The Supreme Court is to hear an appeal next week by the Mahon planning tribunal against last year's High Court decision to refuse a perpetual injunction barring a newspaper from publishing certain documents circulated by the tribunal.
In October 2005, the tribunal lost its High Court bid to stop the Sunday Business Post publishing documents that the tribunal had circulated to a limited number of persons with a direction the material remain confidential in advance of a public hearing.
Following that judgment, the tribunal was granted an interlocutory injunction by the Supreme Court pending the outcome of an appeal. This is now scheduled to be heard on Monday and Tuesday.
In a reserved High Court judgment last year, Mr Justice Peter Kelly refused to grant a perpetual injunction against the Sunday Business Post.
The proceedings arose after the newspaper in October 2004 published two articles relating to the tribunal's area of inquiry. One was headlined "Jim Kennedy's pipe dream" and the other "Fifty councillors named in new planning tribunal list". The tribunal said confidential tribunal documents formed the basis of the articles.
In his decision, Mr Justice Kelly said it was clear the tribunal made no distinction between information obtained by it from a third party in circumstances where an assurance of confidentiality was given to such a party and material that was not covered by such an assurance.
In his view, the injunctions sought by the tribunal went much too far and sought to enforce "a species of confidentiality created unilaterally by the tribunal".
He said the confidentiality that the tribunal sought to establish was all-encompassing and captured every document and piece of information in the brief that the tribunal circulated.
Such confidentiality took no account of the nature or source of the information in that brief, but the tribunal sought to extend it to information already in the public domain.
"In my view the court could not contemplate granting an injunction of the type sought," the judge said.
The right of the press to report was not an unfettered one, the judge added. However, if it was to be curtailed by court order there had to be a sound legal basis.
