WINNING ON THE PRINCIPLES
The Supreme Court gave judgment on 31 July in the appeal brought by our clients Geraldine Kennedy and Colm Keena of The Irish Times against a High Court Order made in 2007. The High Court had ordered that the Appellants attend before the Mahon Tribunal to answer all questions to which the Tribunal might require answers in relation to the source of documents (subsequently destroyed in the face of a Tribunal Order) which resulted in a story appearing in the Irish Times on 21 September 2006 concerning payments made to Bertie Ahern in December 1993 when he was Minister for Finance.
A five judge court, presided over by Chief Justice John Murray, heard the appeal in December 2008. In probably the most expansive legal argument yet heard by the court on media rights in the context of Articles 40 of the Irish Constitution and Articles 8 and 10 of the European Convention on Human Rights, detailed submissions were considered on the integrity of Tribunals, the rights and privacy of those being investigated, freedom of expression, freedom of the press, protection of sources and the role of journalism in contemporary society.
The unanimous judgment of the court given by Mr. Justice Fennelly held that the appeal turned entirely on the balance struck by the High Court between the power of the tribunal to investigate and the right of the Appellants to refuse to disclose any information about their sources. He found that the information in question, relating as it did, to allegations of the payment of monies to an important political figure, was a matter of public interest, which a newspaper would, in the ordinary way be entitled to print. This is notwithstanding the fact that certain document(s) the source of the story were destroyed having been sought by the Tribunal.
LOSING ON THE COSTS!
On 26 November the same Court found that given the particular circumstances of the case, resurrecting the elephant in the room – the destruction of documents, the Tribunal was entitled to recover the costs of the High Court and Supreme Court hearings from The Irish Times notwithstanding the Supreme Court’s earlier specific finding that the Order of the High Court was not justified and the issue was (not) to be determined “…by the need to mark disapproval of the unquestionably ‘reprehensible conduct’ of the appellants.” The Court had also said that it did not think “…the High Court was correct in reaching the conclusion that the ‘destruction of these documents by the defendant is a relevant consideration to which great weight must be given in striking the correct balance between the rights and interests at issue on the application”.
The Court in its ground breaking decision on costs, having referred to an earlier decision on “discretion”, failed to cite any precedent where the costs of the High Court and Supreme Court were awarded against a successful appellant, appears to have found a way to severely penalize The Irish Times and to resile from its own finding that the Order being made had “to be justified by the situation as it now exists and not by the need to mark disapproval …”