Appeals which raise similar issues around ’separation of powers’ to be heard in sequence in March, court rules

The Supreme Court has allocated a date next March to hear former Rehab CEO Anglea Kerins’ appeal against the rejection of her damages case over the Dail Public Accounts Committee’s conduct of hearings concerning public monies paid to the Rehab group.

Appeals which raise similar issues around ’separation of powers’ to be heard in sequence in March, court rules

By Ann O’Loughlin

The Supreme Court has allocated a date next March to hear former Rehab CEO Anglea Kerins’ appeal against the rejection of her damages case over the Dail Public Accounts Committee’s conduct of hearings concerning public monies paid to the Rehab group.

Ms Kerins appeal has been fixed for March 13th, to be followed a week later by the appeal by businessman Denis O’Brien over the High Court’s dismissal of his action over statements made by two TDs in the Dail about his banking affairs.

Because both appeals raise similar issue concerning the constitutional separation of powers and the courts’ ability to intervene in decisions and proceedings of Houses and Committees of the Oireachtas, the Supreme Court has decided they should be heard in sequence.

During a 15 minute case management hearing today to deal with preparatory issues for both appeals, Ms Justice Elizabeth Dunne said the Chief Justice had allocated five days from March 13th for Ms Kerins’ appeal and two days from March 20th for Mr O’Brien’s appeal.

When the judge was told that Michael Cush SC, for Mr O’Brien, will be involved in another High Court case from February, which was fixed for some three weeks, she said the March dates had been allocated and she was not, at this stage, engaging in discussion about them.

After making directions for exchange of legal documents, the judge told the legal teams for the sides, comprising five senior and five junior counsel, and five solicitors, she would make further case management directions in February.

In her action, Ms Kerins claimed two PAC hearings on February 27th and April 10th 2014, when she was questioned about her €240,000 annual salary and other matters, amounted to a “witch hunt” against her. The PAC argued it was entitled to scrutinise how public funds are spent when some €80m public monies are paid annually to Rehab companies.

Ms Kerins has appealed a three judge High Court’s judgment last January that, because the Constitution confers absolute privilege on "utterances" in the Oireachtas and the PAC was making no "determination" in relation to Ms Kerins, the courts cannot intervene in relation to how the two hearings were conducted. 

In its judgment, the High Court said, if members of the Oireachtas were constrained in their speech as Ms Kerins alleged, "the effective functioning of parliament would be impaired in a manner expressly forbidden in absolute terms by the Constitution".

In his appeal, Mr O’Brien wants the Supreme Court to overturn the High Court’s dismissal of his case against the Dail and State over statements made in the Dail by Social Democrats TD Catherine Murphy and Sinn Fein TD Pearse Doherty about his banking affairs with State-owned Irish Bank Resolution Corporation. The statements were made on separate dates in summer 2015 after Mr O’Brien had got court injunctions restraining RTE publicising that information.

In her March 2016 High Court judgment dismissing the case, Ms Justice Una Ni Raifeartaigh held that what Mr O’Brien sought was prohibited by the separation of powers under the Constitution and would have a "chilling effect" on parliamentary speech into the future. She upheld the core defence argument that Article 15 of the Constitution immunises Dail "utterances" from suit or scrutiny by courts or tribunals.

Mr O’Brien is also appealing an order requiring him to pay the estimated €1m legal costs of his failed action.

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