Supreme Court grants leave for judicial review and injunction against Tribunal's public hearing on Doncaster Rovers purchase.

THE SUPREME COURT

Murray C.J.

McGuinness J.

Hardiman J.

Fennelly J.

Kearns J.

[448/2004]

BETWEEN

DENIS O’BRIEN

Appellant

and

MR. JUSTICE MICHAEL MORIARTY (THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES

HAUGHEY and MICHAEL LOWRY)

Respondent

and

THE ATTORNEY GENERAL, REPRESENTING THE PUBLIC INTEREST

Notice Party

JUDGMENT of Mr. Justice Fennelly delivered the 12th day of May, 2005

1. On 17th September 2004, the Applicant issued a Notice of Motion seeking Judicial Review of the decision of the Respondent (to

whom I will refer as “the Tribunal”) dated 27th May 2004 to “proceed to public hearings in respect of the purchase of Doncaster

Rovers Football Club and the purported “connection” of Michael Lowry to the said purchase” and an interlocutory injunction

restraining the Tribunal from proceeding with those hearings.

2. The application for leave was heard by Herbert J in the High Court on 21st September 2004. Counsel on behalf of the Tribunal was

permitted to present argument against the grant of leave. Herbert J ruled that the application for leave was, nonetheless, ex parte

and that counsel for the Tribunal was heard only because of the associated application for a stay on the proceedings of the Tribunal.

3. Herbert J, by order dated 30th September 2004, refused the Applicant leave to institute proceedings by way of Judicial Review of

the decision of the Respondent. He delivered a written judgment on 26th November.

4. The Applicant served notice of appeal against the High Court order on 4th October 2004. Nonetheless, the Court is dealing with an

application for leave to apply for Judicial Review. This is clear from Order 58, rule 13 of the Rules of the Superior Courts which

provides:

“Where an ex parte application has been refused in whole or in part by the High Court an application for a similar purpose may

be made to the Supreme Court ex parte within four days from the date of such refusal, or within such enlarged time as the

Supreme Court may allow.”

5. The primary function of this Court on this application is to decide whether leave should be granted. The standard to be met on

such an application is, as stated in G v Director of Public Prosecutions and another [1994] 1 I.R. 374: per Finlay CJ: “…that the facts

averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial

review” and, per Denham J at page 382, having described the burden as “light,”: that the “applicant is required to establish that he

has made out a stateable case, an arguable case in law.”

6. Counsel for the Tribunal have argued that, where arguments have been heard in opposition to the leave, as in this case, a different

and higher standard should be adopted. Counsel drew attention to the decision in Gorman v Minister for the Environment [2001] 1

I.R. 40, where Kelly J expressed doubts as to whether it was appropriate to adhere to the G v DPP case standard where there had

been extensive argument inter partes. However, it had been agreed to maintain that as the relevant standard at the outset of the

hearing and the learned judge felt it would be unfair to depart from that ruling. Nonetheless, he cited a number of English decisions.

Counsel for the Respondent relies on decisions in Mass Energy Limited v. Birmingham City Council [1994] ENV., L.R. 298; R. v.

Cotswold District Council, ex parte Barrington [1998] 75 P. and C.R. 515; R. (Portland Port Limited) v. Weymouth and Portland

Borough Council [2001] E.W.H.C. Admin. 1171; R. v. Derbyshire County Council ex parte Woods [1997] J.P.L. 958. In Mass Energy

Ltd. v. Birmingham City Council [1994] Env. L.R. 298, at pp. 307 and 308 Glidewell L.J. said:-

"First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave

were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive

hearing. In particular, we have had all the relevant documents put in front of us ... Thirdly, as I have already said, we have

most, if not all, of the documents in front us; we have gone through the relevant ones in detail - indeed in really quite minute

detail in some instances - in a way that a court dealing with an application for leave to move rarely does, and we are thus in

as good a position as would be the court at the substantive hearing to construe the various documents.

For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be - and the

approach I intend to adopt will be - that we should grant leave only if we are satisfied that Mass Energy's case is not merely

arguable but is strong; that is to say, is likely to succeed.”

