Supreme Court quashes Commission direction as issued for improper purpose of pre-empting legal arguments.

[2003] IESC 52

THE SUPREME COURT

215 & 216/03

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

IN THE MATTER OF THE COMMISSION TO INQUIRE INTO CHILD ABUSE ACT, 2000 SECTION 14(3)

and

IN THE MATTER OF PROFESSOR PATRICK MEENAN

Between:

THE COMMISSION TO INQUIRE INTO CHILD ABUSE

Applicant/Respondent

and

PATRICK MEENAN

Respondent/Appellant

and

Between:

PATRICK MEENAN

Applicant/Appellant

and

THE COMMISSION TO INQUIRE INTO CHILD ABUSE

Respondent

JUDGMENT of Mr. Justice Hardiman delivered on the 31st day of July, 2003.

1. Each of the above proceedings relates to “a direction to attend” before the Vaccine Trials Division of the Commission to Inquire

into Child Abuse for the purpose of giving evidence before it. The Commission seeks an order pursuant to s.14(3) of the Commission to

Inquire into Child Abuse Act, 2000 ordering Professor Meenan to comply with the Direction issued to him. In his proceedings, Professor

Meenan seeks to quash the decision to issue the Direction to him and certain other reliefs.

The parties.

(a) The Commission to Inquire into Child Abuse.

2. The Commission to inquire into Child Abuse was established by the Commission to inquire into Child Abuse Act, 2000. Its role is set

out in s.4 of the Act. By s.4(4)(a) the Government is empowered, after consultation with the Commission, to confer upon it or its

Committees additional functions or powers connected with its functions and powers under the Act.

3. On the 19th June, 2001 the Government exercised this power by conferring certain additional functions on the Commission. The

principle additional function was:-

“To inquire, through the Investigation Committee, into the circumstances, legality, conduct, ethical propriety and effect

on the subjects thereof of

(i) The three Vaccine trials referred to in the report…”

4. The report referred is a report by the Chief Medical Officer of the Department of Health entitled “Report on three clinical trials

involving babies and children in institutional settings 1960/61, 1970 and 1973.”

5. In the Act of 2000, the term (child) “abuse” is given a special definition. On this appeal, no question was raised as to whether the

subject of the inquiry mandated by the statutory instrument was, or required to be, within that definition. I therefore assume that the

additional functions are intra vires the government and the Commission. But even on that assumption it may be unfortunate for

Professor Meenan and other persons in similar circumstances, that the inquiry into the Vaccine trials is being carried out by a body

denominated “The Commission to inquire into child abuse.” The question of the propriety of the 1960 Vaccine trial is as far removed

from the common understanding of the term “child abuse” as can be. That common meaning, unfortunately, is accurately reflected in

the headline of a newspaper report of the hearing of this appeal. The inquiry is described as the “Sex Inquiry”. This understanding of

the remit of the commission is legally inaccurate but pervasive. This is a factor which would be of legitimate concern to anyone

dealing with the Commission on a matter without any sexual element to it at all. It is also a matter relevant to the possibility of

reputational damage arising from association with the Commission.

(b) Professor Patrick Meenan

6. Professor Meenan is a retired University Professor and medical practitioner. He qualified MB in 1941 and MD in 1946. In that year,

while working in London he was requested by the then Chief Medical Advisor of the Department of Health, Dr. Deeny, to open a Virus

laboratory in Dublin. He was subsequently director of the Department of Pathology in St. Vincent’s Hospital, Professor of Microbiology

as applied to Medicine in University College, Dublin, Dean of the Faculty of Medicine at the same university and Chairman of the

Medical Council. He has had, in the words of the learned trial judge, a remarkable and illustrious career. As a result of this he is widely

known, personally or by reputation, both within and beyond medical and academic circles. However, he retired from his last

professional function, that of Chairman of the Medical Council, in 1989 and has not practised or taught medicine since that time. He is

now in his 87th year.

The Trials

7. The Vaccine trials which are the subject of the additional functions of the Commission were started 43 years ago. Professor

Meenan’s involvement relates to the first such trial only, which took place between 1960 and 1961. Its results were published in the

British Medical Journal in the following year. Professor Meenan was listed as the second of six co-authors of the article describing the

trial. The trial itself, in which 58 infants resident in five childrens homes in Ireland took part, sought to compare the poliomyelitis

antibody response after vaccination with a quadruple vaccine (diphtheria, pertussis tetanus (DPT) and polio combined) with the

standard vaccines in use at the time, which consisted of DPT and polio administered separately and at different sites.

8. According to the report of the present Chief Medical Officer of the Department of Health, which is referred to in the government

order conferring the additional functions on the Commission “These particular trials have become the subject of public discussion over

the past number of years because some of the children who took part in these trials were resident in mother and baby homes and

childrens homes around the country and questions have been raised as to the ethical propriety of these trials.”

9. It may be important to state, firstly, that the report mentioned above stresses the great significance of vaccination in the

elimination or reduction of various serious diseases. This has taken place through the development of vaccines, mainly by commercial

companies, and their introduction in comprehensive population based vaccination programmes. Secondly, that the diseases mentioned

above, and in particular polio, were significant problems in Ireland at the time of the relevant trials. It is undisputed and indisputable

that the objects of the 1960 study were “eminently reasonable at the time and clearly sought to answer questions that were

relevant, answers from which could potentially benefit the health of others”, to quote one of the reports put before the Court.

10. Thirdly, the acceptance of the result of the study for publication by the British Medical Journal appears indicative both of its

significance and of its perceived compliance with scientific and ethical standards as they were at the time. Its fundamental conclusion

was pointed out by the British Medical Journals scientific reviewer:-

“It should be pointed out that what is needed is a quadruple vaccine”.

11. Fourthly, no person has come forward to the Commission claiming an adverse reaction from the vaccine. No-one has alleged, as

far as the evidence before this Court goes, that the trials in 1960 were either illegal, unethical or inadequately conducted.

The Direction to attend.

