Appendix FF
Order 58, rule 15
No. 1
SUPREME COURT
Application for Leave and Notice of Appeal
For Office use
Supreme Court record number of this appealSubject matter for indexing
Leave is sought to appeal from
The Court of Appeal / X / The High Court
[Title and record number as per the High Court proceedings]
DENIS O’BRIEN / V / CLERK OF DÁIL ÉIREANN, SEAN BARRETT, JOE CAREY, JOHN HALLIGAN, MARTIN HEYDON, PAUL KEHOE, JOHN LYONS, DINNY MCGINLEY, SEÁN Ó FEARGHÁIL, AENGUS Ó SNODAIGH AND EMMET STAGG (MEMBERS OF THE COMMITTEE ON PROCEDURE AND PRIVILEGES OF DÁIL ÉIREANN), IRELAND AND THE ATTORNEY GENERALHigh Court Record Nr / 2015/4888P / Court of Appeal Record Nr
Date of filing / 9 June 2017
Name(s) of Applicant(s)/Appellant(s) / Denis O’Brien
Solicitors for Applicant(s)/Appellant(s) / William Fry
Name of Respondent(s) / Clerk Of Dáil Éireann, Sean Barrett, Joe Carey, John Halligan, Martin Heydon, Paul Kehoe, John Lyons, Dinny Mcginley, Seán Ó Feargháil, Aengus Ó Snodaigh And Emmet Stagg (Members Of The Committee On Procedure And Privileges Of Dáil Éireann), Ireland And The Attorney General
Respondent’s solicitors / Office of the Parliamentary Legal Adviser (in respect of the first to eleventh defendants) ; Chief State Solicitor (in respect of the twelfth and thirteenth defendants)
Has any appeal (or application for leave to appeal) previously been lodged in the Supreme Court in respect of the proceedings?
Yes / X / No
If yes, give [Supreme Court] record number(s)
Are you applying for an extension of time to apply for leave to appeal? / Yes / X / No
If Yes, please explain why
1. Decision that it is sought to appeal
Name(s) of Judge(s) / Ms. Justice Ní RaifeartaighDate of order/ Judgment / 12 May 2017(perfected Order) ; 31 March 2017 (substantive judgment), 2 May 2017 (costs judgment)
2. Applicant/Appellant Details
Where there are two or more applicants/appellants by or on whose behalf this notice is being filed please provide relevant details for each of the applicants/appellants
Appellant’s full name / Denis O’BrienOriginal status / X / Plaintiff / Defendant
Applicant / Respondent
Prosecutor / Notice Party
Petitioner
Solicitor
Name of firm / William Fry
Email /
Address / 2 Grand Canal Square, Dublin 2. / Telephone no. / 01-6395000
Document Exchange no. / 23 Dublin
Postcode / DO2 A342 / Ref. / 012350.0360.OOS/DMD/GSV
How would you prefer us to communicate with you?
Document Exchange / X / E-mail
Post / Other (please specify)
Counsel
Name / Michael Cush SC
Email /
Address / 2 Arran Square, Arran Quay, Dublin 7 / Telephone no.
Document Exchange no.
Postcode
Counsel
Name / Eileen Barrington SC
Email /
Address / 2 Arran Square, Arran Quay, Dublin 7 / Telephone no. / 01 873 42 64
Document Exchange no. / 816417
Postcode
Counsel
Name / Darren Lehane BL
Email /
Address / 1 Arran Square, Arran Quay, Dublin 7 / Telephone no. / 01 817 7697
Document Exchange no. / 816126
Postcode
Counsel
Name / Francis Kieran BL
Email /
Address / The Distillery Building, 145-151 Church Street, Dublin 7. / Telephone no. / 01 817 4531
Document Exchange no. / 813192
Postcode
If the Applicant / Appellant is not legally represented please complete the following
Current postal address / n/ae-mail address
Telephone no.
How would you prefer us to communicate with you?