7. In the later case of R. v. Cotswold District Council, Keene J spoke of “a reasonably good chance of success if he is to be given

leave." The English courts appear to have applied this modified approach both at first instance and to the renewed application on

appeal.

8. Without excluding the possibility of following this line of thinking, I do not think it appropriate in the present instance. The fact that

Herbert J declined to apply it is not, in itself, conclusive, though it is a matter to be taken into account. At the hearing of the

application, the matter proceeded without any decision in limine. Thus, although counsel for the Tribunal had argued in their written

submissions for the modified approach, counsel for the Applicant did not agree. The hearing took place without any decision as to the

applicable standard. Therefore, for the reasons given by Kelly J in the Gorman case, I believe it would be unfair to require the

Applicant retrospectively to meet a more exacting standard than the one which is normally applied. In addition, I would have serious

reservations as to the implications of adopting a modified standard on the renewed application in this Court. Were this Court to

determine, at the leave stage, that the case was a “strong” one, I believe that would be regarded as virtually deciding the case or,

at least, leaving the High Court judge in great difficulty as to the standard to be applied by him.

9. One further observation is appropriate before considering the facts and background. In any case where the Court is disposed to

grant leave to apply for Judicial Review under certain headings, it is essential that it abstain from expressing or hinting at any view

regarding the strength of the applicant’s arguments. Those arguments must be dealt with by the High Court exactly as if leave had

been granted in the High Court.

10. The Terms of Reference of the Tribunal are contained in the resolution passed by the Dáil and Seanad in September 1997 and set

out in the Order of the Taoiseach of 26th September 1997 setting up the Tribunal. Two aspects of the Terms of Reference, one

substantive and one procedural, are relevant to the present application. The relevant substantive part of the resolution is that it was

resolved:

“…that it is expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or

under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and

report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite

matters of urgent public importance:

a) to d) [not relevant]

e) Whether any substantial payments were made directly or indirectly to Mr Michael Lowry,… … … …during any period when

he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was

connected with any public office held by him or had the potential to influence the discharge of such office.

g) Whether Mr Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit

on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in

paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do

such act or make such decision.”

11. The term "payment," is defined so as to include “money and any benefit in kind and the payment to any person includes a

payment to a connected person within the meaning of the Ethics in Public Office Act, 1995.”

12. The relevant procedural provisions of the Terms of Reference are:

“And that the Tribunal be requested to conduct its enquiries in the following manner, to the extent that it may do so

consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:-

i. To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where

appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in

relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such

matters,

ii. To enquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to

report to the Clerk of the Dáil thereupon,

iii. In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full

public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks

appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed…”

13. The factual background to the application as disclosed in the Applicant’s grounding affidavit is principally relevant to the

contention that there is not “sufficient evidence” (the expression used in paragraph (i) of the Terms of Reference), or expressing the

converse “there is insufficient evidence” (the expression used in paragraph (iii)) “to warrant proceeding to a full public inquiry.” The

following summary of that background is based on the Applicant’s grounding affidavit. It may not, of course, be complete. But it is the

basis upon which, at this point, the facts apparently available to the Tribunal when deciding to proceed to public inquiry regarding the

Doncaster Rovers matter, need to be assessed for the purpose of deciding whether the Applicant has an arguable ground that there is

“insufficient evidence” to warrant a public inquiry.

14. The Applicant is a well-known Irish businessman. In his grounding affidavit, he describes himself as a businessman with an address

in Portugal.

15. In 1998, the Applicant received a proposal from one Kevin Phelan for the purchase of Doncaster Rovers Football Club. Mr Kevin

Phelan, who resides in the United Kingdom, and who is apparently not available to the Tribunal as a witness, contacted the

Applicant’s agent, one Aidan Phelan. The two Phelans are not related. On the recommendation of Kevin Phelan, one Christopher

Vaughan, an English solicitor was appointed to act for the purchaser in this transaction. Mr Vaughan had acted and was continuing to

act for Mr Lowry in connection with other English property transactions.

16. Doncaster Rovers was purchased in August 1998 by Westferry Limited, part of an O’Brien Family Trust, from Dinard Trading Limited

and Shelter Trust Anstalt. A Mr Ken Richardson was described by Mr Vaughan as the “controller” of these entities. The Trust, via

Westferry Limited, now owns all the shares in Doncaster Rovers. The transfer took place on 18th August 1998.

