Supreme Court dismisses appeal against Tribunal of Inquiry for delay in judicial review leave application.

Murray CJ.

McGuinness J.

Hardiman J.

Fennelly J.

Kearns J.

THE SUPREME COURT

[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 Kearns delivered the 12th day of May, 2005

1. I have read the judgment about to be delivered by Fennelly J in this case and agree with it to the extent that I also believe that

an arguable case has been established on one ground, namely, that the investigation of a transaction subsequent in time to the

establishment of the Tribunal may arguably be regarded as falling outside the temporal limits of its Terms of Reference.

2. However, I would be strongly of the view that this appeal should be dismissed on all other grounds, both on the grounds of delay in

bringing the leave application and because no arguable case has been made out in relation to those other grounds.

3. Delay cannot, of course, preclude the granting of leave where an arguable case is made out that the Tribunal has acted ultra vires

in embarking upon a line of inquiry which falls outside its Terms of Reference. Arguments as to whether the acquisition of Doncaster

Rovers Football Club at a time subsequent to the establishment of the Tribunal can only be seen as jurisdictional in character and

going to vires. However, the other complaints in this case concern the decision of the Tribunal to proceed to public sittings in

circumstances where it is contended that there was insufficient evidence to warrant such decision and, secondly, that the Tribunal

wrongly so decided when certain witnesses were unavailable. These are intra vires decisions of the Tribunal where delay in bringing

judicial review proceedings promptly may altogether disentitle an applicant from relief. Such I believe to be the case here.

(A) The Effects of Delay

4. The factual background in this matter is set out more fully in the judgment of Fennelly J and I will only refer to the underlying facts

of this matter to the minimum extent necessary.

5. On the 11th January, 2003, an article by Colm Keena appeared in The Irish Times under the headline “Lowry linked to £4m deal by

letter”.

6. The article suggested that “new evidence” had emerged linking Mr. Michael Lowry to a Stg. £4m property deal involving the

appellant in Britain. A letter seen by Mr. Keena concerning the planned purchase of Doncaster Rovers Football Stadium was stated in

the article to suggest that a “key adviser to Mr. O’Brien” believed the former Minister had a “total involvement” in the deal.

7. The “key adviser” was Mr. Christopher Vaughan, a Northampton based solicitor, who had written the letter in question to Mr.

Michael Lowry on the 25th September, 1998. Mr. Vaughan was then acting on behalf of Westferry Limited, a company owned by the

O’Brien family, in relation to the purchase. The text of the letter was reproduced in the article and it included the following sentence:-

“I had not appreciated your total involvement in the Doncaster Rovers transaction and I am therefore enclosing a copy of my

Completion Letter which was sent to Kevin Phelan, Paul May and Aidan Phelan on completion.”

8. The Irish Times newspaper article went on to state that:-

“Late last year a complaint was made to the police in London by representatives of Mr. O’Brien after the 1998 letter from Mr

Vaughan to Mr. Lowry was produced during negotiations between representatives of Mr. O’Brien and Mr Richardson.

The two sides were taking part in a mediation process aimed at settling a dispute over final payments associated with the

Doncaster deal. The letter was produced by Mr Richardson’s side in an attempt to increase the pressure on Mr. O’Brien. Mr

O’Brien’s side does not know how representatives of Mr Richardson came into possession of the letter.”

9. On the 13th January, 2003, the Tribunal solicitors wrote to the applicant requesting “at your earliest convenience and certainly

within the next seven days”,

(1) Details of the events which gave rise to such complaint.

(2) All matters and considerations which prompted the making of a ` complaint.

(3) The precise nature of the complaint made.

(4) The steps taken by the authorities to investigate such complaint.

(5) The outcome of such complaint or of any investigation instigated on foot of such complaint.

The Tribunal also wishes to obtain copies of all documents in your client’s power, possession or procurement regarding the

events surrounding the complaint, the complaint made, the steps taken to investigate such complaint and the outcome of

such complaint.”

10. Without going into any great detail concerning the correspondence which subsequently ensued, it is clear that the Tribunal, as

and from January, 2003, was interested in investigating this transaction, Mr. Lowry’s involvement (if any) in it and the circumstances

in which a complaint had been made to the London police arising out of the production of this letter during the mediation hearing

referred to.

11. The Tribunal pressed urgently for information both as to the source of the funds employed in the purchase of Doncaster Rovers

Football Club and for documents and statements in relation to the transaction. In this regard, the Tribunal experienced considerable

delay which was explained by the solicitors for the appellant as being referable to such matters as long absences abroad by the

appellant on business commitments, and by his father also, by the fact that Mr. O’Brien senior was now represented by a different

firm of solicitors, and also by problems relating to the provision of waivers of solicitor and client confidentiality.

12. However, on the 12th May, 2004, the Tribunal wrote a long and detailed letter to the solicitors to the appellant requesting

information in relation to the transaction and indicating that the Tribunal might determine that it should proceed to hear evidence in

relation to those matters at public sittings. The letter also advised that certain information had been made available to the Tribunal

by a Mr. Denis O’Connor, who acted as accountant to Mr. Michael Lowry. The letter went on to seek comments from the appellant in

relation to an attendance which was noted on the file of a firm of solicitors, Peter Carter-Ruck and Partners, and made by Ms. Ruth

Collard, a partner in that firm, at a meeting in London with Mr. Denis O’Connor on the 10th September, 2003, arranged by Westferry

Ltd.

13. In that attendance, Ms. Ruth Collard stated she had attended the particular meeting at which Mr. O’Connor allegedly stated that

Mr. Michael Lowry had a connection with the acquisition of Doncaster Rovers and had been present in a room with other parties when

discussions had taken place with regard to the lease. The Tribunal’s letter concluded:-

“The Tribunal intends to conclude the investigative phase of its work into this matter in very early course and, if appropriate,

to proceed to public sittings in the very near future.”

