defendants' rights.
After giving his judgment, Mr Justice Kelly refused an application on behalf of the tribunal for a stay on his decision to allow time for the tribunal to consider whether it should be appealed.
The issue of costs was deferred to Friday week.