Injunction does not prevent media publishing Dáil statement on Denis O'Brien, court rules
A High Court judge has said it is clear it is not entitled to restrain fair reporting of Dáil utterances.
The businessman secured the injunction two weeks ago claiming a story RTÉ planned to run about corporate governance at the bank breached his privacy.
The question today however was whether the order's effect extended to comments made under Dáil privilege last week by TD Catherine Murphy in relation to the businessman's banking affairs.
Mr Justice Donald Binchy said it was never his intention that an order preventing publication of Mr O'Brien's banking arrangements with IBRC would be construed in that light.
Judge Binchy says it was never his intention that his order would restrict fair reporting of what was said in the Dail. #OBrienvMedia
— Mark Tighe (@MarkLTighe) June 2, 2015
He will later decide whether his judgement from two weeks ago should be published in an unredacted form.
Michael Cush for #DenisOBrien "not part of Denis O'Brien's intention to restrain deputies from expressing views"
— Siobhan Bastible (@SBastibleTV) June 2, 2015
Today's ruling means that media outlets are now free to publish the comments made by Deputy Murphy.
Up until now most media outlets have been relying on their own legal advice not to publish the statements which were made under Dáil privilege.
Last Thursday, Catherine Murphy said that the former CEO of IBRC Mike Aynsley made verbal agreements with Denis O'Brien to extend the terms of his already expired loans.
Deputy Murphy went on to say that the agreement was never approved by the credit committee, and she went on to discuss what she called the “favourable”' interest terms.
"I move:
"That leave be granted to introduce a Bill entitled an Act to amend the Comptroller and Auditor General (Amendment) Act 1993 in order to make an addition to the First Schedule, to expand the areas under which an examination under section 9 may be conducted, and to provide for related matters.
"The Comptroller and Auditor General (Amendment) Bill 2015 seeks to extend the functions and powers of the Comptroller and Auditor General to cover IBRC.
"It was the Taoiseach who first suggested that the Comptroller and Auditor General review the Siteserv sale process at which time it was pointed out to him that the IBRC does not come within the Comptroller and Auditor General's remit.
"With this Bill, I am attempting to address that problem by broadening the remit of the Comptroller and Auditor General.
"The reason I anticipate the need to involve the Comptroller and Auditor General, if not a full commission of investigation which might well be a better option, is because I believe the Government has got this matter badly wrong.
"That is not least because most of the key players in the Siteserv saga have links with KPMG and the eventual purchaser and vice versa.
"It is a web of connections and conflicts that requires outside eyes to unravel.
"I have no doubt that the special liquidator is more than capable of carrying out such a review, but his direct involvement in the sale process, his relationship with the eventual purchaser of Siteserv and his current actions in the High Court in supporting Mr Denis O'Brien against RTE place him in a position where there is, at the very least, a perceived if not an actual conflict of interest.
"The review is not confined to Siteserv, but that is the transaction that prompted a review. I worry about the transactions that have been excluded from the review given what we now know that in the final months before prom night, the relationship between the Department and IBRC had completely broken down.
"If deals were being done without the knowledge or input of the Minister, we need to know what they were. We are now aware, for example, that the former CEO of IBRC made verbal agreements with Denis O'Brien to allow him to extend the terms of his already expired loans.
"We also know that the verbal agreement was never escalated to the credit committee for approval. I am led to believe and I would welcome, Minister, clarification of the rates applicable at this time: that the extension also attracted some extremely favourable interest terms.
"I understand that Mr. O'Brien was enjoying a rate of around 1.25% when IBRC could, and arguably should, have been charging 7.5%.
"Given that we are talking about outstanding sums of upwards of €500m, the interest rate applied is not an insignificant issue for the public interest. We also know that Denis O'Brien felt confident enough in his dealings with IBRC that he could write to Kieran Wallace, the special liquidator, to demand that the same favourable terms extended to him by way of a verbal agreement could be continued.
"We now have Kieran Wallace, who has been appointed by the Government to conduct the IBRC review, joining with IBRC and Denis O'Brien in the High Court to seek to injunct the information I have outlined from coming into the public domain.
"Surely, that alone represents a conflict.
"In documents released to me under freedom of information, the Minister, his officials, the Central Bank and even the troika acknowledge that IBRC - the former Anglo Irish Bank - is no ordinary bank and that there is a significant public interest as the bank was fully nationalised and was in wind-down mode.
"They all accept that this is the people's money we are dealing with and that there can be no dispute regarding the public interest in this.
"The same materials obtained under freedom of information detail instances where the Minister can specifically intervene and issue a ministerial order that material matters have a significant public interest. Included in these material matters are instances that are outside the ordinary course of business.
"I argue that what I have outlined here regarding verbal deals and extensions etc. are outside the normal course of business and ask the Minister to exercise his right to intervene in the current proceedings to defend the public interest.
"I have a motion on the Order Paper signed by the majority of Opposition Members calling for a debate on the proposed review - 45 Members have signed it and more are welcome to.
"When I tried to raise the matter on the Order of Business, I was silenced and told to take it up with my Whip. I am the Whip of the Technical Group and I did raise it at the weekly Whips' meeting.
"The Government Chief Whip told me that the Government would not be altering the KPMG review and that it would not provide time to debate this issue. He suggested that we use Private Members' time. This is not just an Opposition issue; it is an issue for the whole House. It is an issue of serious public concern involving public money.
"If the Minister opposite, Deputy Paschal Donohoe, got his hands on an extra €20 million, he would not have to think too hard about how to spend it.
"I urge the Government to reconsider this matter and to give the Bill and the motion the time they deserve. It is in the public interest to do so."
