The High Court has declined to discharge orders restricting RTÉ from publishing confidential banking information and material covered by Irish Bank Resolution Corporation’s legal professional privilege, pending a full trial of the proceedings.
In an interlocutory judgment delivered on 12 June 2015, Mr Justice Binchy varied orders made on 21 May in separate proceedings brought by Denis O’Brien and IBRC. The applications followed public statements and other information entering the public domain. The judgment records that the parties agreed some changes, including that the original order would no longer apply to a statement by IBRC’s Mike Aynsley dated 28 May. O’Brien also accepted that he no longer sought to prevent broadcast of the parts of RTÉ’s proposed script concerning him, as that information was now public.
IBRC maintained that parts of the script referred to or derived from legal advice and should remain protected. RTÉ argued that the existing orders no longer served a purpose and that information already in the public domain should not remain subject to restraint. It also relied on freedom of expression under Article 10 of the European Convention on Human Rights. O’Brien argued that the order covered confidential banking information beyond the script, including material RTÉ had not identified.
The judge said RTÉ continued to hold confidential information and documents belonging to the plaintiffs, but had declined to identify them. He found the plaintiffs had established a “convincing case” that the material was protected by a right of confidence and fell within an exception to Article 10. He also noted evidence from O’Brien that further disclosure could cause significant, unquantifiable financial losses, for which damages would not be an adequate remedy. Those were findings at this stage, not a final determination at trial.
The court therefore refused to vacate the existing orders and instead amended them to account for developments since 21 May. As to IBRC’s legal advice, the judge was not prepared to lift the restraint to permit publication of material that disclosed or was clearly derived from legal advice, or communications between IBRC and its lawyers, unless satisfied that the information was already public. He said that, at this interlocutory stage and pending full argument, IBRC’s privilege should prevail over RTÉ’s Article 10 rights.
The judgment did not decide whether any particular legal-advice material in the proposed script was already in the public domain. The court said it could hear submissions on that question if necessary. The proceedings remained for full trial.