A claim by the Mahon tribunal that material circulated by it is confidential does not mean the material in question is "actually confidential", counsel for the Sunday Business Posttold the Supreme Court.
Eoin McCullough SC, for Post Publications Ltd, publishers of the Sunday Business Post, said he remained "unclear" about exactly what form of order was being sought by the tribunal against his client.
The tribunal seemed to be seeking to restrain publication of all material which it circulates prior to public hearings.
Because the tribunal asserted that all information which it receives is "confidential", the tribunal was effectively asking for an order restraining publication of any material given to it, he said.
It was only now, two years after the High Court refused in December 2004 to grant orders restraining publication by the Sunday Business Postof any material circulated by the tribunal, that the tribunal was saying the orders it had sought then from the High Court were too wide. However, pending the outcome of this Supreme Court appeal, it had secured similar orders restraining such publication.
There was no evidence on which the court could grant either the order sought by the tribunal or a narrower order, counsel said. The rationale for such an order appeared to be that publication could prejudice third parties, he said.
Agreeing with Mr Justice Hardiman that the tribunal is also arguing the information is confidential, counsel said there was no evidence the material in question was confidential - contained in two articles of October 2004, headlined "Jim Kennedy's pipe dream" and "Fifty councillors named in new planning tribunal list".
He agreed the information was stamped "confidential" and that the newspaper published a photograph featuring part of the document but said the tribunal stamped all its documents in that manner.
Asked whether it mattered to the newspaper if the material was confidential, counsel said the newspaper would have to weigh up the merits of publication.
If his client published confidential information, it was subject to the law on defamation. He could not maintain his client was entitled to breach the law.
