THE IRISH Times has applied to the European Court of Human Rights concerning the award of costs against it by the Supreme Court, despite it winning its case against the Mahon tribunal.
Last July the Supreme Court unanimously upheld an appeal by Irish Times editor Geraldine Kennedy and public affairs correspondent Colm Keena against a High Court divisional court ruling that they should reveal their sources.
However, in November, the Supreme Court ruled there were “exceptional circumstances” in the case – the journalists’ destruction of documents related to the source – which justified departure from the normal rule that costs go to the winning side in litigation. It directed The Irish Times to pay all costs of the litigation, including the costs of the tribunal.
The Irish Times is applying to the European Court of Human Rights in Strasbourg on the grounds that a number of the rights of Kennedy and Keena have been violated, in particular their rights under article 6 of the European Convention on Human Rights, guaranteeing a fair trial, and Article 10, guaranteeing freedom of expression.
They point out that the tribunal did not take proceedings against the journalists because of the destruction of the documents, but because they refused to comply with its order to reveal their sources, which was upheld by the Supreme Court. It was unreasonable and/or unfair to require them to pay the costs.
In relation to freedom of expression, they point out that the court did not have regard to the requirements of article 10 when determining the issue of costs, while it did consider it when considering the substantive appeal. The interference with the right to freedom of expression did not pursue the “legitimate aims” provided for under article 10.
They point to the “chilling effect” of such an award of costs on the exercise of press freedom, pointing out that the ECHR has already ruled that an order to disclose sources cannot be compatible with article 10 unless it is justified by “an overriding requirement of public interest”.