14. By further letter dated 27th May, 2004, the Tribunal stated to the appellant’s solicitors that it had heard nothing from the

appellant in relation to its requests. In the letter of the 12th May, 2004, and continued:-

“The Tribunal has now determined that it is appropriate to proceed to hear evidence at public sittings of the Tribunal pursuant

to para. (e) of its Terms of Reference in relation to the Doncaster Rovers Football Club project and the connection of Mr.

Michael Lowry with the project. The Tribunal expects to commence public sittings shortly after the commencement of the

new legal term and anticipates hearing evidence into this matter from in or about the middle of next month.”

15. Thereafter the solicitors for the applicant asked what allegations were being made against the appellant in respect of the

Doncaster Rovers transaction. They requested copies of all material furnished to the Tribunal in the course of its private investigation

into the transaction together with all notes or memoranda relating to meetings with or documents furnished by a number of named

parties since the setting up of the Tribunal. They also sought confirmation that the various named parties were available to give

evidence.

16. By letter dated 9th June, 2004, the Tribunal wrote to the solicitors for the applicant addressing these matters, stating it was not

yet in a position to confirm whether all of the named parties would be available to give evidence, but indicating that the solicitors for

the appellant would receive public sittings books in early course and the identity of the persons whom the Tribunal intended to call to

give evidence would be apparent from those books.

17. It is clear beyond question that the appellant’s solicitors regarded the 27th May, 2004, as the effective date of the decision of

the Tribunal to hold public sittings, because by letter dated 10th June, 2004, the appellant’s solicitors wrote in the following terms to

the Tribunal:-

“We are extremely concerned at the decision of the Tribunal to proceed to public hearings on a matter which quite clearly

relates to the private business activities of our client and which has no connection with the Terms of Reference passed by

resolution of Dáil Éireann and Seanad Éireann on 11th September and 18th September, 1997, respectively… we are also of the

strong opinion that the Tribunals actions in proceeding to investigate these private matters is a breach of the rights that our

client enjoys under the European Convention on Human Rights as implemented into Irish Law by the European Convention on

Human Rights Act, 2003. Our client reserves his right to seek to challenge the decision of the Tribunal to commence public

hearings on this matter on the grounds that it is ultra vires its Terms of Reference.”

18. It is not necessary to further review the lengthy and argumentative correspondence which continued between the solicitors for

the applicant and the Tribunal. In my view, the learned trial judge correctly identified the 27th May, 2004, as the date upon which

the Tribunal clearly indicated its intention to commence public hearings into the Doncaster Rovers transaction. Quite apart from the

decision to go public, the grounds for any challenge on the basis that the right of the Tribunal to carry out this particular

investigation was ultra vires went back much beyond that, and probably as far back as January, 2003. In relation to the other

grounds of complaint by the appellant, the same were all fully set out in letters dated 10th and 15th June, 2004 and were repeated in

letters of 9th and 26th July, 2004. No alteration of the Tribunal’s decision was forthcoming but still no application to court was made.

Eventually an Opening Statement was delivered by the Tribunal on the 15th September, 2004 as this particular module finally got

under way. Only then, on the 17th September, 2004, was a Notice of Motion to court issued and the ensuing leave application began

on the 21st September, 2004.

19. Order 84 or 21 (1) of the Rules of the Superior Courts, 1986, provides:-

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the

date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court

considers that there is good reason for extending the period within which the application shall be made.”

20. In this case, particularly having regard to the long involvement of the appellant with the Tribunal, both in this and in previous

hearings, and having regard further to the clear lines of dispute which had emerged between the appellant and the Tribunal over many

months, if not indeed years, up to the 27th May, 2004, there was the clearest need to move speedily and expeditiously on the vires

point when it became apparent in 2003 and on the remaining points as soon as was possible after the 27th May, 2004. The

requirement under the Rules to move “promptly” should never be taken as meaning that the outer limits of promptitude are co-

terminous with the last date of any period of time specified in the Rules for moving judicial review applications.

21. That leave can be refused where there has been a failure to move promptly, even though the time period has not expired, was

recognised in State (Cussen) v. Brennan [1981] I.R. 181. In de Roiste v Minister for Defence [2001] 1 I.R. 190, Fennelly J , in

stressing that an applicant is bound to apply promptly, stated (at 221):-

“The judicial review time limit is not a limitation period. Prompt pursuit of a remedy is, however, a requirement of the judicial

review remedy”

22. Similarly, in considering the identical wording in the English Rules, the Court of Appeal in R v Stratford-on-Avon D.C, ex parte

Jackson [1985] 1 W.L.R. 1319, per Ackner L.J. (at 1322-3) observed:-

“The essential requirement of the rule is that the application must be made ‘promptly’. The fact that an application has been

made within three months from the date when the grounds for the application first arose does not necessarily mean that it

has been made promptly. Thus there can well be cases where a court may have to consider whether or not to extend the

time for making the application, even though the application has been made within the three month period”

23. In O’Flynn v. Mid Western Health Board [1991]2 I.R. 223, this Court deprecated eleventh hour attempts to render nugatory the

efforts of administrative bodies. In that case, the applicants had waited for eight months before applying for judicial review of a

decision to establish a Committee investigating certain complaints against them.

24. Needless to remark, the particular circumstances of an individual case will in many instances highlight the obvious necessity of

moving promptly and expeditiously to challenge decisions by way of judicial review. Sometimes it is also a statutory requirement.