12. Section 14 of the Commission to Inquire into Child Abuse Act, 2000 provides as follows, insofar as relevant:-

“14(1) Subject to the provisions of this Act, the chairperson of the Investigation Committee (“The Committee”) may for

the purposes of the functions of the Committee –

(a) direct in writing any person whose evidence is required by the Committee to attend before it on a date and a

time and place specified in the Direction and there to give evidence and to produce any document specified in the

Direction in the possession or control of the person…

(3) Where a person fails or refuses to comply with or disobeys a direction, the High Court may, on application to it in a

summary manner in that behalf by the Committee, order the person to comply with the Direction and make such other (if

any) order as it considers necessary and just to enable the Direction to have full effect.

(4) A person who –

(a) having been directed under paragraph (a) of subsection (1) to attend before the Committee without just cause

or excuse, fails or refuses to comply with or disobeys the Direction shall be guilty of an offence.”

13. Section 35 of the Act provides as follows:-

“A person guilty of an offence under this Act shall be liable-

(a) on summary conviction, to a fine not exceeding £1,500 or imprisonment for a term not exceeding six months or

both, or

(b) on conviction on indictment, to a fine not exceeding £20,000 or imprisonment for a term not exceeding 2 years

or both.”

14. It can thus be seen that the issue of a direction is a solemn matter which may expose the person the subject of it to civil or

criminal liability as well as costs and expenses. It may also expose a person, unless the sitting to which he is summoned takes place in

private, to the full glare of publicity, perhaps in a distorted or prejudicial form, in relation to his appearance at the “Sex Inquiry”, as it

is described in a leading newspaper on the day this judgment is drafted.

Professor Meenan’s anxieties.

15. In the course of the correspondence Messrs. Cox and Company on several occasions discussed their client’s anxieties about his

interaction with the Tribunal. It, indeed, was the theme of the very first recorded contact between those parties, in February, 2002.

In March, 2002 a report from a distinguished physician was transmitted which made it clear that his patient’s health might be

adversely affected if his dealings with the Inquiry took certain forms. I do not regard this as at all surprising in view of his patient’s

age. The solicitors also made quite clear their client's anxiety that, due to age, difficulty in recollection, and the remoteness of the

events in issue, he might not be able to do himself justice, or alternatively he might not be able to do himself justice without an

extraordinary effort. The effort which it cost him to make the statement is graphically described and again the details are not, in my

view, surprising in the circumstances.

16. When, in the course of the correspondence, it was suggested that the question of Professor Meenan’s capacity to give evidence

would have to be inquired into in public, “quite likely” on oral evidence, the solicitors protested in very strong terms. They expressed

surprise and dismay. The making of an application in such circumstances “would be a source of distress, anxiety and embarrassment

to him. It will inevitably draw the media upon him and leave him open to unsolicited approaches from various media organisations. We

would be concerned at the effect all this would have on his health”.

17. In my view, all of these concerns are legitimate ones. It may be, of course, that they would have to yield to an overarching public

interest indicating the necessity for his attendance. In such circumstances, the Commission or Division would be required firstly to

behave in strict accordance with their statutory powers, secondly to consider the position of Professor Meenan including any legal or

constitutional aspects which a risk to his health, peace of mind or reputation might raise, his rights under any statute or other

instrument and his rights arising from any dealings which the Commission itself might have had with him. It is to these I now turn.

Dealings between the parties: sequence and meaning.

18. It appears (though this Court has not seen the initial correspondence) that the Commission contacted Professor Meenan and

many others by way of a circular letter some time shortly before the 13th February, 2002. Very shortly afterwards Professor Meenan

was hospitalised and later in the year was bereaved by the death of his wife. From the beginning of the interaction between the

parties Professor Meenan’s solicitor made it clear that her client was disposed to cooperate fully with their inquiries, and also made it

clear that he was a very elderly man whose powers of recall and concentration were limited. The questions of what the Commission

expected from him, and his own state of health as it affected his ability to comply with the Commission’s requirements are the main

themes of the correspondence.

19. After this initial stage, the correspondence between the Commission, represented by the one of the legal team of the Vaccine

Trial Division and Professor Meenan, represented by Ms. Margaret Muldowney of Arthur Cox and Company falls into a number of

distinct phases. In September, 2002 Professor Meenan swore an affidavit of discovery at the requirement of the Commission. He was

invited to supply further information about the mode of keeping records in his department in University College, Dublin at the time of

the tests some forty-two years previously. His solicitor said that due to the lapse of time and his state of health he simply could not

provide an informed reply. The Commission expressed concern that this state of health was apparently affecting his ability to co-

operate with the Inquiry and asked for an up-to-date medical report concerning his condition. The Commission also stated that an

independent medical examination of Professor Meenan might also be necessary. This was communicated in a letter of the 13th

November, 2002.

20. In December 2002 the Commission asked Professor Meenan to make a statement, pointing out that he was under no obligation to

do so. They invited him to consider some twenty-one particular matters all relating to the period in or about 1960. The letter ended

with a further request for a medical report, if it were thought that he would be unable “respond to” the Inquiry due to a medical

condition. There was also mention of the possibility of independent medical examination.

21. On the 12th December, 2002 Messrs. Cox and Company wrote a significant letter to the Commission asking precisely what form of

response to the Inquiry would be demanded of Professor Meenan. This information was sought in order to assist Professor Meenan’s

doctors in providing their report. The solicitors asked whether, if a statement were given by Professor Meenan, he would be called to

give evidence in public, whether he would be subject to cross-examination, whether he would be asked to file further affidavits of

discovery, or make further statements and whether he would be required to comment on statements by other parties, or on

documents.

22. In my opinion, the substance of this letter was at no stage addressed by the Commission. However, in their response of 13th

January, 2003 it was stated that “All of the matters raised by you in your letter of the 12th December, 2002 may or may not arise

depending upon what issues might emerge on the small amount of documentation yet to be discovered or in the statements of other

parties which may in due course be furnished to the Division”.

23. I regret that I cannot share the learned trial judge’s interpretation of the letters of the 12th December, 2002 and 13th January,

2003. Messrs. Arthur Cox and Company were representing a very elderly gentleman whose physician, in a report dated the 30th April,

2002 which had been given to the Commission, had expressed concern about his ability to “go through what is a very rigorous and

protracted series of interviews and cross-examinations as outlined in your letter”. The solicitors were, in those circumstances, in my

view entitled to enquire what precisely would be required of Professor Meenan by way of co-operation by the Tribunal. Specifically,

they raised the question of whether he would have to attend for oral examination and/or cross-examination in public. They made this

inquiry in the context of the Commission pressing them for a medical report on their client. Clearly, no physician could offer a

meaningful report on Professor Meenan’s capacity to co-operate with the Tribunal unless he knew what such co-operation would

require of him. The letter of the 13th January, 2003 left open the possibility that the question of examination or cross-examination in

public might not arise:

“All of the matters raised by you in your letter of the 12th December, 2002 may or may not arise”.

