Denis O’Brien cannot call evidence from US law expert, court rules

Businessman Denis O'Brien cannot call evidence from a US constitutional law expert in his forthcoming case alleging statements by TDs in the Dáil about his banking affairs breached his rights, the High Court has ruled.

Mr O'Brien claims statements by Social Democrats TD Catherine Murphy and Sinn Féin TD Pease Doherty in May and June of last year forced him to concede in the High Court in June 2015 in relation to a script which he sought to prevent RTÉ from publishing concerning his banking affairs with IBRC.

He said that he had to concede the case as the information contained in the scipt was by then in the public domain.

The Dáil Committee on Procedure and Privileges (CPP), in response to complaints by Mr O’Brien, later held that neither Deputy had breached the standing orders governing debate in the Dáil.

Mr O’Brien, who will give evidence in the case himself, claims there is no absolute privilege attaching to the TDs’ statements, on grounds including that utterances in the House must not usurp the judicial domain.

His case is due to open on November 29th.

In a pre-trial application, he sought to call evidence from Prof Laurence Henry Tribe of Harvard Law School, an American constitutional law expert who was involved in writing the constitutions of South Africa and the Czech Republic.

The application was opposed by the CPP and the State.

Judge’s ruling

The President of the High Court, Mr Justice Peter Kelly, on Tuesday said Mr O'Brien's case, which includes claims under the European Convention on Human Rights Act, 2003, is "rooted exclusively in his alleged entitlements under Irish law".

The judge ruled that the case will be decided solely under Irish law, and as no issue of American constitutional law or foreign law arose, Prof Tribe’s evidence was inadmissible.

Even if admissible, that evidence was not “reasonably required” for the court to determine the case, within the new conduct of trial rules, he said.

While Mr O’Brien’s side argued that this was a “unique and important” case which raised issues of Irish law not previously decided, that was no justification for admitting this evidence which, on principle, was inadmissible, the judge said.

It was open to Mr O’Brien to cite US decisions in his case, an option frequently followed in other cases, he noted.

He also awarded costs of the application against Mr O’Brien.