Modern legislation shows an increasing impatience with endless legal challenges to decisions of administrative bodies and ministerial

decisions, and many recent statutes provide strict cut-off periods for challenges of this nature, including, for example, the Irish

Takeover Panel Act, 1997 (seven days), the Illegal Immigrants (Trafficking) Act, 2000 (fourteen days), Compulsory Purchase Orders

confirmed by the Minister for the Environment under s. 78(1) of the Housing Act, 1966 (three weeks), decisions of a planning

authority or an Bord Pleanala (eight weeks), orders of the Minister for the Environment and Local Government made under s.49 or s.51

of the Roads Acts 1993-1998 (two months) and decisions of the E.P.A. under the Environmental Protection Agency Act, 1992 to grant

or refuse licenses (two months). The list is not exhaustive, but these examples reflect an increasing concern on the part of the

legislature that legal challenges must be brought and disposed of promptly if huge delays, costs and expense are to be avoided across

a whole range of projects and activities. I can see no lesser requirement of urgency where a Tribunal is charged by the Oireachtas

with an investigation as a matter of “urgent public importance”.

25. Given that all the difficulties of which complaint is now made, including the allegedly inadequate evidence and the almost certain

non-availability of certain witnesses, were well known to the appellant and his advisers for many months, the failure to move this

application until the 22nd September, 2004, several days into the hearing of this particular module, seems to me inexcusable. A

Tribunal is not like a small rowing boat which can be whistled back to harbour from the pier’s end. It is more like an aircraft carrier

which spends months enlisting crew and laying in provisions in preparation for departure on an appointed day. Having signalled that

departure date well in advance, a challenge to the propriety of the journey which is deferred until the journey is under way requires

some considerable justification in my opinion. The main explanation tendered for delay however is that the appellant subjectively

believed that an adverse public reaction would follow any early attempt by him to bring proceedings which might have the incidental

effect of preventing certain information entering the public realm. I must confess I find myself totally unimpressed by this argument,

not least because precisely the same reaction can attend a late, as well as an early, application to court. That excuse, if such it be,

has to be placed in the balance with the significant cost and time expended by the Tribunal, and presumably other parties also, in

preparing for this particular module. When these various considerations are placed in the balance, the decision in my view must firmly

come down against condoning or permitting such delay and in favour of refusing leave for that reason.

26. While the appellant also raised an issue about the propriety of a meeting held in London on the 9th September, 2004, between

counsel for the Tribunal and Mr. Vaughan, arguing that such a meeting should not have taken place as it was not authorised under

the Terms of Reference having regard to the fact that the Sole Member was not present, nothing seems to me to turn on this

complaint, whether the meeting should, or should not, have taken place in the manner in which it did. It cannot affect the issue as to

whether or not there was excessive delay in bringing this application, or indeed the allegation that there was inadequate evidence to

justify the decision to proceed to public sittings. It is in my opinion a spent issue on any view of the matter.

(b) Sufficient Evidence

27. It is submitted on behalf of the appellant that there is no sufficient evidence to justify a decision on the part of the Tribunal to

proceed to a public hearing in relation to the Doncaster Rovers transaction and that the Tribunal is accordingly precluded from so

proceeding.

28. However, once some evidence is available to the Tribunal, it seems to me that the decision to proceed to public sittings is then

intra vires and a matter for the Tribunal and that the court should in those circumstances be extremely slow to interfere with the

Tribunal’s own assessment that there is a sufficiency of evidence to warrant going public.

29. It is perhaps appropriate to commence any discussion of this theme by referring to the Terms of Reference which require the

Tribunal:-

“B(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.”

30. It is important in this context to carefully consider what the Oireachtas may have meant when using the word “evidence”. Is it to

be taken as meaning “information indicating whether a belief or proposition is true or valid” as the word is so defined in the Concise

Oxford English Dictionary (11th Ed). Alternatively, is the word “evidence” to be taken as meaning only “evidence admissible in a court

of law”, a specifically legal meaning which may also be ascribed to the word (and one which also appears in the Oxford Dictionary).

31. This distinction seems to me to be at the nub of this part of the application.

32. It seems to me that when this word is used in the context of a Tribunal of Inquiry, the word should be taken as meaning more

than just evidence which may be admissible in a court of law. I would favour the broader of the two interpretations as deriving from

the inquisitorial and investigative nature of the Tribunal process itself, so that the word ‘evidence’ should be taken not merely as

meaning ‘admissible evidence’ but as also meaning and including ‘relevant information’ in the sense of material which provides a

realistic and reasonable basis for proceeding to public sittings.

33. That a tribunal can adopt less stringent tests than a court in deciding what material may be admissible is well established, subject

to the requirement of fair procedures. As Henchy J noted in Kiely v Minister for Social Welfare [1977] I.R. 267 (at 281):-

“This Court has held, in cases such as In re Haughey, that Article 40, s.3 of the Constitution implies a guarantee to the citizen

of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial

functions are frequently allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules

of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or

a fair result.”

34. These observations of Henchy J were cited with approval recently by this court in the majority judgment delivered by Geoghegan

J in O’Callaghan v Mahon Tribunal (Unreported, 9th March, 2005). I allude to the passage, however, because it neatly encapsulates

the fact that there are many kinds of material or ‘evidence’ to which a tribunal may have regard when discharging its remit, subject

always to the requirements of fair procedures.

35. It would , in my view, be incorrect to assess the Tribunal’s decision to proceed to public sittings as analogous to that of a District

Judge in former times when he decided that the material in a Book of Evidence was sufficient to warrant a return for trial of a criminal

accused, or, in the case of the Director of Public Prosecutions, that the evidence is sufficient and sufficiently reliable to warrant

charging a suspect with a particular offence. Any such approach to “evidence” in the context of a Tribunal decision to move from

private session to public sittings, requiring in effect the establishment of a prima facie case on evidence only admissible in a court of

law, would, in my opinion, be misconceived. This is quite simply because Tribunals of Inquiry operate in a different way from courts, as

indeed was noted by the Salmon Commission on Tribunals of Inquiry (1966) (para.30):-

“There are important distinctions between inquisitorial procedure and the procedure in an ordinary civil or criminal case. It is

inherent in the inquisitorial procedure that there is no lis. The Tribunal directs the inquiry and the witnesses are necessarily

the Tribunal’s witnesses. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining issues to

be tried, no charges, indictments or depositions. The inquiry may take a fresh turn at any moment.”

