The Sunday Business Post is facing the possibility of a hefty fine and the imprisonment of one of its journalists after the tribunal yesterday decided to refer its non-co-operation to the High Court.
The tribunal will ask the court early in the new year to restrain the newspaper from publishing material based on confidential documents from the inquiry.
Judge Alan Mahon also announced that he was referring to the court the refusal of journalist Mr Barry O'Kelly to name his sources for earlier leaks from the tribunal. At an earlier hearing, the chairman warned Mr O'Kelly he could face imprisonment if he was found to be in contempt of court.
Last October, the newspaper published two articles by Mr O'Kelly based on confidential documents circulated by the tribunal to parties appearing before it.
When called to appear before the tribunal, Mr O'Kelly refused to divulge his sources and said he had destroyed the documents, in spite of a direction by the tribunal not to do so.
Yesterday, Judge Mahon accused the newspaper of an "unprecedented" and "express act of defiance" which could not be ignored.
The newspaper was effectively challenging the way the tribunal obtained and circulated confidential information.
Its stance also "seriously questioned" the ability of the tribunal to give assurances of confidentiality to people providing information in such circumstances where the information would not be given without these assurances.
The tribunal had decided to go to the High Court "with the greatest reluctance" but "it had little other choice", given its instructions from the Oireachtas and the requirement for confidentiality to allow for fair procedures and to protect the rights of parties to their good name.
The chairman pointed out that the tribunal had taken a variety of steps in the past to stop earlier leaks, including calling in the Garda, but these had failed.
The refusal of the Post to comply with a request not to publish confidential material amounted to a "clear statement" by the newspaper that it would not obey the tribunal's directions.
Legal sources say the newspaper could face a large fine if it is found to be in contempt of a court order.
In a number of recent cases, the courts have imposed substantial fines on companies found to be in breach of their orders, they point out. It is over 30 years since a journalist was jailed for failing to reveal his sources. However, the newspaper is expected to argue in court proceedings that journalists have a legal right to protect their sources since the European Convention on Human Rights came into effect in Ireland earlier this year.
Lawyers for the Post told yesterday's hearing its position had not changed.
Mr O'Kelly was present for the hearing but was not required to give evidence.
In the absence of an editor at the newspaper since the departure of Mr Ted Harding in October, he was accompanied by the news editor, Mr Simon Carswell. A new editor, Mr Cliff Taylor, starts work next month.
After yesterday's hearing, Mr O'Kelly told reporters it was for the High Court to decide the matter. He repeated his refusal to divulge his sources.