17. The Applicant gave details in his affidavit of the financing of this purchase. He says that Michael Lowry had no involvement, legal

or beneficial, at any stage in the transaction. In any event, Mr Lowry had resigned from the Irish Government two years before the

transaction, though he continued to be a member of the Dáil and was so at the time of the transactions covered by the Doncaster

Rovers module proposed by the Tribunal.

18. On 25th September 1998, Mr Christopher Vaughan, Solicitor, drafted a letter to be sent to Mr Lowry, discussing Doncaster Rovers

in some detail. This letter is central to the Tribunal’s decision under challenge. In it, Mr Vaughan stated, inter alia: “I had not

appreciated your total involvement in the Doncaster Rovers Transaction…...” According to Mr Vaughan’s later letter, that letter was

neither sent by Mr Vaughan nor received by Mr Lowry. An article based on the draft letter appeared in the Irish Times on 11th

January 2003. The Tribunal wrote to the Applicant making inquiries concerning any involvement of Mr Lowry in the Doncaster Rovers

transaction. Thus, the Tribunal commenced investigation of this matter in January 2003.

19. In the week following the meeting of September 1998 referred to in Mr Vaughan’s letter, Mr Kevin Phelan told Mr Vaughan that he

was mistaken about Mr Lowry’s involvement in the Doncaster Rovers matter. He had none.

20. By a letter dated 6th March 2003, Mr Vaughan wrote to the Tribunal explaining his letter of 25th September 1998, stating how he

had incorrectly believed that Mr Lowry had had such an involvement with the Doncaster Rovers purchase. Mr Vaughan, having

outlined the history of meetings with a number of the relevant persons including Mr Lowry, said that his earlier view was “totally

incorrect.” He accepted that in “hindsight it does seem unusual that I believed Michael Lowry to be involved in DRFC, as throughout

the whole of the discussions and negotiations relating to the acquisition of DRFC over a period of some nine months, I had never

heard Michael Lowry’s name mentioned…….”

21. The Applicant explains the background to the Vaughan letter as follows. On 24/25 September 1998, Mr Lowry, accompanied by Mr

Kevin Phelan, who had organised property transactions for Mr Lowry in England, to a meeting with Mr Vaughan, who was acting for Mr

Lowry in other matters, to discuss Mr Lowry’s property transactions. During the course of the discussions, Mr Vaughan and Mr Kevin

Phelan discussed the Doncaster Rovers purchase, in respect of which there were some outstanding matters. Mr Lowry remained

present and took part in these discussions.

22. A dispute arose subsequently between the parties to the Doncaster Rovers transaction regarding retention monies. Dinard, later

joined by Shelter Trust Anstalt brought proceedings in 2001 against Westferry Ltd in the Queen’s Bench Division of the High Court in

England. This dispute was resolved by mediation in September 2002.

23. A number of odd events are alleged to have occurred about this time. Mr Denis O’Brien, senior, the Applicant’s father later made a

statement to police alleging that Mr Richardson and Mr Mark Weaver attempted to blackmail him by threatening that, if the litigation

was not settled “in a friendly and generous manner, a copy of [Christopher Vaughan’s letter to Michael Lowry] would find its way to

the Tribunal or the newspapers.”

24. Mr Vaughan prepared a memorandum of 18th October 2002, describing a visit to his office on that date of one Mark Weaver, who

produced to him a copy of his draft letter of 25th September 1998 to Mr Lowry. He said this had been sent to him by FAX and that a

journalist from the Irish Times had been phoning him constantly about the letter. Mr Weaver described himself as Mr Richardson’s

“runner” but also said that he was employed by Dinard trading. He said that Dinard Trading’s solicitors in Zurich had had an approach

from a third party to purchase from them all documents in their possession about the Doncaster Rovers matter. Mr Weaver repeatedly

asked Mr Vaughan what he should do with the letter. Mr Vaughan took a copy of the fax copy of the letter. He also stated in the

course of the memorandum that Mr Lowry had had no involvement in the Doncaster Rovers transaction. He suggested that the

approach involved “some sort of blackmail.”

