RTÉ loses bid to lift Denis O’Brien injunction

The High Court has refused RTÉ's application to fully discharge an injunction restraining publication of certain information relating to the banking relationship between Denis O'Brien and the Irish Bank Resolution Corporation.

Mr Justice Donald Binchy said he would not discharge in full the existing order, which applies pending the full hearing of the proceedings against RTÉ, but would amend it to reflect "dramatic" developments since it was made last month.

He will hear submissions on the final form of the amended order next week.

In public domain

RTÉ had argued it was pointless to leave the injunctions in place given developments, including Dáil speeches by Independent TD

Catherine Murphy

and Sinn Féin TD

Pearse Doherty

, and a statement by former IBRC chief executive

Mike Aynsley

, concerning Mr O’Brien’s banking relationship with IBRC.

Mr O’Brien’s lawyer, Michael Cush SC, opposed discharging the order in full. One reason was RTÉ’s failure to give undertakings not to publish other information it may have on Mr O’Brien’s banking with IBRC.

Andrew Fitzpatrick, for IBRC, opposed full discharge on grounds including the bank was entitled to absolute privilege over communications with customers deriving from legal advice.

Earlier this week, the sides agreed the injunction should no longer cover Mr Aynsley’s statement or information previously deemed confidential but now in the public domain.

Because the information in the planned RTÉ broadcast was now in the public domain, Mr O’Brien no longer opposed it being broadcast but opposed broadcast of other confidential information.

IBRC argued parts of the RTÉ report that were the subject of legal professional privilege should not be broadcast.

RTÉ argued that, while accepting legal professional privilege was absolute, it could not extend to material in the public domain or trump RTÉ’s right to freedom of expression.

Mr Justice Binchy said RTÉ’s application to discharge was reasonable in light of the dramatic developments but it did not follow that the order should not be continued in relation to information not yet made public.

While there was no reason to believe RTÉ would not continue to act responsibly, it had not said it would give an undertaking to the court, and Mr O’Brien and IBRC should not have to rely on its good intentions.

Mr O’Brien had presented evidence he was likely to sustain significant financial losses if his banking affairs were put in the public domain and the court had already found damages would not be an adequate remedy if that happened, he said.

While Mr O’Brien may already have suffered damage as a result of information in the public domain, that was not reason to suppose he might not suffer further damage.

For all those reasons, he would not discharge the order in full but would amend it.

Addressing IBRC’s concerns about legal privilege, the judge said he would not vacate the order to the extent of enabling RTÉ to publish information that derived from legal advice and was the subject of legal professional privilege.

‘Immeasurable’ damage

It would inflict “immeasurable” damage to the administration of justice if a court decision that eroded the right to take legal advice secure in the knowledge the confidence of that advice is protected by the courts.

The form of the order and costs issues will be addressed next week.