A long-running damages claim brought by former Rehab chief executive Angela Kerins relies on the actions, rather than the utterances, of a Dáil Public Accounts Committee (PAC), her lawyers have told a seven-judge Supreme Court.
Senior counsel John Rogers said Ms Kerins has “never sought to litigate the utterances” made by elected Dáil members of the committee when she appeared before them in February 2014, he said.
Instead, she claims she suffered injuries and reputational damage due to the examination and the process the PAC engaged in without jurisdiction and without regard for her rights to privacy and to be dealt with fairly, he said.
Ms Kerins is appealing to the Supreme Court for the second time as part of her action, initiated in 2014, for damages arising out of alleged misfeasance in public office.
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The impact of being subjected to a “witch hunt” style of questioning, when she appeared before the committee in February 2014 amid controversy over her €240,000 salary, caused her to become so unwell that she attempted to take her own life. She resigned from her position that April.
Her claims about the PAC have been denied.
Last July, the High Court dismissed her pre-trial application for certain documents held by the Dáil that she says will assist her case. Mr Justice Alexander Owens said article 15.13 of the Constitution precluded him from entertaining her request as “the gravamen of her claim calls for judgment on speech and debate by members of Dáil Éireann”.
Her claim for damages was “not maintainable” due to the constitutional protection placed on utterances in the Dáil, which extends to activities of committees within the Houses of the Oireachtas, he said.
While making submissions on Tuesday– the first day of her appeal of this ruling– Ms Kerins’s counsel, Mr Rogers, placed heavy emphasis on a 2019 Supreme Court ruling made in the first module of Ms Kerins’s case.
The court found in 2019 that the PAC acted unlawfully as a whole by straying significantly outside its terms of reference and the terms of an invitation to her, which permitted questioning about her salary and the operation by Rehab of three State-funded schemes.
The Supreme Court refrained from making any finding that trenched on the protected speech of the committee’s members.
Mr Rogers said the High Court over-emphasised the influence of article 15.13 (which confers privileges on Oireachtas speech) in this case which relates to the actions and processes of the PAC, rather than its members’ comments.
The committee persisted, without jurisdiction, in pursuing an application to examine her again following the February sitting. That, said Mr Rogers, was a “collective action”.
Mr Justice Gerard Hogan asked how Ms Kerins’s case can “separate the dancer from the dance”, by proving, without impugning the committee members’ speech, that the committee’s actions caused her damage.
Mr Rogers said the court can “look at the utterances, not to impugn them, but to establish what has gone wrong”. The Supreme Court already did this when ruling in 2019, he added.
Her case was also supported by various utterances made by some of the PAC members when they were outside the committee chamber, he said.
He gave the example of former independent TD Shane Ross allegedly stating during a radio interview that the PAC secured Ms Kerins’s resignation from Rehab.
He urged the judges not to pre-empt the outcome of the damages claim when considering whether this pre-trial discovery application should have been granted.
The court is due to hear on Wednesday from the respondent parties: Dáil Éireann, Ireland and the Attorney General.
