The High Court has adjourned for two weeks a bid by the Mahon tribunal to compel Irish Timeseditor Geraldine Kennedy and public affairs correspondent Colm Keena to disclose the source of confidential information regarding payments made to Taoiseach Bertie Ahern.
The proceedings were on the High Court list for the first time yesterday and were adjourned, on the consent of both sides, to allow the defence file a replying affidavit. When the case comes before the court again in two weeks, it will be for mention only.
In the brief, two-minute application before the president of the High Court, Mr Justice Richard Johnson, Denis McDonald SC, for the tribunal, said the sides had agreed the case could go back for two weeks to allow the defence to put in a replying affidavit. After that, he would be applying to the president to assign a judge to deal with the case, counsel said. The issues would become clear when his side saw the defendants' affidavit, counsel added.
Mr Justice Johnson said the case could require "considerable time" and granted the application to adjourn it for two weeks.
The proceedings have been brought by the Mahon tribunal under Section 4 of the Tribunal of Inquiry (Evidence) (Amendment) Act 1997 and arise from the publication last September of an Irish Timesarticle concerning payments made to Mr Ahern.
The article, written by Mr Keena, was published on September 21st last under the headline: "Tribunal examines payments to Taoiseach".
It quotes the contents of a letter, allegedly seen by Mr Keena, written on behalf of the tribunal to a businessman, David McKenna.
The tribunal says this letter was marked "Strictly private and confidential - to be opened by addressee only".
On September 24th, the tribunal ordered both journalists to produce, by 4.30pm on September 25th, all documents that comprised the communication received by The Irish Timesthat led to the publication of the article. They refused to comply and were subsequently summoned to appear before the tribunal on September 26th.
When they appeared before the tribunal, both refused to provide the documents or to answer questions on the grounds that to do so might identify the source of the information.
Geraldine Kennedy told the tribunal that The Irish Timescould not comply with the order as the relevant material had been destroyed.
The tribunal then initiated the High Court proceedings in which it is seeking orders compelling both journalists to attend before the inquiry, produce the documents and answer questions then and there as to the source of the article.
In its proceedings, the tribunal said it had taken the view that it was essential, both for the tribunal's own purposes and for the protection of those against whom allegations are made, that the utmost confidentiality should be observed in relation to documents circulating during the private investigative stage of the inquiry.
All documents received by the tribunal in its preliminary private inquiry were received under a guarantee of confidentiality, the tribunal said.
The tribunal had become concerned about media articles that appeared to have been based on material circulated by the tribunal in confidence and, in light of that, it had ruled in December 1998 that if there was further publication of confidential material, it would consider applying to the High Court for appropriate relief.
It later brought High Court proceedings against the publishers of the Sunday Business Post, after that newspaper published articles in October 2004 that appeared to be based on confidential documents circulated by the tribunal.
In October 2005, it had secured an interim Supreme Court injunction restraining all parties who had notice of that injunction from publishing confidential material of the tribunal.
However, The Irish Timeshad, on September 21st last, referred to a letter from the tribunal to David McKenna which, it was reported in the article, had been seen by The Irish Times. That letter was clearly marked strictly private and confidential.
It was a matter of very grave concern to the tribunal, notwithstanding the clearly confidential nature of the documents, that the defendants had deemed it appropriate to write an article based on the contents of what was clearly confidential material, which had been obtained as a result of an unauthorised disclosure, the tribunal said.
The tribunal said it believed identification of the source of the material published by The Irish Timeswould exonerate the tribunal itself from any involvement in the alleged disclosure and maintain the confidence of the public, and those who have dealings with the tribunal, in its integrity.