25. On 10th September 2002, Ms Ruth Collard, a partner in Carter-Ruck and partners, solicitors, who also acted for the Applicant

made an attendance note of a meeting with Mr Denis O’Connor, an accountant acting for Mr Lowry. Mr O’Connor is noted as saying

that he had been trying to sort out, on the Applicant’s behalf, the “position with Kevin Phelan” and that the latter had made various

threats to cause trouble for Mr Lowry. The attendance note contains the following:

“DOC said the upshot of all his discussions with DOB and KP had been that he had been asked if he would be prepared to meet

Ken Richardson and Mark Weaver and at DOB’s request a meeting had been arranged, first in Manchester and then in

Dublin……………. He said that the other side were laughing at us and that they would ensure that the mediation [regarding the

retention dispute] would not succeed…… They wanted to cause the maximum embarrassment to ML. RC asked how they

would cause any embarrassment to ML, as, so far as she was aware, he had no connection to the proceedings. DOC said that

ML did have a connection and that he had been in the room when discussions had taken place between KP and KR

regarding the lease. RC said no one had ever suggested that to her previously.” [emphasis added]

26. On 9th December, Mr Ken Richardson and Mr Mark Weaver presented themselves unannounced at the Tribunal Offices at Dublin

Castle. Mr Weaver stated that Mr Lowry was involved in the Doncaster Rovers transaction, that he himself was under police

protection that he was receiving mobile phone calls from Kevin Phelan, Christopher Vaughan and the Applicant. Mr Richardson said

that he had videos of conversations with Kevin Phelan and Christopher Vaughan stating that money had been given to Michael Lowry.

27. As already stated, the Tribunal commenced its investigations of the Doncaster Rovers matter in January 2003. In the course of

that investigation, the Tribunal obtained, inter alia, the entire file of Mr Christopher Vaughan, the full statement of Mr Denis O’Brien,

senior, made to the London Metropolitan Police, statements from other witnesses and copies of the title documents in connection

with the Doncaster Rovers transaction.

28. The Applicant says that the private phase of the Tribunal’s investigation of the Doncaster Rovers matter has produced “no

sufficient evidence” to justify proceeding to public hearings in respect of the Doncaster Rovers matter. A great volume of papers has

been placed before the court at the hearing of the present application.

29. It is, I think, fair to say that the Tribunal does not say that it has, in its possession, any direct evidence that Mr Lowry had an

interest in the Doncaster Rovers transaction. It is acknowledged that both the Applicant and Mr Lowry have stated that the latter

had no interest at any stage. Neither Mr Christopher Vaughan nor Mr Kevin Phelan is available to attend as a witness at the proposed

public hearings, though Ms Ruth Collard is. The Tribunal’s assessment of the state of the evidence is, perhaps best summarised in its

letter to the Applicant’s solicitors dated 14th July 2004:

“What has prompted the Tribunal to pursue this inquiry is the fact that while…… there is no reference to Mr Michael Lowry in

the title deeds, and while Mr Denis O’Brien, Mr Denis O’Brien Senior, Mr Christopher Vaughan and Mr Denis O’Connor have

denied any involvement on the part of Mr Lowry, there is information from which it appears that Mr Christopher Vaughan, Mr

Kevin Phelan, Mr Michael Lowry and Mr Denis O’Connor appear to have acted in such a way, on at least one reasonable view,

to indicate that Mr Lowry did have such an involvement.”

30. The Applicant has significantly attenuated the grounds upon which he now relies in seeking leave to apply for Judicial Review of

the Tribunal’s decision to proceed to public hearings in respect of the Doncaster Rovers transaction. They were summarised at the

outset of the hearing as follows:

1. That any potential involvement or interest by Mr Lowry in the Doncaster Rovers transaction could not amount to a “payment”

for the purposes of the Terms of Reference;

2. That payments, as defined in the Terms of Reference, could not include payments arising from transactions, such as the

Doncaster Rovers transaction, which were, at the time of the adoption of the Resolutions in 1997, in the future;

3. That, at the time of the decision of the Tribunal to proceed to public hearings, there was “insufficient evidence” of any

payment to Mr Michael Lowry;

4. That the Tribunal acted unfairly in conducting an interview in the United Kingdom with Mr Christopher Vaughan in September

2004, in light of the fact that he would not be available as a witness.

