O’Brien wants US report in evidence
Mr O’Brien, who will give evidence in the case himself, claims there is no such absolute privilege on grounds including that utterances in the House must not usurp the judicial domain and must be linked to the legislative process. If those claims are upheld, that has major implications for proceedings in the Oireachtas.
A pre-trial application to have the court admit into evidence a 60-page report from Laurence Henry Tribe of Harvard Law School was made yesterday by Michael Cush SC, for Mr O’Brien.
Mr Cush said this was a “unique and important” case based on “stark” facts concerning Dáil statements made by Social Democrats TD Catherine Murphy and Sinn Féin TD Pearse Doherty about his client’s banking affairs.
Evidence as to US law was relevant to the issues raised, he argued. It would be “appropriate and helpful” to look at authorities from other jurisdictions and the issue for examination was the interplay between the various pillars in a democracy.
Issues relevant to this case were shared with other jurisdictions, he said, such as the explicit separation of powers written into the Constitution, he said.
Sara Moorhead SC, for the Dáil committee on procedure and privileges, and Maurice Collins SC, for the State, argued there is no provision under which the Irish courts can hear such evidence.
Prof Tribe’s evidence has no relevance to Irish constitutional law; if US law was deemed relevant then so too could precedent from several other countries and Mr O’Brien’s case could turn into “a constitutional convention” if such evidence were admissible, Mr Collins argued.
The issue in Mr O’Brien’s case was one of Irish, not US law and the report at issue was “not a report on US law, its purpose is to advocate a result in these proceedings”, to say his views on US law should be taken as evidence on Irish law and that was “simply not admissible”.
Mr Collins said it seemed, in counsel’s experience, that every case by Mr O’Brien was described as “unique and important”.
Mr Justice Peter Kelly, said he would give his decision as to whether the evidence was admissible on a later date. The judge previously refused an application by Mr Cush to have the action, fixed for hearing on November 29, heard by a three judge High Court.
Mr O’Brien has claimed that utterances by Ms Murphy and Mr Doherty in the Dáil in May and June 2015 respectively breached his rights in forcing him to later concede in the High Court in June 2015 a script which he had sought to prevent RTÉ publishing concerning his banking affairs with IBRC, and which he had successfully injuncted, was by then in the public domain.
The Dáil committee on procedure and privileges, in response to complaints by Mr O’Brien, held neither deputy had breached the standing orders governing debate in the Dáil.
