Denis O’Brien case could benefit everyone, claims his counsel

The case taken by the businessman Denis O’Brien against the State and a Dáil Committee could benefit everyone, his counsel has told the court.

The court is reviewing previous judgments concerning the Constitutional privilege enjoyed by members of the Oireachtas whereby they cannot be held amenable to any authority other than the Oireachtas for what they say in the Oireachtas.

It was of fundamental importance for all citizens that the rights of the Oireachtas were clearly defined.

“That’s what we are trying to do,” O’Brien’s counsel, Michael Cush SC, told Ms Justice Úna Ní Raifeartaigh. “It’s important for everybody.”

When going through judgments concerning Larry Goodman and the Beef Tribunal, Cush said that when the privilege enjoyed by members of the Oireachtas came up against peoples' individual rights, such as the right to protect their good name, the latter had to give way. "We absolutely accept that."

Separation of powers

However, he later said his client was relying on his personal right that no one but the courts could determine a case he had before the courts. O’Brien’s case was based on the separation of powers, he said.

O'Brien claims disclosures in the Dáil last year by TDs Catherine Murphy and Pearse Doherty had the effect of determining a court case where he was attempting to prevent RTÉ from publishing alleged details of his private banking affairs. They had strayed into an area that under the Constitution was the sole preserve of the courts, he alleges, adding that the Oireachtas failed to police the deputies' use of their privilege.

Ms Justice Ní Raifeartaigh asked about O’Brien’s right to take the case, given that he was not claiming that his personal rights had been infringed. Cush said his client’s right to litigate was tied up with the issue of the separation of powers.

The defendants will be arguing that because article 15.13 of the Constitution prohibits members of the Oireachtas being held amenable for their utterances in the Oireachtas, the court should dismiss the case taken by O’Brien.

Possible penalty

The judge said “amenable” could be viewed as either referring to someone being brought before a court to face a possible penalty, or meaning that any utterance by a member of the Oireachtas could not be subjected to discussion before the courts. Cush said the former, narrower definition was correct.

O’Brien was not suing the two deputies, he said. “We don’t seek to make anybody amenable.” O’Brien wanted the court to find that the deputies’ utterances were an unwarranted interference in the work of the courts and that the rejection by the Committee on Procedure and Privileges of his subsequent complaints was based on an incorrect interpretation of the relevant standing orders. He was not looking for damages.

If O’Brien failed in the case it would send a “clear message” that deputies could undermine court orders at will.

Cush said O’Brien wanted the court to delineate “what can and can’t be done”. It was surely the case, he said, that the court can rule on what the Constitution says.