36. In similar vein, Lord Diplock stated as follows in Mahon v. New Zealand [1984] 3 All ER 201:-

“An investigative inquiry into facts by a Tribunal of inquiry is in marked contrast to ordinary civil litigation, the conduct of

which constitutes the regular task of High Court judges, in which their experience in the methodology of decision making on

factual matters has been gained. Where facts are in dispute in civil litigation conducted under the Common Law system of

procedure, the judge has to decide where, on the balance of probabilities, he thinks that the truth lies as between the

evidence which the parties to the litigation have thought it to be in their respective interests to adduce before him. He has no

right to travel outside that evidence on an independent search on his own part for the truth; and, if the parties evidence is so

inconclusive as to leave him uncertain where the balance between the conflicting probabilities lies, he must decide the case by

applying the rules as to the onus of proof in civil litigation. In an investigative inquiry, on the other hand, into a disaster or

accident of which the Commissioner who conducts it is required, as the judge was in the instant case, to inquire into and to

report on ‘the cause or causes of the crash’, it is inevitable, particularly if there are neither survivors nor eyewitnesses of the

crash, that the emergence of facts, and the realisation of what part, if any, they played in causing the disaster and of their

relative importance, should be more elusive and less orderly, as one unanticipated piece of evidence suggests to the

Commissioner, or to particular parties represented at the inquiry, some new line of investigation that it may be worthwhile to

explore, whether, in the result, the exploration when pursued leads only to a dead end or, as occurred in one particular

instance in the present case, it leads to the discovery of other facts which throw a fresh light on what actually happened and

why it happened.”

37. Similar views were expressed by Denham, J in Lawlor v Flood [1999] 3 I.R. 107 when she stated (at 137):-

“The difference between proceedings in court (and being a party thereto) and a Tribunal of Inquiry to which a person is called

to give evidence is important. The Tribunal hearing is not a criminal trial nor is it even a civil trial, nor is the person a party.

The hearing is an inquiry to which the person is a witness.”

38. Any suggestion that some sort of prima facie case had to be made out prior to public sittings of a tribunal was expressly rejected

by this court in Redmond v Flood [1999] 3 I.R. 79. It had been submitted in that case, in the light of the earlier decision of this court

in Haughey v Moriarty, that a Tribunal should only proceed to a public hearing if there was a prima facie case or a strong case

against a particular individual. In rejecting this proposition, Hamilton CJ stated (at p.95):-

“… The court (in Haughey v. Moriarty) was not suggesting that the Tribunal should proceed to a public inquiry only if there

was a prima facia case or a strong case against a particular citizen. It was suggesting that the allegations 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.”

39. I believe a court should only intervene to set aside a Tribunal decision to proceed to public sittings if there is absolutely no

evidence to support the Tribunal’s decision. Appropriate deference should be given to decisions of the Tribunal, not least because it is

well settled, and indeed was so stated, by Hamilton CJ in Haughey v Moriarty [1999] 3 I.R.1 at 79 that:-

“The interpretation of the Terms of Reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself”

40. The view that the requirement is that there be “absolutely no evidence” before a court should intervene to quash a tribunal

decision to proceed to public sittings receives support from the following passage in the judgment of Morris, P in Bailey v Flood (High

Court, unreported, 6th March, 2000), a decision upheld by this court, in which, at p.23 of his judgment he stated:-

“…I think it clear that if the sole member, on a preliminary investigation found sufficient evidence in relation to even one issue,

then he should proceed to public sittings. The clause is directed towards nipping a Tribunal in the bud, should it be determined

that there is absolutely no evidence to support any of its inquiries. Presumably, the purpose is to prevent the needless

expenditure of public monies that would accompany public sittings of a Tribunal that has nothing into which to inquire.”

(emphasis added)

41. In the present case, it cannot be said that there is “absolutely no evidence” (in either the sense of admissible evidence or in the

wider sense I have found the word ‘evidence’ in the context of the Terms of Reference to mean). The full detail of the available

information is summarised in the written submissions filed on behalf of the respondent to this Court and made available by the

Tribunal, as per its letter dated 7th July, 2004, to the appellant’s solicitors, and consists of the following:-

“(1) The fact the Mr. Vaughan, the appellant’s solicitor, formed the view in the course of a meeting with Mr. Lowry that Mr.

Lowry had a ‘total involvement’ in the DRFC transaction, and was sufficiently certain of Mr. Lowry’s involvement to write to

him in relation to the transaction, furnish him with documentation pertaining to it, and provide him with access to confidential

advice as to how the purchaser ought to divest itself of its assets;

(2)The fact that, whatever the circumstances in which Mr. Vaughan formed that view, no one disabused him of the

impression that Mr. Lowry was involved in the transaction, with the latter undertaking on 25th September, 1998, to arrange a

meeting with Aidan Phelan in relation to the matter.

(3) Mr. Vaughan had himself conceded that it seemed unusual that he believed that Mr. Lowry was involved. He did not

however appear to have written to correct the impression recorded in his letter to Mr. Lowry dated 25th September, 1998.

