The High Court has refused to lift an injunction preventing RTÉ from broadcasting information about the businessman Denis O'Brien and the Irish Bank Resolution Corporation.

However, Mr Justice Donald Binchy said he would amend the order to take account of the dramatic developments since it was originally made.

The judge said it was necessary the injunction remains in place to prevent the broadcast of anything not already in the public domain or material relating to IBRC's legal advice.

He said the court was being asked to recognise that RTÉ had acted responsibly to date and accept that there was no reason why it would not continue to do so.

He said it was indeed the case that RTÉ had acted responsibly at all times and it was reasonable for it to make the application to lift the injunction.

However, notwithstanding the developments which had been dramatic, it did not follow that the court order should not be continued in relation to information that has not yet come into the public domain.

"On the contrary the rationale of the original decision of this court still applies in relation to any documentation or information that has not yet come into the public domain."

Mr Justice Binchy said the plaintiffs should not have to rely on the good intentions of RTÉ.

And, he said, it was not unreasonable to infer that RTÉ wished to leave open the possibility that it may publish information or documents concerning Mr O’Brien between now and a full hearing of the matter, unless restrained by a court from doing so.

He said it was not appropriate to vacate the existing order and instead the appropriate course to take was to amend the order to take account of developments since it was originally made.

He said since Mr O’Brien no longer objected to the publication of the proposed script it was necessary to address the issue of legal professional privilege as asserted by IBRC over certain parts of the script.

He said it was necessary to consider those parts of the proposed RTÉ script intended to be broadcast that refer to legal advice.

The judge said at this stage, pending a full argument of the point, it was appropriate that the defendant's rights under Article 10 of the European Convention should give way to IBRC's right to legal professional privilege.

He said it would be utterly inappropriate for a court at the interlocutory stage to make a decision which would have the effect of eroding even to the slightest degree the right of a citizen to take legal advice in the knowledge that the confidence in advice given will always be protected by the courts.

He said if that confidence was undermined the damage to the administration of justice would be immeasurable.

The court will hear submissions next Wednesday on how the order should be amended. 

RTÉ lawyers had argued injunctions were pointless

On Wednesday, lawyers for RTÉ had argued the injunctions were now pointless, as all the information that Mr O'Brien had tried to restrain was now in the public domain.

Senior Counsel David Holland said there was no need for the injunction at this point and no purpose was served by it.

He said the effect of the coercive force of the injunction was to pointlessly chill the operation of the media.

He said by persisting in seeking to uphold the injunction, Mr O'Brien was seeking to maintain a Sword of Damocles over the entire media, and RTÉ in particular, which no other citizen has in the ordinary way.

He said a citizen received such an injunction in circumstances where it had reason to believe the media organisation in question was about to break the law.

He said there was a point at which an injunction becomes pointless and said "we are long past that point,".   

He said RTÉ was aware of its obligations under general law and had behaved in an exemplary fashion. 

He said when RTÉ got this information, it had not rushed to publish and had notified the parties in advance. 

There was no reason to believe RTÉ would breach its obligations and no reason to keep RTÉ under the cosh of an injunction.

He said RTÉ had done nothing wrong.

Lawyers for Mr O'Brien said they were opposed to the injunctions being lifted.

Senior Counsel Michael Cush said RTÉ's application was a bit too clever by half. He said the injunction had been granted to Mr O'Brien by the court, despite what RTÉ had said about the law.  

He said Mr O'Brien had agreed to appropriate variations to the orders given what had come into the public domain.

He said Mr O'Brien had acknowledged that the script of RTÉ's proposed report was now in the public domain and could be published but he said the court's order was not confined to the script.

Mr Cush said the injunction covered confidential information in relation to Mr O'Brien's banking affairs with IBRC. He said it was broader than the script.

He said RTÉ had made it clear it had further information in its possession in relation to Mr O'Brien and his banking affairs and was refusing to identify it. 

He said there was clearly a great deal of information out there and the worth of the injunction was that it covered not just RTÉ but anyone having knowledge of the order.

Lawyers for IBRC said information relating to legal advice it had received was privileged and should not be published.    

Barrister Andrew Fitzpatrick said IBRC was a regulated bank and had an obligation to all of its customers to keep their banking affairs confidential.