Supreme Court: Relief in O’Brien case would amount to collateral challenge to statements in the Dáil

Supreme Court
Supreme Court

Denis O’Brien has lost his appeal to the Supreme Court over a decision of the Committee on Procedures and Privileges (CPP) which was in relation to statements made in the Dáil.

Finding that granting relief in the circumstances would amount to a collateral challenge to the statements, Mr Justice Frank Clarke, Chief Justice of the Supreme Court upheld the High Court’s decision and dismissed Mr O’Brien’s appeal.

High Court

In the High Court, Mr O’Brien sought relief in respect of two issues:

  1. The statements or utterances made by two deputies in the Dáil;
  2. The manner in which the CPP dealt with Mr O’Brien’s complaint in respect of those utterances.

Ms Justice Úna Ní Raifeartaigh held that the case was non-justiciable due to the separation of powers between the Oireachtas and the Courts under the Irish Constitution.

Appeal on the second issue only

Mr O’Brien did not pursue the first issue on appeal.

The Supreme Court granted leave to Mr O’Brien to appeal directly from the decision of the High Court, on the basis that “…the case meets the criteria of general public importance and/or the interests of justice”, that any clarification of existing authorities should come from the Supreme Court, and that the case concerned a single issue of law therefore it was unlikely its parameters would be reduced by analysis in the Court of Appeal.

The first ground set out in the notice of application was: “The High Court’s finding with respect to the Non-Justiciability of the Committee’s determinations was in error as was its consequent refusal to grant the reliefs sought on the Statement of Claim pertaining to the Committee’s determinations.”

The ground relating to costs was not dealt with in the present judgment.

Common issues with Kerins and areas of difference

Mr Justice Clarke explained that the Supreme Court had repeatedly emphasised and reiterated in Kerins v McGuinness & Ors [2019] IESC 11 that “the constitutional rights of citizens do not disappear at the gates of Leinster House”; instead “the constitutional architecture requires that, to the extent that the Constitution itself confers immunities in respect of court proceedings relating to what happens within Leinster House, citizens must look to the Houses themselves to vindicate their rights including, where appropriate, resolving any question of balancing rights and obligations which arise”.

Mr Justice Clarke said, the fact that a court order protecting the right to privacy did not in itself extend to precluding utterance made in the Houses of the Oireachtas, did not mean that there “may nonetheless be an impermissible interference with the privacy rights of a citizen as a result of utterances made in the Houses”. And further, where such interference takes place there may be a concomitant obligation on the Houses to have mechanisms in place for a citizen to seek vindication of any rights said to have been infringed.

That being said, there were significant areas of difference between Mr O’Brien’s appeal and the Kerins appeal:

  • The “utterances” giving rise to Mr O’Brien’s initial concern were clearly utterances made in a House of the Oireachtas and therefore none of the questions concerning the scope of any immunity enjoyed by a committee (discussed inKerins), have any application to this appeal. 
  • Those utterances were not made in the context of a situation where Mr O’Brien had been invited to participate in a process and had accepted that invitation. Thus, the issues discussed in Kerinsas to whether obligations lie on the Houses of the Oireachtas generally or their committees as a result of an invitation to a citizen to participate directly in their business have no application on this appeal.


Mr Justice Clarke said that the mechanism for Mr O’Brien to make a complaint to the CPP – and the CPPs capacity to impose sanctions – could be characterised as forming part of the Houses’ constitutional response to their obligation to protect the rights of citizens.  

The CPP, in considering Mr O’Brien’s complaint, was carrying out a delegated function of the Dáil in protecting the constitutional rights of citizens in respect of matters occurring within the Dáil. Mr Justice Clarke said that it followed from the analysis in Kerins that the same privileges and immunities attached to the Dáil if it were considering the same matter would attach to the CPP.


Considering whether Mr O’Brien’s complaint could amount to an indirect or collateral challenge to utterances made in the Dáil, Mr Justice Clarke said that a judicial decision which quashed or interfered with a determination of the CPP (in the case of a complaint confined to utterances made in the Dáil)  would amount to an indirect or collateral challenge to the utterances themselves.

Mr Justice Clarke said the only ultimate practical outcome of a successful challenge would be either requiring the CPP to reconsider the matter or making them feel obliged to do so – the consequence in both circumstances would potentially reopen the complaint to the CPP and a different view may be taken of the utterances – this would “undoubtedly involve the Court in being at least indirectly involved in the assessment of utterances made in the Houses and would… clearly be in breach of the first leg of the basis of immunity discussed in Kerins”.

In those circumstances, the challenge to the CPP’s decision in Mr O’Brien’s case was non-justiciable.

Upholding the decision of Ms Justice Ní Raifeartaigh, the Supreme Court dismissed Mr O’Brien’s appeal.

Callely type exception?

The Court held that even if a Callely type exception to the general rule against non-justiciability may exist, it could only apply “in the case of either an egregious breach by the Oireachtas of its obligation to protect the rights of citizens in respect of matters which occurred within the Houses or a persistent failure to deal with matters in a way from which it might legitimately be inferred that the Oireachtas did not intend to afford appropriate protection to citizens”.

Since neither of those situations existed in Mr O’Brien’s case, even if a Callely type exception did exist it could not avail Mr O’Brien.

In those circumstances, the Court proposed to “leave over the question of whether such an exception exists to a case in which it might prove decisive”.

  • by Seosamh Gráinséir for Irish Legal News

© Irish Legal News Ltd 2020

Other judgments by Mr Justice Frank Clarke