Belfast Telegraph

Denis O'Brien has 'no basis' for case against state, defence claim

By Andrew Phelan

Denis O’Brien has “no basis” under the Irish constitution for his case against the state, a defence lawyer has argued.

Maurice Collins SC also told the High Court that Mr O’ Brien thought comments made about his banking arrangements by two TDs in the Dail were a Constitutional “Coup d’Etat”.

Mr Collins SC, who represents the Attorney General and the State, was speaking today in response to Mr O'Brien's continuing case which is also against the Dail Committee on Privileges and Procedure, and the Clerk of The Dail.

Mr Collins said Michael Cush SC, for Mr O’Brien, had conceded earlier that he could not “set up the plaintiff’s personal rights” against Article 15 of the Constitution and “get around” the Article, which covers parliamentary privilege.

“How then is the right of access (to the courts) one that creates a right vis-a-vis the CPP as it discharges its functions (under Article 15)?” Mr Collins said.

He asked, if a TD speaking in the Dail could not be restrained by Mr O’Brien’s right of access to the court, how could the plaintiff rely on the same right to dictate the approach taken by the CPP.

Mr Collins said the only rights Mr O’Brien could assert were his personal rights and if these rights yielded “as they must” to Article 15 of the Constitution, then he was left with “no basis for his claim.”

He said Dáil members were amenable only to the House itself and matters were only delegated to the CPP.

Mr Collins then referred to Mr O’Brien’s injunction application against RTE that had been pending when one of the TDs - Catherine Murphy of the Social Democrats - made her comments.

It would be “entirely illogical” to say that rights that are excluded in relation to utterances in the Dail “suddenly come back to life” as a result of a complaint being made, Mr Collins said.

If the plaintiff’s case was correct and it was only a matter of issuing a writ that did not name individual deputies but named rather the Clerk of the House to overcome Article 15 then “why do we need the pending proceedings at all?” he asked.

Mr Collins said if this was correct then “you can bring proceedings directly against the Oireachtas and you can look in an appropriate case for an injunction,” which may not be as “bullet proof” as one against individual deputies, but would have the effect of restricting parliamentary speech.

“That is what this plaintiff is saying,” Mr Collins argued. That you can do all of these things, and the reliance on pending proceedings is all a puff of smoke, a red herring… you can do this without ever having gone to court.”

Referring to a point from case law, Mr Collins said it was a “tribute to Mr O’Brien’s self-regard” that he thinks statements made by two TDs which offended him and which he thinks disclosed his private banking information is “the Constitutional equivalent of a coup d’Etat.”

The action arises out of statements by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty in the Dáil in May and June 2015 about his banking affairs.

At the time, Mr O’Brien was involved in injunction proceedings against RTÉ, to stop the station from broadcasting banking information.

But the court had heard Dáil statements made by the two TDs had the effect of putting all of the information at issue in the injunction proceedings into the public domain.

Lawyers for Mr O’Brien have claimed the TDs were  “guilty of an unwarranted interference” in the RTÉ case, and had disregarded the constitutional separation of powers between parliament and the courts.

Mr O’Brien has not sued the two TDs.

Instead his action is against the Clerk of the Dáil, the State and a Dáil committee which cleared the two TDs of any wrongdoing.

He is not seeking damages, but wants a declaration his rights were breached.

He also wants declarations that the courts had the exclusive right to determine the outcome of the proceedings with RTÉ, that the “substantial effect” of the TDs’ comments was to decide the outcome of that case, and that their interference was “unwarranted”.

Mr O’Brien also wants the court to declare that the Dáil Committee on Procedures and Privileges made an error when it cleared the TDs of any wrongdoing.

The claims are denied by the defendants. The case continues.

Irish Independent

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