24. It also held out the possibility that the statement might “obviate the necessity for protracted examination and cross-examination

of your client in public on the issues specified by me … and on any other issues which might arise in the course of the hearing”. While

this sentence is not free from ambiguity I believe that Ms. Muldowney was entitled to read the letter as raising the possibility that

attendance for oral examination and cross-examination might not be required of her client. This possibility in my view was kept open

on the correspondence until the 18th March, 2003 when for the first time it was made clear that Professor Meenan’s attendance at

the oral hearings would certainly be required. Coincidently or otherwise this was shortly after Professor Meenan’s solicitors had

forwarded to the Commission the detailed statement they had asked him to make.

25. The other aspect of this phase of the correspondence which requires notice relates to the manner in which Professor Meenan’s

capacity to respond would be established. At this stage, and up to the 19th March, 2003 or possibly the 2nd April, 2003, the

Commission continued to speak in terms of this issue being resolved by the furnishing of medical reports from Professor Meenan’s

doctors and, possibly, an independent examination by a practitioner of the Commission’s nomination. Not until after the furnishing of

the statement was the position adopted that the question of Professor Meenan’s capacity to give evidence would have to be explored

in a public hearing. So strongly, indeed, was this position taken that medical reports supplied on the (very usual) basis that they

would be strictly confidential were returned unread. The Commission, it said, could not accept them on this condition. It transpired

that that was because they might wish to pass the reports to third parties.

26. The taking of the statement from Professor Meenan had to await medical clearance. Finalisation of the draft statement was then

delayed because Professor Meenan suffered a fall in his home. It was eventually supplied by letter of the 17th February, 2003 from

Messrs. Cox and Company. In the meantime, the correspondence of December and January had, apparently, been put before the

Vaccine Trials Division of the Commission on the 17th January, 2003. A note of what occurred at that meeting was produced by way

of discovery in these proceedings. It is, as is only natural, rather telegraphic in form since it was a note by a participant at the

meeting. However, it says, unambiguously:-

“Capable? Of responding – need answer now.

If no statement – he will be subpoenaed.

If we do decide he not capable – would have to do it in public.

- If she wants to make this case she would have to make the application”.

27. These, apparently, are notes of decisions taken. Apart from that mentioned in the last line, none of the rest were then

communicated to Professor Meenan or his lawyers. The decision that he would be subpoenaed if he did not make a statement

manifestly confirms that, even in the mind of the Commission, there was a prospect that he would not be subpoenaed if he did make

the statement. More specifically, he was not told that a decision as to his capacity would have to be made in public and that, in the

words of the last line of the note, “for purposes of that hearing we would have sep indep ass in public”. This decision was

communicated eventually to Messrs. Cox, but only after the Tribunal was in possession of Professor Meenan’s statement.

28. By letter of the 7th March, 2003 the Commission notified Messrs. Cox that there would be a public hearing on Thursday 20th

March. They were invited to apply for representation “at the forthcoming public hearing into a trial of four in one vaccine that took

place in six institutions throughout the State between December, 1960 and November, 1961”.

29. This intimation marks the commencement of a new phase in the correspondence between the parties.

30. From the correspondence it appears that, on the 18th March, 2003 there was a telephone conversation between the relevant

people in the Commission and in Arthur Cox and Company as a result of which it was indicated for the first time that the Commission

“at any such future hearings would require your client’s attendance and should you have any basis for suggesting otherwise you

should put the same in writing as soon as possible”.

31. The letter continued by stating that any objection to his attendance on medical grounds should be put in writing with all

supporting documentation and that an independent assessment of his capacity would take place “and the decision thereon would be

announced at a public hearing”.

32. This conversation, and the subsequent written confirmation of it by letter of the same day was the subject of immediate response

from Professor Meenan’s solicitors. Again, I have to differ from the learned trial judge in relation to the interpretation of this letter,

which is also dated the 18th March, 2003. Smyth J. interpreted the letter as meaning that after four months the solicitors had still

done nothing about procuring medical reports. I do not take this view of it at all. I consider that the solicitors were entitled, as they

say in the text, to regard the correspondence of the 13th January, 2003 as holding out the prospect that public examination and

cross-examination might be unnecessary if a statement were furnished. Until this matter was decided there would have been no point

in addressing the medical issue which might not arise at all. As noted above, this interpretation is strengthened by the terms of the

Tribunal’s own note of its decision:-

“If no statement – he will be subpoenaed”.

33. The letter goes on to point out that Cox’s letter of the 12th December, 2002, seeking details about the nature and extent of their

client’s anticipated involvement for the purpose of putting this information before the medical consultants, had not evoked any

specific response.

34. This observation is factually correct. Moreover the Tribunal had at one stage – in January and February 2003 – been prepared to

delay further investigation of the Professor’s medical condition until they got his statement. When, on the 21st January, 2003 the

solicitors wrote agreeing in principle to independent medical assessment and seeking to make arrangements for it, the Commission, by

letter of the same day said “Once the Division is in receipt of [the statement] it can then determine whether the question of

independent assessment as to his capacity to give evidence can be deferred”.

35. Finally, the letter of the 18th March stated that the solicitors would now procure the medical reports and send them to the

Tribunal “on a strictly confidential basis”.

36. On the following day, the solicitors indicated that their client did not consider that he required representation at the public

hearing. This letter elicited the Commission’s letter of the 19th March, 2003 which is another very significant letter in this sequence.

The Commission said:-

“In advance of the public hearing scheduled for tomorrow morning, however, I wish to convey my view that it appears to

me that Professor Meenan does indeed require some form of representation. I make this comment in light of the indication

given by you as to your belief that Professor Meenan is incapable of giving evidence at a public hearing. Clearly any issue

as to incapacity will have to be dealt with in accordance with the procedures outlined to you in my previous

correspondence. It would therefore appear appropriate that he be represented at the hearing tomorrow where any such

application to set that process in motion could be made to the Division”.