(4) The fact that Denis O’Connor, Mr. Lowry’s accountant, subsequently involved himself in mediation hearings relating to the

agreement. Mr. O’Connor was described by the appellants solicitor as representing neither Westferry nor the vendor, and

indeed was permitted to continue to act in relation to the mediation, although no one was entirely certain what his role was or

why he had become involved; and

(5) The fact that in the course of that involvement, Mr. O’Connor appears to have advised another solicitor that Mr. Lowry did

indeed have a connection with the DRFC transaction and that he had been present when discussions took place between Mr.

Phelan and Mr. Richardson regarding the lease on the Doncaster premises.

42. However, even if the only information or evidence available to the Tribunal consisted of the letter written by Mr. O’Brien’s solicitor,

Mr. Vaughan, to Mr. Lowry in which he referred to Mr. Lowry’s “total involvement” with the Doncaster Rovers transaction, that, in my

view, would, in the case of this particular decision, be sufficient to satisfy the requirements as to reasonableness which attach to a

decision maker pursuant to O’Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and The State (Keegan) v. Stardust Victims Compensation

Tribunal [1986] I.R. 642.

43. Insofar as it was argued that such an approach opens the door to a citizen having his private affairs examined on the basis of

rumours rather than solid evidence, it is important to remember that the Salmon Commission stressed that lapses or even ‘rumoured’

lapses of accepted standards of public administration may on occasion require a tribunal-type investigation to allay concerns:-

“The history of inquiries to which reference has been made shows that from time to time cases arise concerning rumoured

instances of lapses in accepted standards of public administration and other matters causing public concern which cannot be

dealt with by ordinary civil or criminal processes but which require investigation in order to allay public anxiety” (para.22)

44. As Morris P. pointed out in his judgment in Bailey v. Flood (at p.33):-

“The very reason for the establishment of such a Tribunal is that urgent matters causing grave public disquiet need to be

investigated in order either to root out the wrongdoing or to expose the concerns as misplaced. If a Tribunal is to accomplish

its purpose on either count it is profoundly important that it be seen to conduct a thorough, methodical inquiry in which no

special treatment is accorded to anyone and where matters are shielded from public scrutiny and criticism only where

absolutely necessary, such as where to do otherwise would jeopardise the lives of individuals. The public concern and disquiet

must be met either by establishing facts which give rise to the concern or disquiet or alternatively establish that the fears or

cause for concern and disquiet were groundless.”

45. Reverting finally to some particulars of these grounds of complaint, I would wish to add some further comment.

46. While Mr. Vaughan is said not to be available to the Tribunal, the appellant clearly would be available to answer such questions as

may be put to him concerning a letter written by his own solicitor. So too is Mr. O’Brien snr., Mr Lowry and Mr Denis O’Connor.

47. Obviously evidence may be adduced suggesting that Mr. Lowry had no role whatsoever to play in the particular transaction.

However, that is not the point. The Tribunal has determined on the basis of credible information that it is a matter which ought to be

investigated. The appellant’s case appears to be that because he denies the suggested involvement of Mr. Lowry, as indeed Mr.

Lowry does himself, and because Mr. Vaughan subsequently furnished an explanation in relation to his letter and the suggestion that

Mr. Lowry was involved, that there is, therefore, nothing to go to public hearing. That also misses the point. The decision of the

Tribunal to hold public hearings on this question is founded on relevant information which provides a rational basis for the decision to

hold public sittings.

48. I also believe that the further complaints of the appellant in relation to the non-availability of Christopher Vaughan and Kevin

Phelan are misplaced. The appellant contends that the evidence of Christopher Vaughan and Kevin Phelan is essential in order to

enable the Tribunal to ascertain “the full picture” in relation to the Doncaster Rovers transaction. I am left in a state of uncertainty

as to precisely why Mr. O’Brien’s former solicitor, Mr. Vaughan, is not available to assist the Tribunal, but be that as it may, I agree

with the trial judge who, in relation to this argument, stated that the absence of Mr. Vaughan and Mr. Phelan “does not …establish

even an arguable case for halting all public hearings of the Tribunal in relation to the DRFCL transaction.”

49. Herbert J. went on to state (at p 45):-

“I am not satisfied that evidence cannot be given at public sittings of the Tribunal in relation to the DRFCL transaction by Mr.

Denis O’Brien senior, Mr. Aidan Phelan, Mr. John Ryall, Mr. Michael Lowry and the applicant in the absence of evidence from Mr.

Christopher Vaughan and Mr. Kevin Phelan without that being unfair to the applicant.

If Mr. Christopher Vaughan does not give evidence, then, in particular having regard to the letter from Mr. Christopher

Vaughan to the Tribunal dated 6th March, 2003, the respondent will have to decide what weight (if any) he can give to the

letter of 25th September, 1998, in making his report to the Clerk of the Dáil. However, the fact that this issue might have to

be addressed by the respondent is no basis for seeking an order of this Court halting all public sittings of the Tribunal inquiry

into the DRFCL transaction. This is especially so as the Tribunal is on notice of matters altogether separate from and

unconnected with this letter of the 25th September, 1998, such as the Ruth Collard attendance of 10th September, 2002, in

which she records Mr. Denis O’Connor, accountant to Mr. Michael Lowry, as stating that Mr. Lowry did have a connection with

the DRFCL transaction. It might well be that the respondent, having heard evidence from witnesses other than Mr. Christopher

Vaughan and Mr. Kevin Phelan would be in a position to conclude that Mr. Christopher Vaughan was, as he now insists he was,

wholly incorrect in the belief which he expressed in his letter of 25th September, 1998, to Mr. Michael Lowry, that Mr. Lowry

was totally involved in the DRFCL transaction.”

50. I agree entirely with this passage in the judgment.

51. It is quite clear in the present case that the Tribunal has taken its decision to proceed to public sittings while being fully

cognisant of the likely unavailability of Messrs. Vaughan and Phelan and has given its reasons for doing so in its letter of the 7th July,

2004. Once it decides to so proceed, it is, in my view, for the Tribunal to set down the procedures for any such hearing including,

inter alia, the admissibility of evidence. In preparing his report, it must be presumed that the Sole Member will only take account of

evidence given to him at public hearings. I cannot see how the non-availability of these two witnesses in any way precludes the

Tribunal from proceeding to public hearings.

