The Supreme Court has reserved judgment on the issue of costs arising from the successful appeal by two Irish Timesjournalists against a case taken by the Mahon tribunal.
Lawyers for The Irish Timesand the tribunal both argued today that they should be awarded costs in the case, which are likely to run into six figures.
Last August, the court upheld an appeal by Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena against an order requiring them to answer questions at the tribunal about the source of an article revealing payments to former taoiseach Bertie Ahern.
The court ruled unanimously that the High Court had erred in the exercise of balancing the rights of the journalists not to disclose their sources against the need of the inquiry to investigate the source of leaks.
This morning, Donal O'Donnell SC, for The Irish Times, told the Supreme Court that costs normally follow the event (outcome) in a case and the court should be very slow to deviate from this principle. The costs of the High Court case and the appeal to the Supreme Court should be awarded to the newspaper, he argued.
However, Michael Collins SC, for the tribunal, said the balance struck by the High Court between the respective rights of the journalists and the tribunal had been strongly influenced by the conduct of the journalists in destroying the document that was the source of the leak.
To that extent, the journalists, through their own wrongdoing, had contributed to the unfavourable result in the High Court.
Mr Collins also pointed out Mr Justice Nial Fennelly, in his Supreme Court judgment, had described the destruction of the document by the journalists as “reprehensible”. He also argued costs should be awarded to the tribunal because the issue at hand was a new point of public importance.
This morning, Mr Justice Fennelly said the document had been destroyed deliberately to prevent the possibility of it being used as evidence before the courts. “It was impossible to investigate the provenance of the document because that was what your clients wanted to achieve,” he told Mr O’Donnell.
Mr O’Donnell replied that the court should be slow to express any general disapproval of the conduct of his clients. The case had been conducted successfully on technical grounds and there was no basis for depriving his client of their costs.
The case was sparked by an article written by Mr Keena in The Irish Timesin September 2006 which revealed the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance.
The article, which the tribunal said was based on a confidential document, said businessman David McKenna was among three or four persons contacted by the inquiry about payments totalling between €50,000 and €100,000.
The article sparked controversy over the finances of Mr Ahern, who resigned in May 2008, and an investigation by the tribunal.