37. On the hearing of this appeal it was conceded by Mr. Clarke S.C. for the Commission that this was the first, oblique, indication

that the question of Professor Meenan’s capacity to give evidence would have to be raised at a public session. By further letter of

the 2nd April, 2002 this position was expanded and put beyond doubt in the following words:-

“As has been indicated to you on a number of occasions the Division cannot possibly make a decision, otherwise than in a

public forum, as to the question of Professor Meenan’s capacity to give evidence. No such decision can be made in

private, as one would have thought would be obvious to a solicitor of your experience. Additionally, it is quite likely that

such issue would have to be dealt with on oral evidence.

The purpose of sending your client the Direction to attend was to induce any application you, as his legal adviser, sought

(sic) fit to bring, based on whatever medical evidence you intend to rely. As you are aware there is a public hearing

scheduled for Tuesday 8th April, 2003 here at the Arbitration Centre, Distillery Building. It would appear that that would

be an appropriate time for you to move whatever application on this regard you deem appropriate”.

38. This, in my view, is a very significant letter. The second paragraph reflects the fact that, on the 28th March, 2003 the

Chairperson of the Commission had made an order under s.14 directing the attendance of Professor Meenan before the Commission on

the 17th June “and thereafter from day to day as required to be examined on oath ”. The meaning and significance of this Direction

will be considered below.

39. Both the letters of the 19th March and of the 2nd April, 2003 expressly state that, in regard to the exploration of the question of

Professor Meenan’s capacity at a public hearing, they are merely restating what has already been said. This is simply not so. Although

the decision that the question of capacity would have to be explored in public was apparently taken on the 17th January, 2003 the

Commission had refrained from communicating it to Professor Meenan’s solicitors. They had communicated that a decision on the issue

would be announced in public, which was a reasonable position to which no objection was taken. It is therefore difficult to understand

the somewhat blustering tone of the letter of the 2nd April in which the allegedly manifest impossibility of dealing with the capacity

issue otherwise than in a public forum is declared together with the observation that it is “quite likely” that the issue would have to

be dealt with on oral evidence. All this is quite wrongly said to have been previously communicated “on a number of occasions” and in

any event, it is trenchantly asserted, “one would have thought [it] would be obvious to a solicitor of your experience.” I cannot agree

that this should have been obvious to a solicitor or to any other reasonable person reading the correspondence which had by then

extended over a period of many months.

40. Still more remarkable, in my view, is the second paragraph announcing that the purpose of issuing the Direction to attend was

not, as one would have thought, to secure the evidence of a party which is required by the Commission but to induce the solicitors to

bring whatever application they thought fit in relation to capacity. This, however, must be regarded as the Commission’s stated

reason for issuing the Direction. To this, the solicitors replied that as a reason it was “quite extraordinary and it confirms us in our

view that this Direction was inappropriate and quite probably unlawful as being an improper exercise of statutory powers and a breach

of the requirements of natural and constitutional justice.”

41. In my view, the Commission’s letter of 2nd April plainly stated the proposition, said to be obvious, that the question of the

Professor’s capacity would be dealt with in a public forum, quite likely with oral evidence. This is a prospect which would be very

disturbing for any person. It would involve the medical condition of an eighty-six year old man who is well known in the city of Dublin

being discussed in a public forum and presumably available to be listened to by all comers, including journalists who would be free to

report it, if their better feeling did not prevent such a distasteful intrusion.

42. This position was sought to be qualified in a subsequent letter from the Tribunal, of the 4th April, 2003. This said that “Whereas

the fact of the application and its outcome must be in public, this does not mean that the Division intends to disclose personal details

of your client’s medical condition to the public at large. In the event of an application, the Division will decide on the format of any

inquiry into your client’s ability to assist it and the parties (if any) who should have a right to participate in that process”.

43. I would observe, firstly, that the procedure indicated here is radically at variance with that indicated in a letter written only 48

hours previously. The making of a decision, “quite likely on oral evidence” in a public forum is radically different from the publicising

only of the fact of the application and the decision on it. But the letter of the 4th April also indicates the prospect that third parties

might have a right to participate in the process.

44. This is an entire novelty. According to counsel it has yet to be decided whether such third parties will, in fact, be entitled to

participate or to be given copies of the medical reports on Professor Meenan. Nor was this the last novelty to be introduced. It

appears that on the 6th May, 2003 the author of the Commission’s letters telephoned Professor Meenan’s solicitors and said she

wondered if it suited them to attend with counsel at a private sitting of the Commission later that week “to make representation as to

whether the application outlined in our letter to [the Commission] of the 9th April, 2003 ought to be made in public or in private”. So,

at least, Messrs. Cox and Company summarised the call. But this was said to be a misunderstanding. In a letter of the 7th May, 2003

the person who had made the call wrote to the solicitors saying:-

“Whilst one aspect of our telephone conversation dealt with the issue of the public/private nature of the application to

excuse attendance by Professor Meenan the other aspect was the actual making of that application before the Division

i.e. before the Chairperson and Professor Tempany who, by statute, are the persons charged with making such a decision

on the issue you have raised”.

45. It thus appears that the Commission was wavering on the question of whether the application in relation to capacity should be

made in public or in private. But this matter never went any further because the solicitors took the view that they had already made

their application, supported by medical reports in their letter transmitting the latter of the 9th April, and that it was for the

Commission, or its Division, to make a decision on that matter. There was, they say, no other “application” in being. I agree.

Summary of findings on correspondence.

46. It appears to me that the Commission has been neither straightforward nor consistent in their correspondence about the

necessity for Professor Meenan to attend for oral examination and cross-examination, nor about the manner in which the issue of his

capacity to do so will be decided. The effective correspondence on this topic extends from October, 2002 to May of this year. The

Commission asks for medical reports to be transmitted to it about Professor Meenan’s capacity. It does not satisfactorily reply to the

solicitors letter which in effect asks the Commission to specify what it will require Professor Meenan to do, so that his capacity to do

it can be medically investigated. Instead, it seeks a very detailed statement which (as it points out) the Professor is under no legal

obligation to give. The Commission holds out the prospect that oral examination or cross-examination “may or may not arise”. In a

private decision on the 17th January, 2003 it decides that the Professor will be subpoenaed if he does not make a statement, but this

is not communicated to his advisers. Having obtained the statement the Commission declares for the first time that the question of

his capacity will be investigated in public, and quite likely on oral evidence. It had, however, taken a decision to do this some months

previously but again had not communicated it. Very shortly after this, the Commission issues the Direction to attend and a few days

later says that it did so to induce Professor Meenan’s solicitors to make an application on the capacity question.