52. I would refuse the leave application on these particular grounds.

(C) Terms of Reference - Temporal Dimension

53. As already noted, the Tribunal was appointed by Executive Order dated 26th September, 1997, to enquire urgently into and report

and make findings on definite matters of urgent public importance as outlined in resolutions passed by Dáil Éireann on the 11th of

September, 1997, and by Seanad Éireann on the 18th of September, 1997.

54. It is not a matter of dispute that proposals concerning the purchase of Doncaster Rovers were only first put forward in 1998.

Doncaster Rovers was subsequently purchased in August, 1998, by Westferry Ltd, a company which is wholly owned by the

appellant’s family trust. This trust was settled by the appellant as a discretionary trust on the 16th of September, 1997, and the

beneficiaries of the trust have at all times been the appellant or members of his immediate family. The trustees are Wallbrook Trustees

(IOM) Ltd, a division of Deloitte and Touche. The appellant obtained a loan facility in his own name from Woodchester Credit Lyonnais

Bank on 23rd April, 1998, in the sum of Stg. £700,000. This funded the deposit monies for the Doncaster purchase. Westferry Ltd.

obtained a loan facility from Anglo Irish Bank for Stg. £3,385,000 to fund the balance of the purchase price of shares in Doncaster

Rovers. The appellant became guarantor for this loan on the 13th August, 1998, and the transfer of title of the shares in Doncaster

Rovers to Westferry Ltd. took place on the 18th August, 1998.

55. In this portion of the appeal, the appellant raises two issues:

(a) Whether it is appropriate to engage in an investigation of the Doncaster Rovers transaction where it is alleged that the

Tribunal is not investigating any “payment”, however broadly that term is defined.

(b) Whether the Doncaster Rovers transaction, being an event which occurred after the establishment of the Tribunal in

September, 1997, can fall within its remit.

56. It appears clear from the Tribunal’s Opening Statement in relation to this particular module made on the 15th September, 2004,

that its decision to investigate the Doncaster Rovers transaction arises from a concern that Mr. Lowry may have had some

involvement in the transaction.

57. Before considering the two issues raised by the appellant, it is perhaps appropriate to set out that portion of the Terms of

Reference which underpin this line of inquiry. The Terms require the Tribunal to “enquire urgently into…:-

(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to

discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any

connected person to Mr. Michael Lowry within the meaning of the Ethics in Public Office Act, 1995, or discharged at his

discretion), 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 to potential to influence the

discharge of such office.

(f) The source of any money held in the Bank of Ireland, Thurles Branch, Thurles, Co. Tipperary, the Allied Irish Bank in the

Channel Island, the Allied Irish Bank, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Ltd. in the Isle of Man, the Irish

Permanent Building Society, Patrick Street Branch, Cork or Rea Brothers (Isle of Man) Ltd, in accounts for the benefit or in the

name of Mr. Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by

the Tribunal to be for the benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within

the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by

Mr. Lowry.

(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.

(h) Whether any payment was made from money held in any of the bank accounts referred to at (f) to any person who

holds or has held public office.

(i) Whether any holder of public office for whose benefit money was held in any of the accounts referred to at (b) or (f) did

any act, in the course of his/her public office, to confer any benefit on any person who was the source of that money, or

directed any person to do such an act.” (emphasis added)

58. It was accepted during the hearing of the application in the High Court that Mr. Michael Lowry was a member of Dáil Éireann in

1998, but that he ceased to hold Ministerial office in 1996. In the course of the hearing before this Court, counsel on behalf of the

appellant did not pursue the argument that Mr. Michael Lowry did not hold “public office” within the meanings of the Terms of

Reference at the time when the appellant acquired his interest in Doncaster Rovers.

59. The appellant submits however that the Tribunal is acting ultra vires its Terms of Reference because it is merely investigating

whether Mr. Michael Lowry has a “connection” to the Doncaster Rovers transaction, as distinct from whether any substantial payment

or benefit in kind was received by Mr. Lowry.

60. However, it is well settled and was so stated by Hamilton C.J. in Haughey v. Moriarty [1999] 3 I.R.1 (at 79) that:-

“The interpretation of the Terms of Reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself.”

61. To stultify the Tribunal in the performance of its functions by precluding it from enquiring into any matter until it had first

determined whether or not a payment had been made would effectively deprive the Tribunal of its ability to perform its functions.

Ultimately it must focus on the issue as to whether or not Mr. Lowry received a payment or benefit in kind. At this stage, and based

upon the information and material already in its possession, the Tribunal is performing its investigative role with a view to establishing

the facts, including the possibility of any such payment. This ground of complaint is manifestly unfounded in my view.

62. I have however come to the view that an arguable case can be made that this leg of the Tribunal’s inquiry falls outside the Terms

of Reference because the transaction in question post-dated the establishment of the Tribunal.

63. The underlined portions of the Terms of Reference cited above do, on the face of it, and taking the words in their ordinary sense

and meaning, refer to past events.

