The Supreme Court has ordered Irish Times journalist Colm Keena and editor Geraldine Kennedy to pay the legal costs of the Mahon Tribunal in both the High Court and Supreme Court, despite having won their substantive appeal.
The costs ruling followed the court’s earlier judgment of 31 July 2009 overturning a High Court order which had required Keena and Kennedy to comply with a tribunal direction and answer questions about the source of a leaked confidential letter.
The Tribunal of Inquiry into Certain Planning Matters and Payments had sent the letter to a potential witness during the confidential phase of its work. Its contents later appeared in an Irish Times article written by Keena, who had received a copy anonymously.
After the tribunal sought the document, Kennedy asked Keena to destroy material connected with the story in order to protect journalistic sources. He did so, and Kennedy also destroyed copies in her possession.
The Supreme Court had nevertheless allowed their appeal because it found that the High Court had not correctly balanced journalistic privilege, derived from freedom of expression, against the tribunal’s public interest in identifying the source of the leak.
The separate question was who should pay the costs.
Chief Justice Murray, delivering the court’s ruling on 26 November 2009, said the deliberate destruction of the documents had deprived the tribunal of any meaningful opportunity to investigate the leak. The court described that conduct as calculated, deliberate and directly related to the outcome ultimately reached.
Although successful parties would normally expect to recover their costs, the Supreme Court held that this was an exceptional case. Keena and Kennedy’s conduct deprived them of that usual benefit.
The tribunal, by contrast, had been entitled to investigate the leak and seek assistance from the High Court.
The court therefore ordered Keena and Kennedy to pay the tribunal’s costs in both courts.