47. This course of correspondence, which unfortunately became acrimonious, seems to me to arise from two salient features. The

first is that the Commission appears to have failed adequately to analyse its own terms of reference set out in the statutory

instrument of 2001. The interpretation placed on these is absolutely fundamental both to the Commission itself in relation to its

procedures and to the likely duration and expense of its work and to individuals against whom it may issue mandatory Directions to

attend. A remit “to inquire into the circumstances, legality, conduct, ethical propriety and effect (on the subject) of a vaccine trial”

might be interpreted as a purely historical enterprise involving the ascertainment of the factual content of the trials and their context,

and a consideration of the legality conduct, ethical propriety and effect of them. It may be that this would seem a reasonable

construction in all the circumstances, especially having regard to the fact that the trial occurred forty-three years ago. Alternatively,

the terms might be interpreted as involving the establishment of personal responsibility for particular aspects of the trials which might

be found to be unlawful improper or otherwise open to criticism.

48. It is quite clear that a second interpretation will lead to a form of inquiry which will be infinitely more formal in its procedures and

prolonged in its duration than the former. More people will be entitled to representation, and entitled to cross-examine than if no

individual reputation stood to be impugned.

49. This distinction is thrown into prominence by the question of why third parties might be given the medical reports on Professor

Meenan. By letter of the 8th May, 2003 the solicitor to the Vaccines Trial Division (who had by this stage taken over the

correspondence) stated that “It is possible that other participants could be affected by your client’s non-participation. It is therefore

necessary for the Division to determine (again at a hearing) whether there are such affected third parties and in turn whether they

should be afforded an opportunity to be heard”. This is advanced as a reason for refusing to accept the medical reports on a

confidential basis.

50. Despite this, on the hearing of this appeal counsel for the Commission informed us that no decision had been made up to the

present time as to whether or not it would be necessary to give Professor Meenan’s clinical details to other parties and that he did

not know whether the Commissioner’s interpretation of its remit envisaged the making of adverse findings against individuals or not. I

have however been able to locate the opening statement of the Vaccine Division delivered by the chairperson on the 23rd January,

2002. Under the heading of “Legal Representation and Costs”, the statement reads:-

“It is recognised that every person whose conduct is impugned in the course of the inquiry or who may be materially

adversely affected by a determination of the Division is entitled to legal representation in this process.”

51. Secondly, it appears to me that the Commission has either failed to come to firm decisions as to its own procedures or failed to

communicate these to Professor Meenan adequately or at all. Here, the most relevant aspects are the question of whether Professor

Meenan would certainly be called to give evidence and be cross-examined, or whether that prospect might be avoided and the

separate issue of how his assertion of incapacity to do this would be adjudicated upon. It appears clear to demonstration that he was

not told that the question of capacity would have to be decided “in a public forum” for more than two months after a decision to that

effect had been made. It is probable, in my view, that the reason for this was because of an apprehension on the part of the

Commission’s legal team, that if he were told it, he or his solicitor might see no point in providing the Tribunal with a statement,

especially in view of the very considerable effort which that cost Professor Meenan.

52. In relation to the question of whether there was a real prospect that examination or cross-examination might not arise, on the

balance of probability I am of the opinion that there was no such prospect and that the possibility that examination and cross-

examination “may nor may not arise” was floated and kept in play for the purpose of encouraging the production of a statement. I am

slightly less emphatic about this than about the previous finding because I do not know when the Commission came to the views

expressed in its letter of the 18th March, 2003 which seem inconsistent with the possibility of avoiding examination and cross-

examination other than on medical grounds. But having regard to the Commission’s view expressed there and the likelihood that they

had formed some at least of the views expressed on the 18th March at a much earlier stage, I feel able to make the finding mentioned

on the balance of probabilities. It follows from the foregoing that I do not think that the Commission’s legal team, or that portion of it

engaged in the Vaccine Trials Inquiry, treated Professor Meenan in a fair or straightforward fashion, or in the fashion that any person

of his seniority and state of health was entitled to expect. On the other hand I believe that Professor Meenan, through his solicitors,

made constant attempts to arrive at a mutually satisfactory arrangement but was stymied in doing so by the inconsistency and non-

disclosure on the part of the Commission. I would specifically comment on the statement, made during the Commission’s

correspondence, that the legal team had formed the view that Messrs. Arthur Cox and Company had engaged in prevarication. There

is no evidence whatever of this. The deployment of the term, in my view, illustrates the aggressive tone taken in portions of the

correspondence which, to say the least, was not conducive to arriving at agreement. But, of course, it may be that the Commission

did not have to seek any agreement because they had an unqualified right to issue a direction to attend. It is to that question that I

now turn.

Legal submissions.

53. Extensive oral and written submissions were made on both sides. Although there was a very sharp disagreement between the

parties, especially in relation to the construction of the correspondence, there was agreement on certain legal points which may be

summarised as follows:-

(a) It was accepted that, by analogy with the jurisprudence in relation to Tribunals of Inquiry, the Commission is required

to observe fair procedures in the exercise of its powers, including its powers of compulsion.

(b) It was accepted that a citizen has an unenumerated right under Article 40.3 of the Constitution to bodily integrity.

Such a right extends to an entitlement not to have such citizens health endangered.

(c) A citizen has a right to the defence and vindication of his good name.

(d) In considering whether an interference with a right may be justified, having regard to the exigencies of the common

good, it may be necessary for any person or body exercising statutory powers to apply a test of proportionality.

54. The foregoing is taken almost verbatim from the respondent’s submissions. I did not understand the appellant’s counsel to take

issue with it.

