THE MAHON tribunal is seeking the substantial legal costs of its failed three-year battle for a court order requiring Irish Times Editor Geraldine Kennedy and Public Affairs Correspondent Colm Keena to answer questions relating to the source of an article about financial payments to former taoiseach Bertie Ahern.
Opposing that application yesterday, Donal O’Donnell SC, for the journalists, said they were entitled to costs as they won the case and there were no special circumstances justifying departure from the normal rule that costs go to the successful litigant.
The five-judge Supreme Court, presided over by the Chief Justice, Mr Justice John Murray, reserved judgment.
Last July, the Supreme Court unanimously allowed the journalists’ appeal against a High Court order requiring them to answer questions from the tribunal relating to the source of the article, written by Mr Keena and published in The Irish Times in September 2006.
The article disclosed the tribunal was investigating payments to Mr Ahern in 1993 when he was minister for finance and stated businessman David McKenna was among persons contacted by the tribunal about payments totalling between €50,000 and € 100,000.
The tribunal claimed the article was based on a confidential letter sent by it to Mr McKenna and, in October 2007, a three-judge High Court ordered the journalists to answer the tribunal’s questions relating to the source of the article.
The Supreme Court quashed that order after finding the High Court, by placing too much emphasis on the “reprehensible” conduct of the journalists in destroying the document related to the source, failed to strike the proper balance between the tribunal’s right to protect its private investigative phase and the journalists’ right to protect the source.
Any restrictions on freedom of expression generally must be justified by an “overriding requirement in the public interest”, the court ruled.
Mr O’Donnell, seeking costs for the journalists, said a costs order should not be based on a general view adopted by the court on the destruction of documents.
The Supreme Court accepted the High Court fell into error because of its view on the journalists’ conduct and the appeal costs were correctly incurred because the High Court got it wrong.
In exchanges with Mr O’Donnell, Mr Justice Nial Fennelly said that destruction meant it was “impossible” for the tribunal to investigate the provenance of the document or for the court to inquire into the proper balance between the tribunal’s right to protect its private investigative phase and the journalists’ right to protect sources.
Mr O’Donnell said the court should be “very slow” to express disapproval of conduct via a costs order when that conduct was not of the case itself.
Seeking the tribunal’s costs, Michael Collins SC said the journalists’ own wrongdoing in destroying the documents brought about the favourable result which they ultimately got from the Supreme Court.
While the Supreme Court had found such reprehensible conduct should not be the decisive factor in the court’s ruling, Mr Collins added, there was still a need to mark disapproval of that conduct and, should the court not award the tribunal its costs, that would be “a positive acquiescence” in such conduct.
