O’Brien’s ‘sword of Damocles’ hanging over media, court told

The High Court will rule on Friday on RTÉ's application to fully discharge an injunction restraining publication of certain information relating to the banking relationship between Denis O'Brien and State owned IBRC.

RTÉ’s counsel David Holland SC urged Mr Justice Donald Binchy not to permit the businessman to maintain a “sword of Damocles” over the media by leaving in place the injunction granted last month.

Recent Dáil disclosures about the banking relationship between Mr O'Brien and IBRC means the injunction restraining RTÉ and other media publishing certain material is pointless and should be discharged, David Holland SC, for RTÉ, said.

RTÉ has behaved in an exemplary fashion concerning this matter and will continue to honour its general obligations in law, he said.

However, RTÉ should not be “kept under the cosh” as there was no reason to do so.

RTÉ had done nothing wrong, he added.

Mr O’Brien is not entitled to more than anyone else, no other citizen had sought such an injunction relating to their banking affairs and there was no reason to believe RTE intended to do wrong by Mr O’Brien, he said.

Lawyers for Mr O’Brien are opposing the discharging of the order in its entirety but Michael Cush SC, for Mr O’Brien, said their position is they are not seeking continuation of the order in relation to information that has come into the public domain.

RTÉ was seeking to have the injunction discharged without undertakings and the court’s order covered not just an intended RTÉ report but information relating to Mr O’Brien’s banking affairs.

RTÉ had made clear it had other information but has failed to identify what that is, he said. The fact events have overtaken the order such that the original report could be published did not mean the order should not continue so as to catch other information, he said.

There was clearly a lot of information out there regarding Mr O’Brien’s personal banking affairs, counsel said. Other citizens apart from Mr O’Brien had sought to protect the confidentiality of their banking affairs.

This application was too clever by half and the full discharge of the order was not warranted although his side accepted the order should be varied, he added.

Andrew Fitzpatrick BL, for IBRC, said its position is that legal advice relating to its banker/customer relationship with Mr O’Brien cannot and should not be published.

The proceedings by Mr O’Brien against RTÉ were briefly adjourned this morning to allow Mr Holland take further instructions about how the station wishes to proceed in light of the positions adopted by Mr O’Brien and IBRC.

When the matter resumed, Mr Holland said he was seeking the discharge of all injunctions. RTÉ is conscious of and will comply with its obligations t general law as reflected in the judge’s ruling granting the injunction.

Given that, there was no purpose served by the coercive force of an injunction which would chill the operation of the media.

Mr O’Brien is seeking to maintain a sword of Damocles over RTÉ and the entire media which no other citizen has, he said.

The question was not what were the substantial legal restrictions on publication relating to Mr O’Brien’s banking affairs but whether there was any justification for buttressing those obligations with a coercive injunction.

Mr Holland also argued that the privilege over the legal advice referred to is spent.

Last night's Dáil utterances by Sinn Fein's Pearse Doherty only reinforced RTÉ's arguments that continuing the injunction is pointless, counsel said.

Last week, the judge issued his written judgment giving its reasons for granting an injunction to Mr O’Brien and IBRC restraining RTÉ broadcasting details of Mr O’Brien’s financial arrangements with the bank pending the outcome of the full legal proceedings between the sides.

In that judgment, the judge said he had taken into account not just the exact text of Independent TD Catherine Murphy’s speech to the Dáil concerning Mr O’Brien and IBRC but also the meaning of what she said.

The redactions in his judgment related to issues that could not be reasonably inferred from what Ms Murphy said in the Dáil, he said.

The judge said he granted the injunction on grounds including no substantive evidence of “a failure of corporate governance” at the bank has been established

While RTÉ had made no allegations of wrongdoing against the businessman, it had raised issues concerning transactions involving the bank which are alleged to have been poorly executed by the bank, he said.

However, no evidence of a substantive nature was presented to the court that would allow it conclude there had been a failure of corporate governance.

He found both IBRC and Mr O’Brien, based on the evidence before him, had established a convincing case they would succeed at a full hearing of the matter. He also accepted damages would not be an adequate remedy for Mr O’Brien, who claimed his losses if details were broadcast would be “incalculable”.

After the injunction was granted, RTÉ and the Irish Times sought clarification whether they could publish details of the speech made by Deputy Murphy in the Dáil concerning the businessman’s arrangements with IBRC. Mr O’Brien disputes the accuracy of Deputy Murphy’s comments.

The judge said it was never intended the injunction could prevent the fair reporting of comments made in the Dáil.