Document Exchange / X / E-mail
Post / Other (please specify)
3. Respondent Details
Where there are two or more respondents affected by this application for leave to appeal, please provide relevant details, where known, for each of those respondents
Respondents’ full names / Clerk Of Dáil Éireann, Sean Barrett, Joe Carey, John Halligan, Martin Heydon, Paul Kehoe, John Lyons, Dinny Mcginley, Seán Ó Feargháil, Aengus Ó Snodaigh And Emmet Stagg (Members Of The Committee On Procedure And Privileges Of Dáil Éireann), Ireland And The Attorney GeneralOriginal status / Plaintiff / X / Defendant / Is this party being served with this Notice of Application for leave?
Applicant / Respondent
Prosecutor / Notice Party
Petitioner / Yes / X / No
Solicitor (in respect of the first to eleventh respondents)
Name of firm / Office of the Parliamentary Legal Adviser
Email /
Address / Houses of the Oireachtas,
Leinster House,
Dublin 2. / Telephone no. / 01 6183112
Document Exchange no. / N/A
Ref. / N/A
Postcode / D02 XR20
Has this party agreed to service of documents or communication in these proceedings by any of the following means?
Document Exchange / E-mail
X / Post / Other (please specify)
Counsel
Name / Michael M. Collins SC
Email /
Address / 4 Arran Square
Arran Quay
Dublin 7 / Telephone no. / 01 817 4388
01 872 1407
Document Exchange no. / 811018
Postcode
Counsel
Name / Sara Moorhead SC
Email /
Address / Law Library
158/159 Church Street
Dublin 7 / Telephone no. / 01 817 4950
Document Exchange no. / 810110
Postcode
Counsel
Name / David Fennelly BL
Email /
Address / Law Library
Four Courts
Dublin 7 / Telephone no. / 01 817 4980
Document Exchange no. / 812007
Postcode
Solicitor (in respect of the twelfth and thirteenth respondents)
Name of firm / Chief State Solicitor
Email /
Address / Chief State Solicitor’s Office, Osmond House, Little Ship Street, Dublin 8. / Telephone no. / 01 417 6100
Document Exchange no. / 186-001
Ref. / AB/2015/02751
Postcode / D08 V8C5
Counsel
Name / Maurice G. Collins SC
Address / 2 Arran Square
Arran Quay
Dublin 7 / Telephone no. / 01 817 4788
01 872 9533
Document Exchange no. / 812015
Postcode
Counsel
Name / Conor Power SC
Email /
Address / 1 Arran Square
Dublin 7 / Telephone no. / 01 444 9896
Document Exchange no. / 816564
Postcode
Counsel
Name / John D. Fitzgerald BL
Email /
Address / Law Library
Four Courts
Dublin 7 / Telephone no. / 01 817 5624
Document Exchange no. / 816619
Postcode
If the Respondent is not legally represented please complete the following
Current postal address / N/Ae-mail address
Telephone no.
Has this party agreed to service of documents or communication in these proceedings by any of the following means?
Document Exchange / E-mail
X / Post / Other (please specify)
4. Information about the decision that it is sought to appeal
Please set out below:Whether it is sought to appeal from (a) the entire decision or (b) a part or parts of the decision and if (b) the specific part or parts of the decision concerned
It is sought to appeal from parts of the decision namely:
- The High Court’s finding dismissing the case of the Plaintiff/Appellant (hereinafter, for convenience, ‘the Plaintiff’) against the Committee on Procedure and Privileges of Dáil Éireann (‘the Committee’) on the ground that the said case was non-justiciable (referred to in the judgment as the ‘Second limb’ of the Plaintiff’s case) and the consequent refusal of the reliefs sought in the Statement of Claim against the Committee.
- The High Court’s order that the Plaintiff pay the Defendants’ costs.
