The Mahon Tribunal has failed in a legal bid to stop the Sunday Business Post from publishing documents which the tribunal had deemed confidential.
In a High Court judgment today, Mr Justice Peter Kelly said the orders sought by the Tribunal to restrict the Sunday Business Post could not be regarded as proportionate.
They sought to enforce a species of confidentiality created unilaterally by the Tribunal.
It is a confidentiality which is all-encompassing and captures every document and piece of information in the brief which the Tribunal circulates and takes no account of the nature or source of the information in that brief.
He said the Tribunal had taken a blunderbuss as its weapon of choice in protection of the undoubted rights of persons whose reputations may be damaged or who furnished truly confidential information to it.
What was required was a weapon of precision which would protect that deserving of protection while inflicting minimal collateral restrictions on the rights of the media.
He said the fact that material in a brief circulated to specific individuals by the Tribunal may include information obtained in confidence cannot be justification for the wide form of restraint that the Tribunal had sought.
He said it was entirely disproportionate to the aim being pursued and in excess of any legitimate need.
This case arose following a number of articles by journalist Barry O'Kelly in the Sunday Business Post in October 2004.
The Tribunal believed that confidential tribunal documents formed the basis for these articles, entitled 'Jim Kennedy's Pipe Dream' and 'Fifty Councillors Named in New Planning Tribunal List'.
Mr O'Kelly declined a Tribunal request to name his sources.
The Tribunal then summoned Mr O'Kelly and Sunday Business Post management and sought undertakings that that no further confidential documents would be published.
No undertaking was given and Mr O'Kelly was ordered to and refused to reveal his sources.
The Tribunal then went to the High Court and was granted an interim injunction restraining the Sunday Business Post from publishing or using information or any document that the newspaper is aware the Tribunal has directed remain confidential until disclosure at a public hearing.
Today Mr Justice Peter Kelly was giving judgment on the full hearing which took place earlier this year.
He pointed out that regardless of the nature and source every document contained in a brief prepared by the Tribunal is said to be confidential.
He could find no authority, statutory or otherwise, express or implied, which enables the Tribunal to create such far reaching confidentiality, nor should the High Court enforce it.
If the Tribunal had been less ambitious and sought merely to ensure that documents which it obtained in confidence would have their confidentiality preserved there might be something to be said for the court's intervention.
But the Tribunal was seeking to go much further and render confidential everything contained in a brief regardless of nature of source.
The mere fact that the tribunal has directed that information or documents should remain confidential does not, he said, make such documents confidential.
