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 State-owned Irish Bank Resolution Corporation.
Mr Justice Donald Binchy said it was not appropriate to discharge the existing order in full but he would amend it to take accounts of developments since it was made last month. He will hear submissions on the form of the amended order next week.
While there was no reason to believe RTÉ would not continue to act responsibly in this matter, it had not said it would give an undertaking to the court and it was not unreasonable to infer RTÉ wished to leave open the possibility it may publish information in its possession concerning Mr O'Brien and IBRC pending the full hearing of the businessman's legal action, he said.
It must be borne in mind that Mr O’Brien had presented evidence he was likely to sustain significant financial losses which could not be quantified if his private banking affairs were put in the public domain, he said.
The court had already found damages would not be an adequate remedy if that were to occur. While Mr O’Brien may already have suffered damage as a result of information put into the public domain that was not reason to suppose he might not suffer further damage if more of his confidential information was published, the judge said.
He noted Mr O’Brien no longer opposes publication of a planned RTÉ report on his dealings with IBRC which had led to the injunction application. However, IBRC claimed it was entitled to legal professional privilege over parts of that report.
The judge said he was not disposed to vacate the order to the extent it would enable RTE publish information that derived form legal advice and was subject of legal professional privilege.
At this stage of the case, he was not satisfied RTÉ’s right to freedom of expression should give way to IBRC’s right to legal professional privilege, he said.
Mr Justice Binchy also noted he did not believe there was anything in Sinn Fein TD Pearse Doherty's speech to the Dail this week concerning the dealings between Mr O'Brien and IBRC that contained any legal advice.
RTÉ’s counsel David Holland SC had urged the court not to permit the businessman maintain a “sword of Damocles” over the media by leaving in place the injunction granted last month. Recent Dail disclosures about the banking relationship between Mr O’Brien and IBRC meant the injunction was pointless, he argued.
Michael Cush SC, for Mr O’Brien, opposed the discharging of the order in its entirety but were not seeking continuation of the order in relation to certain information that has come into the public domain. Their concern was RTÉ was seeking to have the injunction discharged without undertakings, he said.
The court’s order covered not just an intended RTÉ report but also information relating to Mr O’Brien’s banking affairs, he said. RTÉ had made clear it had other information but has failed to identify what that is.
The fact events have overtaken the order such that the original planned RTÉ report could be published did not mean the order should not continue so as to catch other information, counsel argued
There was clearly a lot of information out there regarding Mr O’Brien’s personal banking affairs and other citizens apart from Mr O’Brien had also sought to protect the confidentiality of their banking affairs, he said
Andrew Fitzpatrick BL, for IBRC, had argued legal advice relating to its banker/customer relationship with Mr O’Brien cannot and should not be published. IBRC is a regulated bank with a duty of confidentiality to customers and with obligations under the Data Protection Acts, he said.
The judge last month granted injunctions 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.