5. That the entire process and continued activity of the Tribunal is oppressive, because of excessive delay, since September

1997, in completing its inquiry.

31. The first, fourth and fifth of these grounds can be dismissed almost summarily. I believe they are without merit. The Terms of

Reference defines “payment” as including “money and any benefit in kind…” This expression is clearly not limited to money payments.

It plainly extends to any interest in a property or commercial transaction of any kind. It would make no sense to limit the scope of the

inquiry pursuant to paragraph (e) of the Terms of Reference by reference to any particular kind of property or benefit. Nor can I

discern any basis for the complaint regarding the interview of Mr Vaughan. If the non-appearance of Mr Vaughan as a witness gives

rise to any unfairness to the Applicant, the Tribunal will be bound to take appropriate steps to protect his legitimate interests, but the

mere fact of having interviewed Mr Vaughan cannot be a ground for Judicial Review. Finally, no evidence or argument has been

presented which could lead to the halting of the entire work of the Tribunal. It would be an extraordinary matter for the Courts to

intervene to restrain the completion of a task mandated by the Oireachtas. It would require exceptional evidence. None has been

presented.

32. I turn then to consider the remaining grounds.

Insufficiency of Evidence

33. The Applicant argues that there is no sufficient evidence to justify the Tribunal proceeding to public hearings. This argument is

combined with a submission that the Tribunal failed to conduct a full and proper inquiry pursuant to paragraph (i) of the Terms of

Reference. The relevant parts of the Terms of Reference, which I have described as “procedural” have been set out above.

34. It is well established by a long line of authorities of recent years in dealing with the various tribunals of inquiry that the

interpretation of the Terms of Reference is a function of the Tribunal and not for the courts and, furthermore, that it is entirely a

matter for the Tribunal to decide when and whether to conduct private investigations or to proceed to public hearings. Counsel for

the Tribunal referred in particular to Goodman International and another v Mr Justice Hamilton and others [1992] 2 I.R. 542; Haughey

and others v Mr Justice Michael Moriarty [1999] 3 I.R. 1; Redmond v Mr Justice Feargus Flood [1999] 3 I.R. 79; Bailey v Mr Justice

Feargus Flood (High Court unreported 6th March 2000).

35. Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921 is also relevant, insofar as it lays down the basic rule in favour of

proceedings being heard in public. It provides:

"A tribunal to which this Act is so applied as aforesaid -

(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the

tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the

subject matter of the inquiry or the nature of the evidence to be given..."

36. Tribunals of inquiry, however, necessarily have to conduct much of their initial investigations in private. This is both for practical

reasons and to protect the interests and confidentiality of persons assisting the Tribunal in its work. Furthermore, it enables the

Tribunal to decide that a particular matter does not warrant a public hearing. The different stages are discussed in the judgment of

Hamilton CJ in Lawlor v Mr Justice Feargus Flood [1999] 3 I.R. 107. That case makes clear, however, that witnesses cannot be

compelled to give evidence in private before counsel for the tribunal. Much of the private investigative phase, therefore, depends on

co-operation. The corollary of that proposition is that the Tribunal cannot be compelled to conduct a private investigative phase even

when an interested person wishes to protect his confidential or commercial interests. (see Haughey and others v Mr Justice Michael

Moriarty; Redmond v Mr Justice Feargus Flood [1999] 3 I.R. 79).

37. The form of the Terms of Reference, which I have cited, were designed to permit the Tribunal to have resort to a practical

machinery combining private and public elements. However, it is clearly left to the Tribunal as to how best to utilise these procedures.

This was best explained in the judgment of Hamilton CJ in Redmond v Mr Justice Feargus Flood, already cited, in a passage much

debated in the argument. The learned Chief Justice stated (see page 94):

“An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, is a public inquiry. The Court in the passage quoted [from

Haughey and others v Mr Justice Michael Moriarty] accepted that it was proper for a tribunal to hold preliminary investigations

in private. This would enable the Tribunal, inter alia, to check on the substance of the allegations and in this way would

protect the citizens against having groundless allegations made against them in public. But the Court was not suggesting that

the tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular

citizen. It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal

is not obliged to hold a private inquiry before proceeding with its public inquiry. The allegations made against the applicant in

this case could be false. At this stage we simply do not know. But they are grounded on a sworn affidavit. In these

circumstances it appears to this Court that the Tribunal was entitled to decide that they were of sufficient substance to

warrant investigation at a public inquiry. Indeed it would have been surprising if the Tribunal had decided otherwise.”