(a) A concise statement of the facts found by the trial court (in chronological sequence) relevant to the issue(s) identified in Section 5 below and on which you rely (include where relevant if certain facts are contested)
The learned Judge summarised the facts at paragraph 2 of her judgment as follows:
o The Plaintiff, Mr. O’Brien, obtained an interlocutory injunction from the High Court on the 30th April, 2015, in order to protect certain banking information which he anticipated would be broadcast by RTÉ as part of a documentary concerning Irish Bank Resolution Corporation.
o Over the course of a number of dates subsequent to the granting of the injunction, two members of Dáil Éireann revealed most of the information the subject of the injunction by way of utterances on the floor of the House.
o As a consequence, the Plaintiff was forced to concede on successive dates before the Court which had seisin of the injunction proceedings that the orders made had to be substantially varied, until a point was reached when almost nothing was left covered by the injunction.
o The Plaintiff lodged written complaints relating to the utterances with the Dáil Committee on Procedure and Privileges.
o The Committee considered these complaints and ruled that the Deputies had not breached the relevant Dáil Standing Order.
o The Committee communicated this to the Plaintiff by letter, although, in one instance, the plaintiff learned of the ruling by reading the Irish Times newspaper before he received any letter from the Committee.
The learned Judge found as a fact at paragraph 108 that:
"…the utterances rendered the court proceedings almost entirely moot; that damage was undoubtedly done to the plaintiff; and that the release of the information appears to have been done in a deliberate and considered manner by the Deputies in question. This was as far from an accidental slip of the tongue on the floor of the House as one could imagine."
A more detailed chronology of the relevant facts is set out at paragraphs 13 to 34 of the judgment.
The determination of Dáil Éireann’s Committtee on Procedures and Privileges (‘the Committee’) to the effect that the utterances of Deputy Catherine Murphy had not breached the Standing Orders of the Dáil was communicated under cover of letter of 15 June 2015 and in respect of the utterances of Deputy Pearse Doherty was communicated under cover of letter of 3 July 2015, as set out at paragraph 110 of the judgment. As is apparent from paragraph 30 of the judgment, the Committee found that Deputy Murphy's utterances were inter alia made "in a responsible manner" and "in good faith". It was common sense that the Committee arrived at its conclusions without seeking or obtaining any response from either Deputy to the Plaintiff's complaint.
(b) In the case where it is sought to appeal in criminal proceedings please provide a concise statement of the facts that are not in dispute
Not applicable
The relevant orders and findings made in the High Court and/or in the Court of Appeal
The High Court found all of the issues raised in the proceedings to be non-justiciable and accordingly refused to grant any of the reliefs sought by the Plaintiff on his Statement of Claim.
The High Court ordered that the Plaintiff pay the Defendants’ costs.
5. Reasons why the Supreme Court should grant leave to appeal
In the case of an application for leave to appeal to which Article 34.5.3° of the Constitution applies (i.e. where it is sought to appeal from the Court of Appeal)―Please list (as 1, 2, 3, etc) concisely the reasons in law why the decision sought to be appealed involves a matter of general public importance and / or why in the interests of justice it is necessary that there be an appeal to the Supreme Court
In the case of an application for leave to appeal to which Article 34.5.4° of the Constitution applies (i.e. where it is sought to appeal to the Supreme Court from the High Court)―
Please list (as 1, 2, 3, etc) concisely the reasons in law:
i. why the decision sought to be appealed involves a matter of general public importance and / or why in the interests of justice it is necessary that there be an appeal to the Supreme Court and
1. The application for leave to appeal meets the constitutional requirements both in respect of general public importance and in respect of the interests of justice. It gives rise to important issues regarding the powers of the Courts to grant declaratory relief with respect to actions of Oireachtas Committees, including in a situation (such as the present appeal) where the warrant and/or necessity for judicial intervention is heightened by the fact that matters which are the subject of the Committee’s jurisdiction have rendered extant judicial proceedings to be “almost entirely moot” (paragraph 108 of the High Court judgment).
2. An appeal is in the interests of justice because the High Court judgment has the effect of leaving the Plaintiff, and persons who may become similarly affected in the future, without any remedy at all in circumstances where Oireachtas committees fail to properly apply Standing Orders with respect to utterances within the Houses.
