State may have to pay O’Brien’s legal bill

TAXPAYERS could be hit with a legal bill of up to €1m whether or not Denis O’Brien wins his court challenge against the State.

The businessman, below, is taking a unique action over Dáil statements made by two TDs about his banking affairs. He has asked the courts to ‘clearly demarcate’ the powers of the Oireachtas and courts in his action over the statements.

The general principle in law is that whoever loses the case will have to cover the costs – but a court has the discretion to depart from that if it is advised there are exceptional circumstances. One of the most high-profile cases where this has occurred was taken by right-todie campaigner Marie Fleming.

Ms Fleming, who died in 2013, had taken a High Court action against the State challenging the ban on assisted suicide. When the High Court ruled against her, she appealed the decision to the Supreme Court. Ms Fleming lost her appeal, but the State agreed to pay 75% of the overall costs. Lawyers for Ms Fleming had asked the Supreme Court to exercise its exceptional jurisdiction to make an order for costs in favour of Ms Fleming despite the fact she had failed in her action.

If the same principle is invoked should O’Brien lose, the State could still be saddled with the entire legal bill. There are currently six senior counsel working on the seven-day case.