The State is liable in damages to Angela Kerins because the Dáil Public Accounts Committee subjected her to a "war" in breach of her constitutional rights, incuding to her good name and other personal rights, the High Court has been told.
John Rogers SC said the State's liability to the former Rehab chief executive arises because members of the Public Accounts Committee set aside the "rule book" and subjected Ms Kerins to a "war", making "devastating", "hurtful", "grievously damaging" and "outrageous" statements about her at two public hearings in 2014.
Those “statements of fact, expressions of opinion and assertions of wrongdoing” were immediately released in the public domain and are “wholly irretrievable”, he said.
A three judge High Court is hearing final arguments concerning whether the PAC had jurisdiction to conduct the two hearings on February 27th and April 2014 concerning public payments to Rehab as it had.
Ms Kerins claims the hearings amounted to an unlawful “witchhunt” against her outside the PAC’s jurisdiction and wants damages on grounds including alleged personal injury, loss of reputation and loss of career.
The PAC argues it had jurisdiction to conduct the hearings as it did and is entitled to scrutinise how public funds are spent in a context including that some €80m public monies are paid annually to Rehab companies. It has also argued Ms Kerins appeared voluntarily before the Committee on February 27th, raised many of the issues she now complains about, and told it she was glad to provide information about the services provided by Rehab.
Ms Kerins claims she was so overwhelmed by what happened at the February 27th hearing she later attempted to take her life and could not attend the April 10th hearing.
On Thursday, Mr Rogers argued Sinn Féin deputy leader Mary Lou MacDonald and Independent TD Shane Ross, now a Government Minister, engaged in “egregious” behaviour towards Ms Kerins at the hearings. “She was bullied, let’s call a spade a spade.”
She was “traduced” during the two hearings but the then PAC Chairman John McGuinness failed to protect her and rather gave a “judgment” against her at the April hearing when she was not there, counsel said.
While the PAC argued Ms Kerins had appeared before it voluntarily, that voluntariness was “prised away” by what happened, including Ms Kerins and other Rehab witnesses being asked about her salary and other private matters, incuding the pension of former Rehab chairman Frank Flannery and “entirely private” enterprises the Rehab Group was trying to make profits from. This had “nothing to do” with provision of rehabilitation services.
The hearings became an “adversarial examination” not at all mandated, he argued. Ms Kerins was unable to attend the April hearing and it could not be claimed she consented to what happened there, including witnesses from Rehab being asked about a complaint against her and to “condemn” her.
At this point, her constitutional rights to her good name, to privacy, to constitutional fairness are all engaged, he said.
No procedures had been put in place by PAC to “stop this rot”, he said. This was a “Catch 22 situation”, Ms Kerins was before a committee which was “at large with no rules” and “the rule book had been set aside”.
Maurice Collins SC, for the State, said Ms Kerins had not pleaded a case against it under Article 40.3 of the Constitution (requiring the State vindicate the personal rights of the citizen), and cannot now do so. Her claim against the State is confined to a claim of vicarious liability for alleged acts of the PAC, which claim is denied, he said.
Mr Rogers maintained he can pursue the claim under Article 40.3. That issue will be addressed later.
Counsel also argued the constitutional protection against suit given to "utterances" in the Houses of the Oireachtas does not apply to Dail Committees. He rejected arguments by the State and PAC that the Supreme Court's findings concerning the protections to be afforded to Garda witnesses appearing before the Abbeylara inquiry did not apply to someone appearing before the PAC.
The hearing is expected to conclude on Friday with judgment reserved.
