European election candidate Ben Gilroy has lost a High Court challenge to a decision by RTÉ not to include him in a live televised debate.
Mr Gilroy, who is an independent candidate in Dublin, had asked the court for a number of declarations including that RTÉ did not have the authority to deprive him of his right to debate as a panelist and that the broadcaster's actions will prejudice his election campaign.
However he told the court he was not seeking to stop the debate or overturn the decision as he knew he would be unsuccessful.
Instead he wanted the court to declare the process for selection as unfair and undemocratic so it could be used to effect change in future elections.
Mr Justice Senan Allen said the case had no legal basis and awarded costs against Mr Gilroy.
The judge accepted RTÉ's argument that the declarations sought by Mr Gilroy should have been taken through judicial review application and not in an urgent hearing of the High Court.
RTE had argued the case had been taken for a collateral purpose of garnering publicity for his campaign which was an improper use of court time.
The judge refused to hear an application by Mr Gilroy for an urgent injunction saying: "You've had your day".
The judge described him as a "seasoned litigant" with liberal knowledge but limited understanding of the law.
He said the court could not make a decision on the substantive issue but it seemed to him the approach of RTÉ in choosing candidates for the debate was sensible.
Mr Gilroy had earlier claimed the criteria applied for choosing debate participants effectively barred him from those debates.
He said the criteria violated the Broadcasting Authority guidelines and was "an attack on democracy".
The perception of the electorate will be that those candidates who are on the live TV debate were "either the only ones running or the only ones worth voting for," he said.
However he said he was not seeking to have the decision overturned or to have the court order that he be allowed on the panel.
Mr Gilroy said he wanted the court declarations so they could be used in the future.
He said the debate would result in the public listening to "the same old politicians peddling the same old nonsense while the country is going down the swanny".
Mr Justice Senan Allen asked Mr Gilroy how he expected to say anything to the electorate if he was not asking the court to order he be allowed on the panel.
Mr Gilroy said he was looking for a declaration for other people who had been "shunned" by RTÉ.
He wanted the court to say it was an undemocratic process, adding "it is a closed system, it is impossible to break into".
He said he had to do what was best for him in this election and if it was reported that he had taken the challenge and the court had found the process unfair then maybe people would consider voting for him.
He said RTÉ was not being impartial because it was "favouring established parties and politicians".
Asked by the judge if he was suggesting that all 19 candidates had a legal right to take part in the 52 minute programme he said he was not but he was taking issue with the way RTÉ had gone about it.
"They could have put the names in a hat. It is unfair and undemocratic," he said.
He also said "its 19 people and it could have been done over two nights."
"There has to be impartiality. When you have the same old people on you can’t hear new views."
In a sworn statement RTÉ TV Head of Current Affairs David Nally said there were 59 candidates for the European Election across all constituencies, 19 of those in Dublin. He said each of the 59 candidates was offered a one-minute video slot recorded by RTÉ to make their pitch for election and this provided a benchmark of equal treatment for all candidates subject to the content adhering to the appropriate statutory and regulatory provisions.
In addition, RTÉ provides extensive coverage of the elections across radio, TV and online, he said.
The criteria for inclusion in the live TV debate is based on a decision of a steering group.
The criteria states that debate participants must be: a candidate who is a currently elected MEP, TD or Senator or a person who did not get elected but achieved 5% or more of the vote in the last election or if the party for which the candidate is standing won at least one seat in the last European Election, two seats in the last General Election or at least 5 seats in the last local election or achieved 5% of the national vote in any of those elections.
A party cannot have two representatives in the same debate.
Mr Nally said at all times RTÉ was conscious of "the need to strike a reasonable balance between inclusiveness and the need to provide a coherent and worthwhile debate to the viewers."
He said it was relevant that the number of participants not be excessive for a number of reasons and the addition of speakers affects the quality of the debate.
It was unfeasible to have a debate with all candidates and would result in a significantly less coherent and informative debate, he said.
He also said TV live debates could not be viewed in isolation from RTÉ's overall electoral coverage over the course of the campaign.
Mr Gilroy's one minute video would also be aired on 20 May, he said.
Counsel for RTÉ, Niamh Hyland, said Mr Gilroy was looking for something from the court which was "not known to law".
She said it had become clear during the hearing that he was not seeking to halt the debate or seeking to have the format varied to allow him to take part.
The orders he was seeking had to be sought through judicial review and not through an urgent hearing, she said.
It was not possible to have temporary declaratory relief.
Ms Hyland said he appeared to be taking the case for a "collateral purpose and using court time for what was purported to be an urgent matter so that the publicity surrounding the application would advance his electoral aims".
This was not a permissible use of court time, she added.
Separate case adjourned until tomorrow
Separately, another Independent European election candidate in Dublin, Eamonn Murphy, is also challenging a decision not to include him in the televised debate.
Mr Murphy told Ms Justice Leonie Reynolds this morning that he wished to join Mr Gilroy's case as his challenge was similar in nature.
However, counsel for RTÉ told the court that Mr Murphy had only just served them with limited papers and his case differed somewhat, as he was also challenging a decision not to show a one-minute video clip on its website.
Senior Counsel Niamh Hyland told the court a letter had been sent to Mr Murphy explaining in detail that the video he recorded could not be used because it contravened the Broadcasting Act and Broadcast Authority of Ireland's code.
Mr Murphy told the court the reasons for the exclusion of his video were not properly explained by RTÉ.
Other candidates, including Mr Gilroy, had recorded one-minute videos for use on RTÉ's website.
The judge adjourned Mr Murphy's case until tomorrow.
