The High Court has ruled that Professor Laurence Tribe may not give expert evidence at the forthcoming trial of Denis O’Brien’s case against the Clerk of Dáil Éireann, members of the Dáil’s Committee on Procedure and Privileges, Ireland and the Attorney General.
President of the High Court Mr Justice Kelly gave the ruling on 3 November 2016. The application concerned whether evidence from Tribe, a US constitutional law professor, could be admitted and, if so, whether it was reasonably required to help the court determine the proceedings. The judgment records that the defendants objected to the evidence on both grounds.
The underlying proceedings arise from O’Brien’s claims about parliamentary statements concerning his banking affairs and the Committee’s consideration of complaints about those statements. Those claims remain allegations in the pleadings summarized in this ruling. O’Brien seeks declarations concerning the effect of the statements on separate proceedings against RTÉ, alleged interference with the courts, his rights, and the Committee’s interpretation of its standing orders and handling of his complaints.
Justice Kelly said the claims to be decided at trial were rooted in Irish law, principally the Constitution, as well as statute and common law. He found that no issue of foreign law would have to be decided. Expert evidence may be received where foreign law must be proved as a fact, the judgment said, but an expert cannot give evidence on domestic law. The judge added that this remained so regardless of an expert’s eminence.
The judgment noted that Tribe did not purport to be an expert on Irish law, but that his draft evidence made observations about it and discussed decisions from the United States, the United Kingdom, Australia, New Zealand and South Africa. The court said decisions from other jurisdictions could be cited and advanced as persuasive authorities, without calling experts to give evidence about those legal systems.
Justice Kelly ruled Tribe’s proposed evidence inadmissible. He also addressed the separate question under Order 36, rule 58 of the Rules of the Superior Courts, although he said it was unnecessary to decide it after his admissibility ruling. He stated that, even if the evidence were admissible, it was not reasonably required to determine the claim and should be disallowed.
The order was limited to whether Tribe’s evidence could be adduced at the forthcoming trial. This ruling did not determine the underlying claims or the other issues awaiting trial.