38. In the earlier case, Haughey v Moriarty, cited above, at page 75 and cited again by Hamilton C.J. the learned Chief Justice had

explained the role and purpose of the private phase of a Tribunal’s investigations as follows:

“If these inquiries in this investigation were to be held in public it would be in breach of fair procedures because many of the

matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on

the constitutional rights of the person or persons affected thereby. “

39. At the hearing of the present application, counsel for the Tribunal emphasised that there is no need for a prima facie or a strong

case. Counsel for the Applicant referred to the statement that “the allegation should be substantial in the sense that it warranted a

public inquiry.” He drew attention to the existence, in the Redmond case, of a sworn affidavit grounding the relevant allegations.

40. Counsel for the Tribunal quite correctly did not claim that the decision of the Tribunal was immune from Judicial Review. He

submitted that it could be challenged only if it was so unreasonable as to be irrational. It may be material to refer to certain other

passages from the judgment of the Chief Justice in Redmond. At page 87 he said;

“There is no doubt but that an inquiry by the Tribunal into the allegations made by Mr. Gogarty as contained in his affidavit

sworn on the 12th October, 1998, allied with the exceptional inquisitorial powers conferred upon such Tribunal under the Act of

1921, as amended, necessarily exposes the applicant and other citizens to the risk of having aspects of their private lives

uncovered which would otherwise remain private and to the risk of having baseless allegations made against them. This may

cause distress and injury to their reputations and may interfere with the applicant's constitutional right to privacy.

The right to privacy is however not an absolute right. The exigencies of the common good may outweigh the constitutional

right to privacy.

The exigencies of the common good require that matters considered by both Houses of the Oireachtas to be of urgent public

importance be inquired into, particularly when such inquiries are necessary to preserve the purity and integrity of public life.”

41. At page 88, he continued:

“The effect of such resolutions is undoubtedly to encroach upon the fundamental rights of the applicant in the name of the

common good but is justified by the exigencies of the common good. Such encroachment must however be only for the

proper conduct of the inquiry.

The Tribunal is obliged to conduct its inquiry and all necessary proceedings in relation thereto in accordance with fair

procedures and the principles of constitutional justice.”

42. Presumably, it was in recognition of the principles set out in these judgments that the solicitor for the Tribunal stated, in a letter

of 14th July 2004 to the Applicant’s solicitors that “the Tribunal recognises that in fairness to persons who might be affected by its

inquiries, it is not at liberty to proceed from private or preliminary investigation to a public hearing without a reasonable

justification.”

43. In all these circumstances, looking at the quality of the evidence as it stands, and bearing in mind the “light” burden necessary to

justify the granting of leave, I have come to the conclusion that the Applicant has an arguable case that the decision of the Tribunal

to proceed to public hearings in respect of the Doncaster Rovers matter, on the basis of the available evidence, was unreasonable in

the sense of irrational. I would emphasise that, upon a full hearing of the application for Judicial Review, a court might identify

additional evidence already available or take the view that there was “sufficient evidence.” My conclusion is limited to stating that

there is an arguable case that, at the date the Tribunal made its decision, it did not have sufficient evidence.

Terms of Reference: application to future benefits

44. The relevant words of paragraph (e) of the Terms of Reference are whether “any substantial payments were made directly or

indirectly to Mr Michael Lowry……”,

45. This was an expression used in a Dáil and Seanad resolution passed in 1997. It is expressed in the past tense. The question is

whether the resolution should be interpreted as requiring “payments” made to Mr Lowry in the future, looked at from that date, to be

investigated. Without making any further comment, I would say that the Applicant has established an arguable case and would grant

leave on this point. In fact, the point does not, at present, appear in the Statement of Grounds submitted in September 2004.

