Introduction

The editor of an Irish daily newspaper, The Irish Times, and its public affairs correspondent, who refused to reveal the identity of a source in relation to publication of a legally and politically sensitive article published in 2006, have been ordered to pay all legal costs incurred in relation to its media litigation with The Tribunal of Inquiry Into Certain Planning Matters and Payments (commonly known as the Mahon Tribunal). The costs order was made by the Supreme Court notwithstanding the newspaper succeeding with its appeal not to reveal the identity of the source in question.

Geraldine Kennedy, editor, and Colm Keena, the correspondent, have been directed to discharge an estimated €600,000 legal bill incurred in a case where “exceptional circumstances” justified the granting of the costs order against the successful party.

Background

This case arose after the Mahon Tribunal sought a court order compelling both editor and public affairs correspondent to answer questions relating to the source of an article about financial payments made to former Irish premier, Bertie Ahern. The article was written by Colm Keena and published in the September 2006 edition of The Irish Times. It disclosed how the Mahon Tribunal was investigating payments to Mr Ahern in 1993 when he was Ireland’s Minister for Finance. Both editor and journalist refused to answer questions relating to the identity of the source of the article on the basis of the right of a journalist to protect his source.

In October 2007, however, the High Court ordered the newspaper’s editor and public affairs correspondent to appear before the Mahon Tribunal and answer its questions in relation to the source of the article. The Irish Times appealed this decision to the Supreme Court. In July 2009 the Supreme Court found in favour of The Irish Times, thereby vacating the High Court order. According to the Supreme Court, the High Court had placed too much emphasis on the “reprehensible conduct” of the editor and journalist while failing to strike a balance between the competing interests of the Tribunal and The Irish Times.

The issue of costs was reserved until November 2009.

Supreme Court Decision on Costs

The Chief Justice of Ireland, the Hon. Mr. Justice John Murray, noted how the Mahon Tribunal wrote to The Irish Times in September 2006. The Tribunal had exercised its statutory power to compel both newspaper editor and public affairs correspondent to appear before it and answer questions as to the source of the story. Having received this direction from the Tribunal, all documentation relating to the story was promptly destroyed to protect the story’s source.

The Chief Justice described the newspaper’s reaction as a “calculated and deliberate act of destruction”. He said that the destruction of the documentation shifted the balance of power in the newspaper’s favour as it deprived the Tribunal of any effective power to conduct an inquiry into the matter. The decision to destroy all documentation relating to the September 2006 article also aided the journalists in having the High Court decision compelling them to reveal their sources overruled.

Costs usually ‘follow the event’ - the successful party in litigation usually has costs awarded in their favour. However, the courts still retain the discretion to make an order for costs against the successful party.

According to the Supreme Court, this was an exceptional case. Citing the “reprehensible conduct” of the newspaper as justification for its decision, the Supreme Court exercised its discretion and ordered The Irish Times to discharge the Mahon Tribunal costs (as well as its own) for both the High Court action and the Supreme Court appeal.

Conclusion

Speaking on behalf of The Irish Times after the decision to award costs against the newspaper, Geraldine Kennedy said that she was disappointed with the ruling. She said that The Irish Times was serving the public interest by publishing the article about Mr. Ahern’s past activities. The decision to destroy the documentation was borne out of a necessity to protect journalistic sources. The newspaper has yet to rule out an appeal of the Supreme Court’s decision on costs to the European Court of Human Rights.

This article first appeared on the International Law.com website (December 2009).