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.”
NAMA Wine Lake 
Even more dangerous than MacEochaidh’s comments which let the cat out of the bag are the plethora of decisions being made by his fellow judges who do not make any comments but dice and slice their judicial judgements to suit the politics of those that appointed them.
Perhaps it is this inability, to remain silent while being partial, while they give erudite judgement that you elude to as making him unfit for the bench.
I have seen him in action as a Barrister several times and he was head and shoulders above everyone else, I would prefer a sarcastic judge that makes the right decision, rather than one who makes sarcastic remarks and then makes the wrong decision.
The governments decision to “get rid of IBRC” per chance the advent of the PN’s would be declared illegal is going to come back to haunt them.
@ NWL – Be nice about Judge Mac Eochaidh – his heart is in the right place and he is noteworthy among Irish lawyers (nay, among Irish people of any description) in having a moral core + putting his own money on the line and offering a IR£10,000 reward in 1995 for information leading to a conviction for planning corruption (never claimed).
Urgent eve-of-publication injunction applications are usually presented in haste with affidavits not dealing with every relevant point and he appears to have asked some questions that might be relevant to the public interest in publication advanced by the ST. The Moriarty Report investigated Mr. O’Brien’s dealings with Mr. Lowry etc. (which DOB has rubbished) so do we have to await a new tribunal in 10 years time to find out about the McKillen dealings? (There’s some reference to a breach of confidence so the source of the info is clearly the main issue here.) One comment in a 7 hour hearing is hardly the end of the world and, while extraneous to the application, did not affect the result and is preferable to the judges Robert refers to who silently go with their instinct/prejudice but pretend to listen until the end.
This obviously relates to IBRC loans and not specifically to Paddy’s relationship to the Barclay brothers. Neither had their loans transferred to NAMA.
@wstt – I would imagine it probably does link back to the Barclays and also maybe the Dept of Finance or someone with control of highly confidential information from IBRC. My betting is that is what is behind it.
In the US prior restraints are generally deemed to be unconstitutional, except in extremely limited circumstances such as national security issues. Apparently, under Irish jurisprudence, dirty laundry is a national security issue.
@ L’Eagle
That 10,000 initial investment generated hundreds of millions of legal fees for the legal industry. There are many who must toast Colm, every night, as they retire to bed in palatial surroundings. I hope there is never another tribunal in this country ever again.
How much does it cost for a day down your high courts, at the hilariously titled “The Criminal Courts of Justice”?
I completely disagree. Denis O’Brien essentially publicly denounced the Tribunal and it’s findings, and by extension the entire court system. Now he comes crawling back to the same, seeking succour. Judges are right to reveal the hypocrisies of powerful magnates who seem to treat the court system as their personal boutique.
Judge MacEochaidh defended the integrity of the courts in Ireland. It’s a very small step for that system, but at least it’s heading in an opposite direction to where certain recent judgements have taken it.
@OMF, Denis O’Brien would probably disagree with you that the Moriarty Tribunal was an extension of the entire court system, and one of his main gripes is that it didn’t equal the standards that would apply in court, for example in terms of evidence.Yes, the Moriarty Tribunal was presided over, by a senior judge, but if a senior judge runs into the back of your car at traffic lights today, and you get out and remonstrate with him or her and tell the newspapers that the judge is a bad driver, and if you then have a subsequent unrelated court case, is another judge entitled to remark during the hearing on your criticism of the driving skills of the senior judge that rear-ended you?
@NWL
A Judge remarking on the past comments of someone before him in the courts regarding another judge’s driving aptitude, is doing one thing.
A judge willing to point out the blatant hypocrisy and arrogance of a man who is happy to decry the judiciary as they oppose his will, but turn to them at the drop of a hat if he feels they will be of any use to him, is doing something else.
Granted outwardly they may have a superficially similar blossom, but inwardly they sprout from very different gardens.
McCookie should probably defer to his senior and better in the Supreme Court, Mr Justice Hardiman who said “The duration of some modern tribunals was nothing less than appalling, a recent one had ended after about 13 years and another seemed likely to exceed that “enormous total”.
As a result, the expense of participation in tribunals was “nothing less than grotesque” ………..Tribunals had also taken to sitting for long periods in private so the material gathered by them was known only to them, except for the “all too frequent” occasions when material is leaked.
Accumulation of the material in secret has sometimes created major injustice where material damaging to the account of an accusing witness has been quite deliberately withheld from the parties being accused, he added.”
O’Brien not the only one unimpressed with the conduct of Tribunals…..
@ Robert Browne – I agree entirely – I’ve never been near a tribunal and think they are ghastly abominations designed by politicians and implemented by politically-minded/promotion-orientated judges to ensure that the truth is submerged for the longest period possible at the greatest cost imaginable so as to divert attention from the corruption etc they purport to investigate. The cases about the legal protections required by those investigated in the Beef Tribunal, where Adrian Hardiman SC acted for all the best characters, mean that the current system is not fit for purpose. It is not C MacE’s fault that nobody in Government has any interest in reforming it – I wonder why!! apart from the eternal outsider Mr. Shatter who didn’t get the PR side right.
Judge Mac Eochaidh appears to be one of the few people in Ireland with a moral code. I would trust his judgement but hope I never need to.
Denis O’Brien never once insulted Justice Moriarty. He simply pointed out that Tribunas are intrinsicaly unfair in jurisprudence as they allowed for malicious vindictive allegations to be accepted and read, even if unsigned!(and those accused were not informed!) This meant that a persons hard won reputation could be damaged with little recourse to legal rectification.
For seven years evidence beneficial to Denis O’Brien was withheld by the Tribunal which in any normal court of law in a democracy would have led to its collapse.