However, the matter was fully argued and dealt with by Herbert J. Counsel for the Tribunal drew attention to the absence of this

ground but rightly abstained from objecting to any necessary amendment. The ground relates in a fundamental way to the vires of

the Tribunal. I believe the necessary amendment should be made.

Delay

46. Counsel for the Tribunal submitted, as a separate matter, that the Applicant has been so much in delay in making his application

for Judicial Review that he has deprived himself of the right to ask the court for relief.

47. It is important, in the first instance, to identify the delay which is in issue. It is clear that Herbert J approached the matter as

involving delay commencing in January 2003, when the Tribunal, prompted by the Irish Times article, commenced to investigate the

Doncaster Rovers matter. Since I have not treated the present application as an appeal from the decision of Herbert J but rather as a

renewed application to this Court pursuant to a special provision in the rules, it is not appropriate to decide whether Herbert J was

correct but rather to look at the matter as it now presents itself.

48. As I understand it, counsel for the Tribunal does not seek to lay blame at the door of the Applicant as from January 2003. While

citing the part of the judgment of Herbert J, which does so, counsel for the Tribunal in their written submissions date the delay from

27th May 2004 and that was how I understood the matter to be argued at the hearing.

49. In my view, it would be quite wrong to attach blame for delay to the Applicant in respect of the period from January 2003. The

decision under attack is the decision to proceed to public hearings, which was not made until 27th May 2004. The Tribunal was

engaged in preliminary and private investigation from January 2003. In my view, the Applicant was entitled to take the stance that

the matter did not warrant public investigation and to act in the hope that the Tribunal would not so decide. The Applicant has

explained his concern that the Tribunal is being unduly intrusive into his private affairs. I take the judgment of Hamilton CJ in Redmond

v Mr Justice Feargus Flood and the earlier judgment in Haughey and others v Mr Justice Michael Moriarty as recognising that as a

legitimate matter of concern. If the Applicant had applied in 2003 or early 2004 to restrain the investigation, he would necessarily, by

that very act, have given widespread publicity to the matter. Furthermore, it is not at all clear that he would have succeeded in

obtaining relief at a time when the extent of the evidence available to the Tribunal had not yet been established. In response to any

application relating to the insufficiency of evidence, made during the investigative phase, the Tribunal would have argued, almost

certainly successfully, that the application was premature.

50. It is the period after 27th May 2004 which is relevant. The application is for certiorari of the decision made on that day. The

application for leave was made on 21st September 2004, less than four months after the date of the decision. This is well within the

six-month period provided for such applications by Order 84, rule 21(1) of the Rules of the Superior Courts. The rule also requires that

the application be made “promptly.” I will look at the facts, in a moment. Firstly, I would observe that it is undoubtedly the case that

the Courts have, in recent years, applied much more severe scrutiny to delayed applications for Judicial Review than formerly.

Nonetheless, matters have not reached the stage where an application made within time can be defeated in the absence of some

special factor. In my own judgment in Dekra Éireann Teoranta v. The Minister for the Environment and Local Government [2003] 2

I.R. 270, with which three other members of the Court agreed, I said at page 302:

“Nonetheless, a claim cannot normally be defeated for delay if it is commenced within the relevant period. There would need

to be some special factor such as prejudice to third parties (The State (Cussen) v. Brennan [1981] I.R. 181).”

51. Denham J delivered a separate judgment with the same result, but without making specific reference to this point.

52. The prejudice to a third party, in the case of State (Cussen) v. Brennan was singular. The prosecutor, by his delay, had allowed

the successful candidate for the post he had applied for to act on foot of his appointment by, for example, giving notice of

termination of his existing employment and instructing solicitors in the purchase of a new house. That case remains, nonetheless, a

solitary example. I remain of the view I expressed in the Dekra case, namely that an applicant for leave to apply for Judicial Review

will not normally be defeated for failure to move “promptly,” where the application is made within the permitted time. The burden

would be on the Respondent to establish the contrary.

