The High Court refused a request by the Tribunal of Inquiry into Certain Planning Matters and Payments for a permanent injunction restricting the Sunday Business Post from publishing information or documents circulated confidentially by the Tribunal. Mr Justice Kelly held that the proposed orders swept too widely and would impose a disproportionate restriction on press freedom.
The case was heard as the trial of the action after the parties agreed to that procedure. There was no oral evidence. The Tribunal sought to continue, on a permanent basis, restrictions first imposed temporarily by Mr Justice Finnegan in December 2004. The court decided only whether to grant the future restraints sought; it did not make findings on the allegations reported in the newspaper’s articles.
The Tribunal said that the newspaper had published material in October 2004 drawn from documents circulated to a limited number of people ahead of public hearings. It also said that one article identified people whom the Tribunal had directed should not yet be named. The Tribunal argued that advance publication could harm the rights of people affected by allegations and obstruct its work. The newspaper disputed that the Tribunal could make all material in a circulated brief confidential, particularly documents already public or not supplied in confidence. It also argued that the requested orders were too vague and would impede reporting on the inquiry.
Mr Justice Kelly said the Tribunal’s proposed orders treated every item in a brief as confidential, whatever its source or nature. He concluded that the Tribunal had no authority to create such broad confidentiality by policy alone, and that a direction by the Tribunal could not make public information confidential. He noted that genuinely confidential material might be capable of protection, but the application did not distinguish it from material in the public domain or otherwise lacking the necessary quality of confidence.
The judge also found the restraints disproportionate under the freedom-of-expression protections in the Constitution and Article 10 of the European Convention on Human Rights. Their scope, he said, could prevent publication of public material and would restrict the newspaper more than necessary. The court did not attempt to draft a narrower order, citing the need for precise terms and insufficient information to identify what material merited protection.
The requested relief was refused. The ruling did not determine whether any particular document in the newspaper’s articles was confidential or whether the newspaper’s past publications were lawful.