55. I have no doubt that, in the circumstances of this case including Professor Meenan’s age, the remoteness of the events under

inquiry, and his state of health insofar as known to the Commission through the only medical report it consented to read, there was at

all times a real and substantial question as to the effect of prolonged examination and cross-examination, or indeed of any prolonged

intellectual effort, on his health. In constitutional terms, this raised his right to bodily integrity. His right to his good name was also

clearly a factor in particular having regard to the nature of the Commission, as opposed to the Division, under whose remit he was

summoned and to his possible inability to do himself justice in a forensic environment. None of these matters, of course, were

determinative of the ability of the Commission or Division to exercise a statutory power, but they required to be considered.

56. A particular context against which the foregoing matters require to be considered was well expressed in the judgment of Costello

J. in Heaney v. Ireland [1994] 3 IR 593. The learned judge said:-

“In considering whether a restriction on the exercise of rights is permitted by the Constitution the Courts in this country

and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal

restraint on the exercise of protected rights and the exigencies of the common good in a democratic society. This is a

test frequently adopted by the European Court of Human Rights and has recently been formulated by the Supreme Court

of Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant

overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic

society. The means chosen must pass a proportionality test. They must:

"(a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations,

(b) impair the right as little as possible and

(c) be such that their affect on rights are proportional to the objective”.

57. The case advanced on behalf of Professor Meenan was that the medical reports provided to the Commission made it quite clear

that the detriment to him, and the infringement of his constitutional rights, represented by being compelled to testify is wholly

disproportionate to the benefits of his testimony. However, this issue was never adjudicated upon because both the Commission and

the High Court declined to peruse the medical reports.

58. Accordingly, since I have already held that there is a real issue in relation to the proportionality of the order made by the

Commission, the immediate question in these proceedings is a procedural one. Was the Commission or its Division correct in declining

even to consider medical reports supplied on a confidential basis, and instead requiring the question of incapacity to be explored by

means of a public hearing? And what effect, if any, has the course of dealings between the parties, in writing and by telephone, on

this question?

59. Mr. Hanratty S.C. for Professor Meenan did not contend that there was any general obligation on a body possessed of a statutory

power such as that conferred by s.14 to consult a person affected before exercising the power. I am quite satisfied that he was wise

in refraining from doing so, and that there is no such general obligation to consult. But he submitted that if there is reason to believe

that the exercise of a statutory power would in itself have effect on constitutional rights, the obligation, ceteris paribus, to entertain

representations on whether or not the power should be exercised is triggered. Furthermore, he submitted, on the facts of this

particular case the form in which representations should be received is affected by the course of dealings between the parties and

cannot be unilaterally changed by the Commission.

60. For the Commission and Division, Mr. Clarke S.C. contended that there was no onus on the Division to consider the necessity of

Professor Meenan’s attendance before exercising the statutory power. The Tribunal were, however, entitled to consider the question

of necessity if and when Professor Meenan applied to set aside the Direction. The Commission or Division were entitled to lay down

the procedures for such an application including whether or not it should be made in public.

61. Mr. Clarke went on to mount a further argument. The Court should not, he said, look at the Direction to attend in isolation or in

the context only of the correspondence preceding it, or even of that correspondence and the further letters roughly

contemporaneous with the Direction and said to be explanatory of it. The Court should also take into account the later

correspondence in which the Commission offered Professor Meenan a private hearing - “The initial hearing” – to make submissions as

to the process which should be followed in determining the capacity issue and in particular whether this process should be in public or

in private or partly one or partly the other and the question of what other parties (if any) might be entitled to participate in the

process.

Decision on the legal issues.

62. It is convenient to deal with the last issue first. The Tribunal made its order on the 28th March and communicated it to Professor

Meenan’s solicitors on the 31st. It then elected to explain the effect of its order, the purpose for which it had been made, and the

circumstances in which attendance might be avoided on medical grounds in its letter of the 2nd April. The Direction, the letter of the

2nd April and the preceding correspondence are in my opinion all linked as relating either to representations made to Professor Meenan

or to statements by the Tribunal about the effect or motivation of its action.

63. Correspondence subsequent to that date, in particular the letter of the 4th April, the telephone call of the 6th May and

subsequent correspondence relating to it are in my opinion in a different category. They do not explain the reasons for the making of

the order. They attempt to resile from the unambiguous decision communicated by the letter of the 19th March to the effect that the

decision as to Professor Meenan’s capacity would have to be taken in a public forum, quite likely on oral evidence. To this was later

added the possibility that the medical evidence or reports would have to be communicated to third parties.

64. In Haughey v. Moriarity [1999] 3 IR 1 an order to produce documents sent to the applicants’ bankers without notice to the

applicants’ were challenged. The orders contained statements to the effect that the applicants could make representations in relation

to the orders. In the judgment of Hamilton C.J. it is said:-

“Fair procedures require that before making such orders, particularly the nature of the orders made in this case, the

person or persons likely to be affected thereby should be given notice by the tribunal of its intention to make such order,

and should have been afforded the opportunity prior to the making of such order, of making representations with regard

thereto. Such representations could conceivably involve the submission to the tribunal that the said orders were not

necessary for the purposes of the functions of the tribunal, that they were too wide and extensive having regard to the

terms of reference of the tribunal and any other relevant matters.

The Court is satisfied that the trial judge was correct in his findings that the order sought to be impugned herein made by

the tribunal were made in contravention of the requirements of constitutional justice and that fair procedures were not

adopted by the tribunal in the making of such orders.

Such failure was not remedied by the insertion in such orders of the provision that the person to whom the order was

directed or any person affected thereby had the right to apply to the tribunal to vary or discharge that order. That is so

particularly having regard to the circumstances of this case, the nature of the orders made and the time scale within

which compliance therewith was ordered”.

65. In the present case, there was no notification in the terms of the order of any right to make applications about it, or to set it

aside. Instead, the Commission attempted to lay down a procedure which is not envisaged in the statute, or in any rules, but is of

their own devising. They then blew hot and cold as to whether this “application” would be made in public or in private and finally

suggested that this question could be decided after an “initial hearing” which would itself be in private.