64. In dealing with this issue, the learned trial judge stated (at p. 22):-

“In my judgment there is nothing in language of para. (e) which would constrain the court to infer that the intention of the

Houses of the Oireachtas was to limit the enquiry by the tribunal to some period prior to 18th September, 1997, the date of

the resolution by Seanad Éireann. I do not believe that the recital in the second paragraph of the Terms of Reference referring

to, ‘serious public concern arising from the report of the Tribunal of Inquiry (Dunne’s payments)’, which established that

irregular payments were made to certain persons who were members of the Houses of the Oireachtas between 1st January,

1986 and 31st December, 1996, is to be read as in any manner limiting the time frame of the inquiry to be undertaken by the

Tribunal to this period. This second paragraph does no more than furnish the historical basis upon which the Houses of the

Oireachtas deemed it necessary to establish the present Tribunal of Inquiry. In my judgment, the use of the past tense in the

phrase, ‘during any period when he held public office’, does not limit the inquiry to the period prior to the passing of the

resolution establishing the Tribunal by Seanad Éireann on 18th September, 1997. The fact that by its Terms of Reference the

Tribunal is required, ‘to enquire urgently into’ the matters indicated and to complete it’s inquiry ‘in as economical a manner as

possible and at the earliest date consistent with a fair examination of the matters referred to it’, does not support the

argument that it cannot be concerned with events such as the Doncaster Rovers transaction occurring after 18th September,

1997.

In my judgment, a right of the respondent to investigate is, in the case of Mr. Lowry, limited only by reference to those

periods when Mr. Michael Lowry held ‘public office’ as above defined and provided, ‘sufficient evidence exists’ as this phrase is

defined by the Supreme Court in the case of Redmond v Flood [1999] 3 I.R. 79 at 95, to justify public inquiry by the Tribunal

subject to the right of the Houses of the Oireachtas by further resolutions to fix a date within which the Tribunal must report.

For this reason, I reject the submission of the applicant that the inquiry by the Tribunal is so unlimited in scope and time as to

amount to unreasonable oppression of the applicant and a breach of his constitutional right to fair procedures. There is clearly

no question of the Tribunal being able to investigate the business affairs of the applicant or of Mr. Michael Lowry ‘forever’ as

was suggested by counsel for the applicant.”

65. It goes without saying that a “pay-off” for a political favour rendered at one point in time may take place months, or even years,

later. However, in the present case, no evidence of any sort whatsoever exists to suggest that the Doncaster transaction existed in

any shape or form at the time the Tribunal was set up. Indeed the evidence is all the other way, that the proposal to purchase was

first made in 1998. The transaction in no way straddles the date upon which the Tribunal was appointed and its Terms of Reference

fixed. Every part of it post-dates that event.

66. The Terms of Reference clearly adopt the past tense in setting out the scope of the Tribunal’s inquiry, as I have emphasised

above. To adopt a construction which permits or mandates the Tribunal to consider events or possible payments made subsequent to

the establishment of the Tribunal and the fixing of its Terms of Reference may arguably be seen as going beyond the temporal

limitations of the Terms of Reference. Arguably also, any other interpretation might impose upon the Tribunal a task which had no

temporal limitation and thus no completion date. Thus, to take the most extreme example, the Tribunal might be required to continue

and maintain its investigations right up to the present and beyond. If it does not end at some specified point, one might reasonable

ask: where does it end? An open-ended agenda might require that the Tribunal, if it had a definite line of inquiry suggesting that a

payment be made at some future time, remain in existence to monitor that situation through to its conclusion.

67. Such a possibility may arguably be seen as inconsistent with those Terms of Reference which require the Tribunal “to inquire

urgently into” the matters indicated and to complete its inquiry “in as economical a manner as possible and at the earliest date

consistent with the fair examination of the matters referred to it”.

68. For these reasons I believe an arguable case has been made out that this module falls outside the Terms of Reference given to

the Tribunal.

69. That said, it is perfectly obvious that this point was available to be taken by the appellant and his legal advisors from the very

outset. The Tribunal first signalled its interest in inquiring into this transaction in early 2003. The failure thereafter to seek the judicial

review remedy on this point until the 22nd September, 2004, has in no respect been justified. No application to court was made until

months of preparation had been undertaken by the Tribunal, a date fixed for its public sessions and an opening statement made on

the 15th of September, 2004. Quite clearly, considerable costs must have been incurred which have been, or may now be, thrown

away as a result of this belated application .However, I am bearing in mind that the Sole Member, regardless of the outcome of this

application, does have powers to address this aspect of the case as he sees fit at a later stage.

70. Having regard to the overriding requirement that the Tribunal proceed to complete its work with the minimum of further delay, and

having regard also to the fact that leave is being granted on what is essentially a net point, I would believe that the full hearing of

this matter should be heard and determined by the High Court as a matter of considerable urgency and within a matter of weeks, not

least because the granting of leave on this ground effectively precludes the Tribunal from continuing its work on this module until the

particular issue is resolved. No matter how one looks at it, and bearing in mind there may be a further appeal to this court from any

decision of the High Court, a delay of effectively a full legal year in the Tribunal’s work is now inevitable.

(D) The Appropriate Test in an Application for Judicial Review inter partes

71. In the decision in G v. the Director of Public Prosecutions and Judge Kirby [1994] 1 I.R. 374 the Supreme Court (per Finlay CJ. At

p.378 and per Denham J. at p.382) defined the burden of proof on an applicant for leave to seek judicial review as requiring that such

applicant establish “that the facts averred in the (verifying) affidavit would be sufficient, if proved, to support a statable ground for

the relief sought by way of judicial review (and) that on those facts an arguable case in law can be made that the applicant is

entitled to the relief which he seeks.”

72. In the present case both sides were heard in the course of a lengthy hearing before the learned trial judge which went on for 9

days. In his judgment, however, the learned trial judge held that there was no inter partes hearing within the strict meaning of that

term in respect of the leave application in this case. He did not accede to the application by counsel for the respondent that the

application for leave to seek judicial review should be deemed to be a hearing inter partes. As he states (at p.5 of his judgment):-

“Over nine days of extended sittings the court undoubtedly had the benefit of detailed inter partes arguments on all aspects of

the leave application. However, this was in the context of the application for a stay of further public proceedings by the

Tribunal in respect of the DRFCL transaction pursuant to the provisions of Order 84 R. 20 (7) of the Rules of the Superior

Courts or, alternatively, for injunctive relief to the same effect pending the hearing and determination of the application for

judicial review.”

