We’re still awaiting the outcome of the make-or-break Paddy McKillen appeal in London, against a judgment which involves the Barclay brothers and their quest for control of the Maybourne portfolio of three upmarket hotels. The appeal hearing concluded in London nearly two months ago, and if Paddy loses, he faces significant legal costs and the prospect of life as a minority shareholder in a company controlled by the hostile Barclays.
In Dublin this week, Paddy McKillen along with controversial businessman, Denis O’Brien succeeded in obtaining an injunction at the High Court, preventing the Irish edition of the Sunday Times publishing the results of an investigation into the two businessmen’s affairs. The Sunday Times reports on the injunction today, but it is behind a paywall, there is a sneaky photograph of the story at the Broadsheet.ie here.
There was a marathon seven hour emergency hearing yesterday, Saturday, which resulted in the High Court judge acceding to Paddy and Denis’s application for an injunction. There will be a full hearing into the matter within six weeks. The case was initiated on Good Friday and the respondents are named as Times Newspapers Limited and journalist Mark Tighe. Paddy is represented by Johnsons solicitors, who coincidentally are representing Paddy in separate Dublin High Court defamation cases initiated by Paddy in January and February against companies and individuals associated with the Barclay brothers. Denis O’Brien is represented by William Fry solicitors, which is a departure from the use of Meagher’s who generally represent the Digicel chairman in his frequent run-ins with the media.
In giving his judgment, Judge Colm MacEochaidh said “it is urged that irrevocable harm will be done to the plaintiffs [Paddy McKillen and Denis O’Brien] and the harm is first and foremost the confidentiality they have, will be lost..I accept that is the damage they will suffer”
We do know that both Paddy and Denis have been major borrowers at Anglo, now Irish Bank Resolution Corporation, and that, following the decision to place IBRC in special liquidation on 6th February 2013, both have a narrow window to refinance their loans out of IBRC before the loans are placed on the market, and in Paddy’s case, the Barclay brothers have made it known that they will pursue the loans and may be prepared to pay a premium above market value for the loans.
We also know that Paddy has had a relationship with Denis in the past. It emerged in the epic High Court battle in London last year that “among the friends and associates who Mr McKillen said “would have delivered” financially were Denis O’Brien, a man whom he described as the “world’s greatest telecoms entrepreneur”” Paddy was talking about the financing of the Maybourne group of hotels.
The temporary injunction obtained by Paddy and Denis isn’t all-encompassing, but the Sunday Times says today that it decided that it could not publish the uninjuncted parts of the story in a way which would be intelligible to its audience. So, we don’t know what the Sunday Times investigations apparently uncovered, we don’t know if it relates to IBRC or to the Maybourne hotels, but the judge concluded the reporting was capable of damaging Denis and Paddy.
The hearing in the High Court yesterday might also be noteworthy for what appears to be an outrageous abuse of position by the presiding judge. Judge Colm MacEochaidh has been a High Court judge for just over nine months, having had a long career as a barrister beforehand, and gained prominence after being one of two people whose newspaper ad led to the setting up of the Mahon Tribunal into planning corruption. In court yesterday, he seemingly taunted Denis O’Brien by contrasting Denis’s rubbishing of Judge Moriarty and the Moriarty Tribunal with Denis’s present appeal to the mercy of the court to grant an injunction; after a recess, the Judge is reported to have asked if Denis’s barrister had consulted with his client on the ambivalence in position, and when told the matter had not arisen in consultations with Denis, the judge is reported to have said “it should have”. The judge ultimately declared that Denis would get the “full and independent protection of the court” but this little episode of petty score-settling surely begs questions about Judge MacEochaidh’s appropriateness to even act as a judge.
UPDATE: 4th April, 2013. Dublin’s “The Phoenix” magazine today claims to know what the (presumably injuncted) Sunday Times article relates to. Given that the material is subject to an Irish injunction, nothing further is going to be said about the content here, but if “The Phoenix” is right, then WSTT is wrong below!
UPDATE: 27th April, 2013. The judgment in the temporary injunction hearing was published online yesterday and it makes for interesting reading. The judgment accepts that there will be irreparable damage done to Paddy McKillen if the intended Sunday Times story had been reported, and the judge notes that this proposition was not gainsaid by Sunday Times. For its part the Sunday Times claimed, according to the judgment, “there is a public interest of a real and weighty nature in publishing information about the manner in which the bank in question deals with one of its most significant debtors.” The judge characterises the intended article by the Sunday Times and its journalist Mark Tighe, as “1. Information of an opinion nature expressed by officials internally within the bank. 2. Information the ‘Sunday Times’ intends to report that a further loan has been extended to Mr. McKillen. 3. Information relating to the commercial relationship between Mr. McKillen and Mr. O’Brien.” The concluding part of the judgment is enlightening:
“I have decided not to grant an injunction restraining publication of the fact that a further loan was granted to Mr. McKillen. However, I say that the plaintiff has persuaded me that the publication of information of an opinion nature communicated internally within the bank by officials is a step too far and that information should not, in my view, be published. The ‘Sunday Times’ has not persuaded me that there is a public interest in that sort of opinion on behalf of the bank.
Neither am I persuaded that information relating to the commercial relationship between Mr. McKillen and Mr. O’Brien is a matter that has to be published. Those are matters which seem to me to just fall on the wrong side of the nature and extent of the sort of information that the public has a right and entitlement to know at this stage. Therefore, I grant an injunction restraining publication of information of an opinion nature communicated internally within the bank by officials as well as an injunction restraining the publication of information relating to the commercial relationship between Mr. McKillen and Mr. O’Brien.
I refuse to grant an injunction restraining publication of the fact that a further loan was extended to Mr. McKillen in the amount identified and for the purpose identified.”