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22 December 2009
Supreme Court decision on dosts
Geraldine Kennedy, the editor of The Irish Times – an Irish daily newspaper – and its public affairs correspondent Colm Keena who refused to reveal the identity of a source in relation to publication of a legally and politically sensitive article published in 2006, have been ordered to pay all legal costs incurred in relation to its media litigation with the Tribunal of Inquiry into Certain Planning Matters and Payments (commonly known as the Mahon Tribunal). The costs order was made by the Supreme Court notwithstanding the fact that the newspaper succeeded with its appeal not to reveal the identity of the source in question. Kennedy and Keena have been directed to pay an estimated €600,000 legal bill incurred in a case where "exceptional circumstances" justified the granting of the costs order against the successful party.
This case arose after the Mahon Tribunal sought a court order compelling both the editor and correspondent to answer questions relating to the source of an article on financial payments made to Bertie Ahern, the former Irish premier. The article was written by Keena and published in the newspaper in September 2006. It disclosed that the Mahon Tribunal was investigating payments made to Ahern in 1993 when he was Ireland's minister for finance. Kennedy and Keena refused to answer questions relating to the identity of the article's source on the basis of their journalistic right to protect their source.
However, in October 2007 the High Court ordered the pair to appear before the Mahon Tribunal and answer its questions in relation to the source of the article. The Irish Times appealed the decision to the Supreme Court. In July 2009 the Supreme Court found in favour of The Irish Times, thereby vacating the High Court order. According to the Supreme Court, the High Court had placed too much emphasis on the "reprehensible conduct" of the editor and journalist while failing to strike a balance between the competing interests of the tribunal and the newspaper.
The issue of costs was reserved until November 2009.
Supreme Court decision on costs
Chief Justice of Ireland John Murray noted that the Mahon Tribunal wrote to The Irish Times in September 2006 and exercised its statutory power to compel both the newspaper editor and public affairs correspondent to appear before it and answer questions as to the source of the story. Upon receipt of this direction from the tribunal, the newspaper promptly destroyed all documentation relating to the story so as to protect the source.
Murray described the newspaper's reaction as a "calculated and deliberate act of destruction". He said that the destruction of the documentation shifted the balance of power in the newspaper's favour, since it deprived the tribunal of any effective power to conduct an inquiry into the matter. The decision to destroy the relevant documentation also aided the journalists in having the High Court decision (compelling them to reveal their sources) overruled.
The successful party in litigation usually has costs awarded in its favour. However, the courts retain the discretion to make an order for costs against the successful party.
According to the Supreme Court, this was an exceptional case. Citing the "reprehensible conduct" of the newspaper as justification for its decision, the court exercised its discretion and ordered The Irish Times to pay its own costs and those of the Mahon Tribunal for both the High Court action and the Supreme Court appeal.
Speaking on behalf of The Irish Times following the decision to award costs against the newspaper, Kennedy stated that she was disappointed with the ruling and claimed that the newspaper was serving the public interest by publishing the article on Ahern's past activities. The decision to destroy the documentation was borne out of the need to protect journalistic sources. The newspaper has yet to rule out an appeal of the decision to the European Court of Human Rights.
For further information on this topic please contact Hugh Hannigan at Matheson Ormsby Prentice by telephone (+353 1 232 2000), fax (+353 1 232 3333) or email (email@example.com).
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