73. The learned trial judge went on to note that:-

“In the case of the Garda Representative Association v. Ireland (unreported) December 18th, 1987, Supreme Court, it was

held that the principles set out in the case of Campus Oil Ltd. v. The Minister for Industry and Energy (No. 2) [1983] I.R. 88,

as governing the grant of interlocutory injunctions applied also where such injunctions were sought during the course of

applications for judicial review. It was accepted on all sides during the course of argument in the instant application, that for

the purpose of determining whether the applicant had raised a fair, substantial, bona fida question for determination, the

respondent and the notice party would necessarily have to address the same material and issues as would be relevant to

considering whether the facts averred, if proven, would support a statable ground for the relief sought and, that on those

facts, the applicant could make an arguable case in law for that relief, without having to establish that the tests were the

same or did not differ in any material respect.

In these circumstances, though counsel for the respondent opened the decisions in Mass Energy Ltd. v. Birmingham City

Council [1994] ENV., L.R. 289; R. v. Cotswoold District Council, Ex-parte Barrington [1998] 75 P and C.R. 515; R(Portland Port

Ltd.) v. Weymouth and Portland Borough Council [2001] EWHC Admin. 1171; R. v. Derbyshire County Council ex-parte Woods

[1997] J.P. L. 958 and Gorman v. The Minister for the Environment [2001]1 I.R. 306, the question of whether the burden on

the applicant at this leave stage in the instant case was to establish not merely an arguable case, but a case that was likely

to succeed or to show a reasonably good chance of success if given leave to seek judicial review, was not fully argued before

me.”

74. In those circumstances, the learned trial judge decided it would be “unjust and unfair” for the court to impose any higher test on

the applicant for leave to seek judicial review than the test laid down in “G” v. The Director of Public Prosecutions and Judge Kirby

[1994] 1 I.R. 374.

75. If the matter was not fully argued or determined in the court below, as the learned trial judge has so found, what follows

hereafter must of necessity be obiter only.

76. For my part, I would be strongly of the view that in those instances where an application for leave to seek judicial review is

required to be made on notice to the respondent, or where the judge having charge of the matter decides that the same should be

made on notice to the respondent, and where on foot of such provision or direction a respondent is heard on the application, it is

appropriate and desirable that the threshold to be surmounted by the applicant should be higher than when the application is made

ex-parte.

77. As Glidewell J. stated in Mass Energy Ltd. v. Birmingham C.C. [1994] Env. L.R. 298:-

“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 of 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 Energies case is not merely

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

78. As Kelly J. stated in Gorman v. The Minister for the Environment [2001] 1 I.R. 306 (at. 310):-

“That approach appears… to make a great deal of sense and to make for a more economical use of court time than the

application of the substantially lower standard of arguable case to a hearing of this sort.”

79. As Keene J. stated in R. v. Cotswold District Council ex-parte Barrington [1998] 75 P and C.R. 515:-

“…Where the court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes

hearing, the court is in a better position to judge the merits then as usual on a leave application. It may then require (a

claimant) to show a reasonably good chance of success if he is to be given leave.

In the present case this court has heard arguments stretching over one and a half days from all three parties, each

represented by leading counsel and with substantial skeleton arguments from all three parties, and with all the documentation

which those parties have been able to assemble over the period of almost 4 months since this application was lodged. This is

very different, therefore, from the ordinary 20 minutes ex-parte leave hearing.”

80. Some support for this approach may also be found in the decision of O’Caoimh J. in D.C. v. D.P.P. (unreported, High Court, 18th

May, 2004) where the approach advocated by Kelly J. in O’Gorman was applied, O’Caoimh J. holding that leave should be granted

“only if the applicants case is not merely arguable but is strong, that is to say, likely to succeed.”

81. As already indicated, I cannot really see any good reason why this issue was not tackled head-on when both parties were before

the High Court and where all points canvassed on this appeal were fully argued and debated. In fact, it would be fair to say that,

having regard to the length of time which the hearing took, they must have been debated in far greater detail than they were before

this Court. This is in no way intended as a criticism of the learned High Court judge, whose judgment in this case is otherwise

comprehensive and carefully reasoned.

82. The Tribunals of Inquiry (Evidence) Acts, 1921 - 2002 not only provide Tribunals with certain powers but acknowledge in express

terms the urgency which attaches to the process in which Tribunals of Inquiry are engaged. Section 1(1) provides:-

“Where it has been resolved… by both Houses of Parliament that it is expedient that a Tribunal be established for inquiring into

a definite matter described in the resolution as of urgent public importance, and in pursuance of the resolution a Tribunal is

appointed… the instrument by which the Tribunal is appointed may provide that this Act shall apply, and in such case the

Tribunal shall have all such powers, rights and privileges as are vested in the High Court…”(emphasis added)

83. Having regard to cumbersome nature of Tribunals of Inquiry and the obvious need, as expressly recognised in the 1921 Act, that

they should discharge responsibilities in matters of “urgent public importance”, it seems to me highly desirable that:-

(a) Any challenge to the powers or decisions of a Tribunal should be made at the very earliest opportunity after the cause for

complaint arises.

(b) That where an application is made for leave to bring judicial review proceedings to challenge some decision of a Tribunal

that it be made on notice to the Tribunal concerned

(c) That a test higher than the “arguable case” test should apply in such circumstances to the leave application.

84. It seems to me that if these requirements were to obtain, the number and duration of legal challenges might be significantly

reduced and the ability of Tribunals to get to the end of their work in timely fashion might be enhanced to a significant degree.