66. In my opinion, the validity of the order of the 28th March, and the question whether this Court should enforce it, has to be

decided in terms of the order itself, the purposes for which it was made, and in the context of the previous dealings between the

parties. Even apart from this, the notion of an “application” to set aside the Direction is a device without authority or precedent

(unlike, for example, the well established procedure for setting aside a witness summons directing attendance at court). The validity

of the order made on the 28th March cannot depend on the existence of such an ad hoc procedure or the result of its exercise.

Legal significance of the correspondence.

67. In my view, it is unnecessary to decide whether in any circumstances there is an obligation on the Commission to enter into

discussions with a person affected before issuing a direction to him under s.14. The fact is that it did enter into such discussions with

Professor Meenan, at prolonged and tedious length. While there is no obligation on a person to cooperate with these informal

explorations it is often considered to be mutually beneficial to do so. Here, after the Commission had contacted Professor Meenan,

they engaged with each other at great length. As a result of this engagement the Professor made an affidavit of discovery (which he

was bound to do) and a detailed statement (which he was not bound to do). The Commission made representations to him, some

express and some implied. It was in the context of these representations – I say no more for the moment – that Professor Meenan

made his statement.

68. The representations made included the following:-

- That the Tribunal had the utmost compassion and respect for the health and welfare of Professor Meenan in his dealings

with the Inquiry.

- That the Commission required an up-to-date medical report on Professor Meenan’s ability to cooperate with its work and

that it might be necessary to have an independent examination.

- That the question of his capacity to give evidence would be decided on the basis of such reports and examination.

- That if Professor Meenan was raising the issue of medical incapacity the Commission would wish to have him

independently assessed and that this was a matter of urgency.

- That the matters raised in Messrs. Cox’s letter of the 12th December, 2002 “may or may not arise”. These included the

question of whether public examination and cross-examination of Professor Meenan was envisaged.

- That the purpose of inviting Professor Meenan to make a statement was “to obviate the necessity for protracted

examination and cross-examination … in public” so that the request to make a statement was in ease of him.

- That the Commission had little option but to arrange an independent medical examination and wanted to make

arrangements about this.

- A little later, that the question of independent assessment may be deferred, once the Division is in possession of

Professor Meenan’s statement.

69. In my view the combined purport of these representations amounts to a representation that it was possible that the Professor

would not be required to attend for examination and cross-examination in public if he made a statement; that the nature of the

statement would have a bearing on whether he would be so required; that the question of his capacity or incapacity to give evidence

would be decided on a scrutiny of his medical reports and on the basis of an independent assessment by a practitioner nominated by

the Commission; but that this, too, might become unnecessary, or less urgent, depending on the contents of his statement. It was

also represented that the decision on the question of capacity would have to be given in public. To my mind, on the basis that

expressio unius exclusio alterius, this implies that the procedure leading to the decision will not or need not be arrived at in public.

70. What are the effects of these representations? In my view they were intended to create an expectation in Professor Meenan’s

and his advisers minds firstly that public examination and cross-examination was not inevitable; secondly that the issue of whether

these things would be required of him would be affected by the question of whether he made a statement, and of what its contents

was; thirdly that the question of his medical capacity would be decided by medical reports and independent examination. I am quite

satisfied that the decision eventually communicated to address the last issue in public, quite likely by oral evidence, and (later)

possibly with the involvement of third parties who would be privy to the medical evidence, was a bolt from the blue and caused

genuine dismay to Professor Meenan and indeed to his solicitors.

Promissory estoppel and legitimate expectation.

71. These two legal concepts deal with differing circumstances in which a party may be prevented from resiling, or affected in the

extent to which he can resile, from his own representations. The first doctrine has the broader scope and was well expressed by

Griffin J. in Doran v. Thompson Limited [1978] IR 223 as follows:-

“Where one party has, by his words or conduct, made to the other a clear and unambiguous promise or assurance which

was intended to affect the legal relations between them and to be acted on accordingly, and the other party has acted

on it by altering his position to his detriment, it is well settled that the one who gave the promise or assurance cannot

afterwards be allowed to revert to their previous legal relations as no such promise or assurance had been made by him,

and that he may be restrained in equity from acting inconsistently with such a promise or assurance”.

72. The more novel principle of legitimate expectation is, perhaps, narrower in its scope but easier to trigger. In Kavanagh v. The

Governor of Mountjoy Prison and The Attorney General (Supreme Court unreported 1st March, 2002 Fennelly J. said:-

“The principle of respect for legitimate expectations, though novel and as yet not fully explored, can be confidently

defined as a rule applicable, ratione materiae, to the decision making process. Where the State is involved, it should be

assumed for present purposes that all makers of administrative decisions may come within its scope once the State has

adopted a relevant position in the international sphere. On that hypothesis, decision makers should not be allowed to

disappoint expectations which they have themselves created and which are reasonably entertained by those within the

prevue of the powers they exercise. Why, one asks? The simple, almost naïve answer is that it would be unfair. I

discussed this in my judgment in Daly v. The Minister for the Marine and the Attorney General (Supreme Court unreported

4th October, 2001).

73. I respectfully agree with, and adopt, this lucid passage. It is in my view irrelevant whether the State, or an emanation of it such

as the Commission has adopted a relevant position in the international or the national sphere, so long as the position was adopted.

74. Commenting on the principle of legitimate expectation at an earlier stage of its development, O’Hanlon J. said in Fakih v. Minister

for Justice [ 1993] 2 IR 406:-

“I share the view expressed in the cases cited that the plea of legitimate expectation is available and can be relied upon

in the category of cases referred to in the judgments, although it may have some of the characteristics of the unruly

horse which were associated with the plea of public policy.

As the law has developed it has come to be applied in situations where the conventional plea of estoppel by conduct

might not be available since the parties seeking to rely on the plea of legitimate expectation may not be able to establish

that he has been induced by the conduct of either party to act to his own detriment”.

75. I do not consider, however, that this distinction is of particular significance in the present case since I am satisfied that a part of

the reason for making the representations to Professor Meenan was to induce him to make a statement as opposed to remaining silent

at least until he saw what anyone else had to say about him. In the context of an inquiry with possibly adverse consequences,

however theoretical, I believe that this can be described as a detriment.

