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Denis O'Brien must pay all the costs of failed Irish High Court action

By Shane Phelan

Businessman Denis O'Brien must pay the full costs of his failed High Court action over comments made by two TDs about his banking affairs.

The costs of the seven-day case are estimated to be in the region of €1m.

The Irish High Court ruled today there was “an insufficient degree of novelty” in issues raised by Mr O’Brien to warrant diverging from the normal rule that the loser pays the costs of the case.

Ms Justice Úna Ní Raifeartaigh also said she was not prepared to take into account damage done to Mr O’Brien, as to do so would be to censure the Oireachtas.

Although former Rehab Group chief executive Angela Kerins was awarded two-thirds of her costs after she lost a similar case against the Dáil Public Accounts Committee, the judge said the damage done to Ms Kerins was “of the extreme kind” and “clearly distinguishable” from the damage done to Mr O’Brien.

Ms Justice Úna Ní Raifeartaigh’s ruling came after Mr O’Brien had sought his costs in the case despite failing to persuade the court to censure both TDs and lay down a line beyond which deputies cannot pass.

Mr O’Brien’s legal team had argued he should get his costs because it was a constitutional case of importance brought in the interests and all citizens and not just his own.

He alleged Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty “clearly disregarded” the constitutional separation of powers between parliament and the courts when they made statements in the Dáil in May and June 2015 about his banking arrangements with the Irish Bank Resolution Corporation.

The statements were made at a time when Mr O’Brien was engaged in High Court proceedings against RTÉ seeking to restrain it from publishing details of his banking relationship with the IBRC.

Mr O’Brien alleged their intervention amounted to “unwarranted interference” in the judicial domain. He also argued the Dáil Committee on Procedure and Privileges, which rejected his complaints about the conduct of the politicians, failed to “properly police” the TDs.

Although Ms Justice Ní Raifeartaigh said her eyes were open to the fact that damage was undoubtedly done to Mr O’Brien and that the release of his banking information was deliberate, she said the court could not intervene as Article 15.13 of the Constitution means members of the Oireachtas are not amenable to any authority other than the Oireachtas for “utterances” in the Dáil or Seanad.

The respondents in the case successfully argued this conferred an absolute immunity over what is said in the Oireachtas.

In her costs ruling today, the judge said she was not prepared to take into account any damage suffered by Mr O’Brien.

She said to do so would “indirectly do what my substantive judgment declined to do, namely to censure the Oireachtas for the conduct of its deputies.”

The judge said the issue of costs had to be decided on the basis of whether or not the normal rule that the losing party pays should be displaced by the public importance of the issues raised and their degree of novelty.

She said that issues of importance were raised and the “factual matrix” was novel.

The judge said there had never been a scenario before where information that was both confidential and subject to a court order was deliberately revealed on the floor of Dáil Éireann on a number of successive dates.

She also said the case had required a detailed examination of the precise privileges available to TDs under Article 15 of the Constitution.

However, she concluded that there was an insufficient degree of novelty in the legal issues raised to warrant departing from the normal rule on costs.

Ms Justice Ní Raifeartaigh also said she had not taken Mr O’Brien’s means into account when deciding the costs issue.

Mr O’Brien was not in court for today’s costs ruling.

Irish Independent

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