Businessman Denis O'Brien expects to spend 12 hours giving evidence in person to the High Court next week in his challenge to the legal privilege enjoyed by members of the Oireachtas.
In what observers expect will be a robust and uncompromising attack on TDs Catherine Murphy and Pearse Doherty, together with an equally staunch defence of his own position, Mr O'Brien is likely to be in the witness box across three days if he takes all the time he has indicated to his legal team that he believes he will need.
When the hearing of the case begins next Tuesday, Mr O’Brien is expected to argue that absolute privilege does not exist for members of the Oireachtas, and that TDs and Senators do not have a right to, as he will argue, usurp the role of the courts.
Legal argument
It is believed lawyers for the Oireachtas may decide not to cross-examine Mr O’Brien, preferring to rely instead on legal argument.
This will centre on article 15, section 13, of the Constitution, which states that TDs and senators “shall not, in respect of any utterance in either House, be amenable to any court or any authority other than the House itself”. In effect, this means that a TD or senator cannot be sued for anything they say in the Oireachtas.
Mr O'Brien objected when, on several dates in May and June 2015, Social Democrats TD Ms Murphy and Sinn Féin's Mr Doherty questioned his purchase of Siteserv (a company involved in the installation of water meters and now known as Actavo) and his banking arrangements with Anglo Irish Bank, later renamed the Irish Bank Resolution Corporation (IBRC).
Injunction
He argued that remarks in the Dáil were in breach of a High Court injunction against RTÉ, and which he said applied to all other media as well, preventing publication of his banking arrangements with IBRC.
These included Mr O’Brien’s contention that a verbal agreement he said he had with the bank on an interest rate to be applied to his Anglo loans, and subsequently IBRC, should be honoured by the liquidator of IBRC.
Following Ms Murphy’s Dáil comments, lawyers for Mr O’Brien threatened other media that they would be in breach of the injunction if they reported what she had said. This was later clarified by the High Court not to be the case.
Conduct
Lawyers for Mr O’Brien complained about Ms Murphy and Mr Doherty to the Ceann Comhairle and Leas Cheann Comhairle, who are responsible for the running of the Dáil.
On June 15th, 2015, he was told that the Committee on Procedure and Privileges, which rules on the conduct of TDs, found that Ms Murphy had not breached standing orders as her comments were made “on the floor of the House in a responsible manner, in good faith and as part of the legislative process”.
On July 3rd, 2015, Mr O’Brien’s lawyers were told the committee had concluded Mr Doherty’s “exercise of his constitutional freedom of speech” in the Dáil fell outside the scope of, and did not contravene, the standing order regulating debate in the House.
Mr O’Brien alleges that, as far as he is aware, the committee received no submissions from either TD about his complaints before making its findings and, if it had, he was given no opportunity to respond to such submissions. This, he alleges, breaches his right to fair procedures.
Right to privacy
He also contends that the original Dáil comments also breached his right to privacy.
The Oireachtas legal team’s eschewing of cross-examination of Mr O’Brien may change if he makes what either TD regards as outlandish claims about them or questions their integrity.
Mr O'Brien's efforts to have three judges hear his case, as well as to call a Harvard University-based US constitutional legal expert, were turned down by the president of the High Court, Mr Justice Peter Kelly.