3. An appeal is also of public importance and in the interests of justice because the effect of the High Court judgment is that future court orders are at risk of being unwound or rendered moot by parliamentary utterances, without the relevant Committees being required or obliged to exercise any proper oversight. The High Court judgment gives rise to serious breaches of the separation of powers occurring and/or effectively being condoned. The High Court judgment also appears (at paragraph 127) to foreclose the prospect of even judicial criticism or comment with respect to how an Oireachtas committee deals with complaints about utterances.
4. The general public importance of the case was noted by the learned Judge herself in the first paragraph of her judgment when she stated: “This case raises important issues as to the role of the Court when the principle of comity is breached.”
5. The general public importance of the issues to which the case gives rise was also articulated in the further statement of the learned Judge at paragraph 131 that: “…at the most general level that there seems be at least some ambiguity and lack of clarity as to procedures and parameters concerning speech potentially trenching on sub judice matters.”
6. The public importance of the case was also accepted by others. The first paragraph of the Written Submissions on behalf of Ireland and the Attorney General described the issues as being of “fundamental constitutional importance”. Kelly P. at paragraph 32 of his interlocutory judgment on expert evidence ([2016] IEHC 597) stated that: “This case does raise interesting and important questions and the court may well have to decide issues not adjudicated on before …”.
ii. why there are exceptional circumstances warranting a direct appeal to the Supreme Court
1. The key authorities which gave rise to the learned Judge’s determination in the Court below, including on the ‘second limb’ of the case which is the subject of the present appeal, were Supreme Court authorities, including Re Haughey [1971] IR 217, Maguire v Ardagh [2002] 1 IR 385 and Callely v Moylan [2014] 4 IR 112 (‘Callely’).
2. Any clarification of the relevant authorities which may be necessary to the resolution of the present appeal can only occur, or in the alternative can best and most preferably occur, in the Supreme Court, rather than in the Court of Appeal.
3. In this respect, the learned Judge herself noted at paragraph 123: “It is a little more complex to assess the impact of the Callely case upon the justiciability issue arising in the present case.” She also stated at paragraph 124 regarding Callely: “it is not entirely clear to me whether the judgments of Murray, Hardiman and McKechnie JJ. can necessarily be read as supporting the view that the present type of inquiry would be justiciable, notwithstanding their broad comments to the effect that inquiries conducted pursuant to Article 15.10 are justiciable.” Such complexities and/or uncertainties are virtually certain and/or very likely to also affect any hearing in the Court of Appeal, and/or could give rise to a further application to appeal from any judgment either way of that Court, which is a reason why a direct appeal is warranted.
4. Furthermore, when discussing the scope of the immunity conferred by Article 15.12 of the Constitution (admittedly in the context of the first limb of the Plaintiff’s case, which may nonetheless be of relevance to considerations of justiciability under the second limb) the learned Judge stated at paragraph 59 of the Supreme Court judgment of Finlay C.J. in Hamilton (No. 2) [1993] 3 IR 227:
“In the passage at page 268 … he did not explicitly express a view one way or another on the suggestion that Article 15, s. 12 applies to documents while Article 15, s. 13 applies to persons. His comments in the relevant passage at page 268 could, in my view, be read as implicitly supporting either proposition i.e. that there is or is not such a distinction.”
5. The fact that the authorities underpinning the judgment in the High Court are Supreme Court authorities is of heightened importance, given that the learned Judge found at paragraph 90: “I was referred to a considerable amount of non-Irish authority, which were of interest but could not carry anything like the weight of the above Irish decisions.” To the extent that greater weight is to be attributed to foreign authority than has heretofore been the case, it is submitted that the Court of Appeal (being bound in all events by Supreme Court authority) is not best positioned to do so.
6. The application for leave to appeal gives rise to a “single important issue of law” and falls on that end of the “spectrum” referred to at paragraph 13 of this Court’s Determination in Persona [2016] IESCDET 106, as opposed to issues which are “…many and varied, including questions of the sustainability of the facts found by the trial judge”.
6. Ground(s) of appeal which will be relied on if leave to appeal is granted