76. A greater difficulty in the way of applying the principle of legitimate expectation is the undesirability and indeed the practical

impossibility of tying the hands of a public authority too tightly, whilst still expecting it to discharge its functions. This drawback is

hinted at in the passage cited above from O’Hanlon J. Fennelly J., in the case cited, suggests the nature of a solution of this dilemma

when he says, a little after the passage last cited, “Moreover the doctrine of legitimate expectation does not in the ordinary course

of events guarantee anything more than procedural fairness. (Emphasis added). He then adopts a dictum from an Australian case:-

“The existence of a legitimate expectation that a decision maker will act in a particular way does not necessarily compel

him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard

a legitimate expectation as requiring the decision maker to act in a particular way is tantamount to treating it as a rule of

law”.

77. I take this to mean, perhaps amongst other things, that there may well be scope for a decision maker to resile from an

expectation he or she has created if there is good reason to do so and if it can be fairly be done. But I do not consider that this has

any application in the present circumstances. The need for Professor Meenan to attend the oral hearings is announced out of the blue

without any attempt to explain why the possibility that this ordeal might be avoided, specifically raised by the Commission, has

vanished. There is not so much as an acknowledgment, in the letter of the 18th March, that the possibility ever existed. In relation to

the need to establish incapacity in public, the position is still plainer. The writer asserts that this has already been made clear. Later

it was alleged that this had been made clear “on a number of occasions”.

78. I have no doubt that the person who took up this position had convinced herself that it was so. But it was not. She then

contended that it was in any event obvious, at least to an experienced solicitor, but I cannot see this either.

79. She placed reliance on her own letter of 20th January 2003 in support of these contentions. That letter emphatically does not

communicate the information that the capacity hearing would be in public or , “quite likely” on oral evidence. The letter is in striking

contrast with the Commission’s internal note of the decision the letter purports to communicate. It does not mirror or event hint at

the following decisions:

“- If we do decide he not capable – would have to do it in public.

- For purposes of that hearing we would have to have sep. ind. ass in public.” (Emphasis in original)

80. In my view the flurry of fraught correspondence between the 18th March and the 2nd April, 2003 is consistent only with the

proposition that the Commission or Division had decided to jettison the previously indicated approach to bring the matter to a head.

They ignored, and indeed denied, what I have found to be the representations previously made. They showed little sensitivity to what

many people would regard as the horror of telling a very old man that his medical capacity to give evidence would be discussed in a

public forum, and his medical particulars perhaps shared with third parties who might be in conflict with him. The subsequent efforts

to suggest that this was not inevitable – and it goes no further than that – suggest to me only that some consciousness of how

outsiders might view the issue dawned on someone at the Commission or Division.

81. I am fully aware that the work of the Commission and Division is arduous, demanding and I am sure sometimes overwhelming. In

those circumstances it must be easy to lose sight of the human preoccupations of other persons whose life the Commission may,

unintentionally, affect adversely.

I do not think Professor Meehan was treated fairly with due regard to his years and afflictions. Having regard to the course of dealings

between Professor Meenan and the Commission, and the representations made during those dealings, I do not think the Commission or

its Division were entitled unilaterally to impose upon him a manner of dealing with the question of his capacity, which had always been

an issue, quite different and much more disturbing than the one indicated over a long period of time. In my view, many people would

rather abandon the issue of capacity altogether than suffer the ordeal, or even the possibility, that intimate medical details might be

discussed in public or given to potentially antagonistic persons. I do not think that, having received Professor Meenan’s detailed

statement, the Tribunal were entitled, without stating reasons, wholly to discount the possibility, on the basis of which the statement

had been sought, that public examination and cross-examination might be avoided. I do not think the Tribunal showed sufficient

sensitivity to the very great effort which participation in that form might represent to a man in his eighty-seventh year, despite his

great capacities and distinguished history, nor to the horrifying prospect, to such a person, that he might not prove equal to it. In the

end, it might have been necessary to discount these factors in the public interest, but I question if this can be done in a fashion as

sudden, cavalier and unreasoned (having regard to previous representations) as was sought to be done here.

Ground of decision to issue the Direction.

82. I do not propose, however, to ground my decision in this case in terms of legitimate expectation because we have not been

invited to do so, although the correspondence between the parties was characterised at the end of Professor Meenan’s written

submissions in a way which might have left that approach open. Instead, I prefer to approach it on the narrower but, on the facts of

this case, closely related basis of whether the order was made for a proper purpose.

83. The purpose of serving a direction on Professor Meenan was clearly stated, as noted above, in the Commission’s letter of the

22nd April, 2002. This said:-

“The purpose of sending your client the Direction to attend was to induce any application you, as his legal adviser, sought

(sic) fit to bring, based on whatever medical evidence you intend to rely. As you are aware there is a public hearing

scheduled for Tuesday 8th April, 2003 here at the Arbitration Centre, Distillery Building. It would appear that that would

be an appropriate time for you to move whatever application in this regard you deem appropriate”.

84. It is clear, however, from the terms of s.14(1)(a) that the only power to issue a direction to attend which could conceivably be

relevant to this case is that he is required to give evidence.

85. On the Commission’s own statement, the Direction to attend appears to me to have been issued for a purpose other than a lawful

statutory purpose. I am further of the opinion that the purpose for which, on the Commisson’s own statement, it was issued is an

improper one. It was quite clear from the correspondence, including the correspondence immediately prior to the 2nd April, 2003, that

Messrs. Cox and Company strongly objected to the discussion of Professor Meenan’s capacity to give evidence at a public hearing.

The only possible meaning of the paragraph quoted above from the letter of the 2nd April is that the purpose of issuing the Direction

was to force them to do precisely that, and to do so at a time when the Commission had recently informed them that the decision on

capacity would be made at a public forum and quite likely on oral evidence. So viewed, the issue of a direction was intended to pre-

empt any further discussion on the merits or propriety of this mode of procedure by “inducing” the solicitors to make their application

at a public hearing six days after the date of the letter. This was an improper purpose capable of leading in the discretion of the Court

to the quashing of the Direction. Since I have already indicated my view that Professor Meenan was not treated fairly by the

Commission in their dealings with him over the preceding six months or so I have not hesitation in exercising my discretion in favour of

quashing the Direction to attend.

Conclusion.

86. I would allow the appeals. I would dismiss the Commission’s application for an order pursuant to s.14(3) of the Act and ancillary

relief. I would grant an order of certiorari quashing the direction to attend.