Businessman Denis O’Brien wants a three-judge High Court to decide his case alleging that statements by TDs in the Dáil about his banking affairs are not absolutely immune from legal action, his lawyers said Thursday.
Michael Cush SC said he considered there are similarities between arguments to be advanced in Mr O'Brien's case and those being made in the continuing action by former Rehab CEO Angela Kerins against the Dáil Public Accounts Committee (PAC) and State.
Ms Kerins’ case is being heard by a three judge court and the court may consider it appropriate a three judge court should also hear Mr O’Brien’s case, listed for hearing in November, counsel said.
He was addressing the President of the High Court, Mr Justice Peter Kelly, just as Ms Kerins’s case was about to resume before a three judge court comprising Mr Justice Kelly, Mr Justice Seamus Noonan and Ms Justice Isobel Kennedy.
Ms Kerins has sued the PAC and State over the conduct of two hearings in 2014 by the PAC into payments of public funds to Rehab companies. She claims PAC acted outside its jurisdiction and she was so overwhelmed by the conduct of a February 27th hearing she attempted to take her own life. She is seeking damages on a number of grounds.
Mr O'Brien's case – against the Dáil Committee on Procedure and Privileges and State — raises issues whether statements made in the Dáil by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty about his banking affairs with State-owned Irish Bank Resolution Corporation (IBRC) attracted absolute privilege, counsel outlined.
Mr O’Brien was contending there was no such absolute privilege on grounds including utterances in the House must not usurp the judicial domain and must be linked to the legislative process, counsel said.
Mr O’Brien has claimed utterances by Deputy Murphy and Deputy Doherty in the Dáil in May and June 2015 respectively forced him to later concede in the High Court in June 2015 that the entire script which he sought to prevent RTÉ publishing concerning his banking affairs with IBRC, and which he had successfully injuncted, was by then in the public domain.
The CPP, in response to complaints by Mr O’Brien, held neither Deputy had breached the standing orders governing debate in the Dáil.
Sara Moorhead SC, for the CPP, said Thursday that Mr O’Brien’s case was against a different Dáil committee from the PAC, and the State. Ms Moorhead and Maurice Collins SC, for the State, both said they wanted to see the formal written submissions of Mr O’Brien’s side before outlining their position on what was being advanced.
Mr Cush said the submissions would be completed by next week. Mr Justice Kelly said they should be delivered next Wednesday and would be considered by the court before a decision was made whether Mr O’Brien’s action would be heard by three judges.
When the judge asked John Rogers SC, for Ms Kerins, whether he considered there were similar arguments being advanced in the two cases concerning the nature of the privilege accorded to “utterances” in the Oireachtas, Mr Rogers said it seemed Mr O’Brien’s case was different as it concerned statements made in the Dáil chamber while Ms Kerins’ case related to statements of the PAC.
When Mr Rogers signalled he would be raising issues whether absolute privilege was conferred via Article 15 of the Constitution, Paul Gallagher SC, for PAC, said that was a new argument which could not be advanced at this stage of Ms Kerins’s case and he would be objecting to it.
