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Sunday 3 December 2023 Dublin: 4°C

Denis O'Brien's privacy vs Dáil privilege: Arguments in businessman's Supreme Court appeal

He’s also contesting the decision that he should pay the costs of the High Court case that went against him.

Legal challenge against Dail committee Niall Carson via PA Images Niall Carson via PA Images

THE SUPREME COURT has today begun hearing an appeal from Denis O’Brien’s legal team as to why a High Court ruling on Dáil privilege, his privacy, and the associated legal costs should be overturned.

The businessman has argued that his privacy was breached by two TDs – Sinn Féin’s Pearse Doherty, and the Social Democrats’ Catherine Murphy – who gave statements to the Dáil during a 2015 debate about the sale of Siteserv.

The businessman is also appealing that the seven-judge Supreme Court review the order directing him to pay the costs of the High Court case.

In May 2017 the High Court ruled against O’Brien, saying that statements given in the Dáil are protected from judicial condemnation and court interference.

Parliamentary privilege is a slight exemption from law which allows TDs to raise points in the chambers that they feel need addressing without fear of being pursued in the courts (here’s a short explainer on this).

After the ruling, O’Brien released a statement saying that he was disappointed, but was “encouraged” by some sections of the judgement, particularly a reference to a review of parliamentary privilege and how it’s used.

‘Extraordinary privilege’

Quoting a section of the High Court judgement, O’Brien’s legal team said that the background to O’Brien’s appeal was the acknowledgement that damage had been done to him and his property rights had been infringed upon (ie, his banking affairs).

I take this view with my eyes wide open to the fact… that damage was undoubtedly done to the plaintiff… [and that this was] far from accidental slip on the tongue, as one can imagine.

After the court repeated that it cannot infringe on the Dáil, O’Brien’s legal team clarified that that wasn’t their objective. Moreso it was done so that the court can give a ruling and “the committee can apply it”.

His legal team argued that O’Brien was “far from being a distant spectator” and that his “interests were direct and central” to the Dáil comments made.

“His interests [in this case] were precisely what that standing order sought to protect,” Senior Council Michael Cush said.

The Supreme Court heard that there was an important distinction between the rules that apply to members of the Houses of the Oireachtas and to non-members. He said that as a non-member, O’Brien had a right to privacy that was infringed.

It was also pointed out that because of the comments made in the Dáil, O’Brien had to abandon a case which was due before the courts – namely, his injunction against RTÉ for broadcasting the information that was later given in the Dáil.

The court heard that because of this “extraordinary privilege” that TDs enjoy, O’Brien’s right of access to the courts had been infringed upon.

A number of Standing Orders were quoted in relation Dáil privilege, including a mention that notice should be served if Dáil privilege was to be employed. “Avoid, if at all possible, comment that would influence the outcome of the proceedings,” was another one.

His legal team said that O’Brien’s complaint to the Committee on Procedure and Privilege, was to show that the TDs’ behaviour “was wrong” and to minimise the chances of it happening again to him or others.

That Committee dismissed O’Brien’s complaint, saying that Dáil privilege was used. Today, it was argued that there was no evidence that Catherine Murphy had acted “in good faith” when she gave her statement to the Dáil on O’Brien.

The hearing is continuing this afternoon and will continue tomorrow.