53. In the present case, following communication of the Tribunal’s decision on 27th May, solicitors for the Applicant engaged in

correspondence with the Tribunal via its solicitor. The letters exchanged were lengthy and extremely detailed. The Applicant objected

strenuously to the decision. He complained of the intrusion into his private affairs, the publicity that would inevitably be generated,

but especially to what he argued was the lack of evidence to justify the decision. The Applicant was endeavouring to persuade the

Tribunal not to hold the public hearings. A letter of 15th June stated:

“Our client is extremely concerned that the public hearing of matters pertaining to Doncaster Rovers and the purported

connection of Mr Lowry will have the effect of greatly damaging his reputation in circumstances where no such inquiry is

merited since there is no proper evidence supporting the alleged connection.”

54. The letter proposed the “the correct thing to do is to recognise that there is no proper evidence indicating any payment to Mr

Lowry.” The Tribunal did not refuse to entertain this correspondence. On the contrary, the correspondence, while argumentative, and

at times heated, examined helpfully and in considerable detail the nature of the Tribunal’s reliance, in particular, on Mr Vaughan’s

letter and the absence of any direct evidence purporting to link Mr Lowry to the Doncaster Rovers transaction.

55. I do not think it was unreasonable for the Applicant to try to persuade the Tribunal to alter its decision and to spend upwards of

two months in endeavouring to do so. At one point, 7th July, the solicitor for the Tribunal used the expression: “if notwithstanding the

submissions you have made, the Sole Member does not alter his determination to proceed to a Public Inquiry in connection with the

Doncaster transaction……” This suggests that the Tribunal had at least an open mind. The correspondence was live from May to July,

became dormant in August and resumed in September.

56. I do not think the Applicant failed to apply “promptly.” I do not think the Tribunal has established any prejudice of the type

considered in State (Cussen) v Brennan. There is, furthermore a particular consideration in the present case which suggests that the

Applicant should not be defeated on the ground of delay. One of the grounds upon which I would grant leave to apply for Judicial

Review is that arguably the Tribunal has no power to investigate alleged payments to Mr Lowry made after the date of the Terms of

Reference. It would not be in the public interest to permit a Tribunal to proceed into the future to act on the basis of a doubtful

interpretation of the Terms of Reference.

57. For the reasons here given, I would grant leave to apply for Judicial Review by way of certiorari of the decision of the Tribunal

dated 27th May 2004 to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported

“connection” of Michael Lowry to the said purchase on the grounds that:

(a) the Terms of Reference of the Respondent do not empower it to investigate transactions taking place after the date of the

establishment of the Tribunal and giving rise to payments to Mr Michael Lowry;

(b) it was not reasonable for the Respondent to determine that there was sufficient evidence before Respondent at the time of

that decision, namely 27th May 2004, to warrant proceeding to a full public inquiry in respect of the matter of the involvement

of Mr Michael Lowry in the purchase of Doncaster Rovers Football Club.

Injunction

58. The Applicant also seeks, by way of ancillary relief, an interlocutory injunction restraining the Tribunal from conducting the

proposed public hearing pending the determination of the present application for Judicial Review. The Tribunal opposes the grant of an

injunction. In my view, the continuation of the public hearing, while the Judicial Review proceedings have not been determined, would

defeat the purpose of the Applicant’s application. He objects to an intrusive inquiry into his business affairs on the two grounds

mentioned. It seems obvious that this intrusion would take place if the Tribunal were to implement its decision of 27th May 2004.

59. Against these considerations, the Tribunal relies, inter alia, on the decision of this Court in McDonnell v Brady [2001] 3 I.R. 589.

The Court, in that case, held that the normal criteria in respect of the grant of an interlocutory injunction applied to an application of

this type. It was a material consideration in that case that the particular Oireachtas sub-committee would be unable to complete its

work prior to the dissolution of the Dáil, if the injunction were granted. The Tribunal in the present case also pleads the necessity to

complete its report, which is clearly a legitimate consideration. The governing criterion is the balance of convenience. In the

McDonnell case the concerns of the Applicant were procedural, lack of legal assistance and failure to provide fair procedures, in

particular. In my view, the balance of convenience more strongly favours the grant of an injunction in a situation where the grounds

upon which leave to apply for Judicial Review is granted would, if successful, mean that there would be no public hearing at all on the

matter in issue.

60. I would, therefore, grant an interlocutory injunction restraining the Tribunal from proceeding to hold public hearings in respect of

the Doncaster Rovers transaction until the determination of the application for Judicial Review.