Supreme Court dismisses appeal against Tribunal's decision to hold public hearings on Lowry's Doncaster Rovers purchase.

THE SUPREME COURT

[370/2005]

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

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 16th day of February, 2006.

1. By an order dated 12th May 2005, this court gave leave to the above-named Appellant to apply for an order of certiorari by way of

application for judicial review of the decision of the Respondent to proceed to public hearings in respect of the purchase of Doncaster

Rovers Football Club (hereinafter DRFC) 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 the 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.

2. By the same order this court refused the Appellant’s application for such leave on a number of other grounds.

3. The Appellant’s application for judicial review came on for hearing before Abbot J in the High Court over five days in July 2005. He

delivered judgment on 6th October 2005 and refused the application on all grounds. The Appellant now appeals that decision.

4. The Appellant has made submissions before the Court relating both to the substantive and to the procedural provisions of the

Terms of Reference of the Tribunal.

5. The Terms of Reference of the Tribunal are contained in the resolution passed by Dáil Eireann on 11th September 1997 and by

Seanad Eireann on 18th September 1997 and set out in the Order of the Taoiseach of 26th September 1997 setting up the Tribunal.

The Tribunal is interested in inquiring into the business affairs of the Appellant only insofar as “payments” as defined may have been

made to Mr Michael Lowry. It has not been suggested that the Appellant has ever had any connection with Mr Charles Haughey. 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) [concern Mr Haughey and are 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.

f) [concerns bank accounts of Mr Lowry and has not figured in the arguments on the appeal]

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.”

6. 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.”

7. The procedural provisions of the Terms of Reference, raised in argument on the appeal, 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…”

8. The present proceedings are relevant to paragraphs e) and g) of the Terms of Reference in the following way. Mr Lowry, was

responsible in 1996, as Minister for Transport, Energy & Communications, for the grant on behalf of the State of the second mobile

phone GSM license. The successful bidder was a company promoted by the Appellant, namely ESAT Digifone. For the purposes of this

appeal, it has been assumed that the Appellant benefited from the grant of that license. Paragraph g) of the Terms of Reference

requires the Tribunal to inquire whether Mr Lowry, insofar as the GSM transaction is concerned (though it is not expressly mentioned),

made the relevant decision in order “to confer any benefit on any person making a payment referred to in paragraph (e)……” In

short, it is an inquiry into whether the decision was made corruptly. Paragraph e) is focused on any “payments” which may have been

made, and hence necessarily corruptly made, to a person benefiting from the decision.

The Appellant’s case

9. Each of the Appellant’s arguments calls for an interpretation of the Terms of Reference. Firstly, he says that, whatever its

relevance to the Terms of Reference, the entire of the Doncaster Rovers Football Club transaction took place, as indeed appears to

be the case, after the establishment of the Tribunal and after the date when the Terms of Reference were adopted. It was not and

could not, it is said, have been intended to establish a public inquiry into what were, when the Tribunal was established, future

events. Secondly, and, in effect alternatively, the Appellant argues that the Respondent, when he decided to proceed to hold public

hearings in respect of the Doncaster Rovers Football Club matter, did not have any evidence sufficient to warrant such a decision.

The decision was, therefore, unreasonable to the extent of being, for the purposes of judicial review, irrational.

10. The following is a brief summary of the material available to the Tribunal in respect of the Doncaster Rovers Football Club

transaction. In 1998, the Appellant received a proposal from one Kevin Phelan for the purchase of the property of Doncaster Rovers

Football Club, then in administrative receivership. Mr Kevin Phelan, who resides in the Northern Ireland, and who is apparently not

available to the Tribunal as a witness, contacted the Appellant’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 acted for Mr Lowry in connection with other English property transactions, though Mr Vaughan has said that

he first met Mr Lowry on 24th September 1998.

11. Doncaster Rovers Football Club 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 Doncaster Rovers property. The transfer took place on 18th August 1998.

12. The Applicant gave details in his affidavit grounding his application for judicial review 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 remained so at the time

of the transactions covered by the Doncaster Rovers investigations proposed by the Tribunal.

13. 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 to investigate the Doncaster Rovers Football Club transaction. Firstly, it

was headed “Doncaster Rovers Football Limited.” Secondly, it stated that certain letters concerning that transaction were enclosed,

i.e., they were being sent to Mr Lowry. Thirdly, it discussed some of the outstanding problems regarding that transaction, including Mr

Vaughan’s fees. Finally, 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. This triggered the Tribunal’s interest in the matter.

The Tribunal wrote to the Appellant making inquiries concerning any involvement of Mr Lowry in the Doncaster Rovers transaction.

14. 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, that Mr Lowry had no such interest.

15. 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…….” On the other hand, Mr Vaughan had also written that he did not think he had

“misunderstood” Mr Lowry’s “comments to me that he was involved in DRFC, but in hindsight I must put it down to some sort of

political ego that he was trying to attach his name to what appear [sic] to be a successful venture.” As mentioned below, Mr

Vaughan seems to have spoken in similar terms to Ms Ruth Collard.

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

17. 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.

18. 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.”

19. 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.”

20. On 10th September 2002, Ms Ruth Collard, a partner in Carter-Ruck and partners, solicitors, who had commenced to act for the

Appellant 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 Appellant’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]

21. There is a memorandum of another member of the firm of Carter-Ruck and partners, Ms Kate Macmillan, dated 22nd October 2002,

recording a telephone conversation in which Mr Vaughan is stated to have said: “ML said that he was involved in Doncaster Rovers

Football Limited. CV said that perhaps was [sic, recte “what”] ML had said to him about Doncaster Rovers Football Limited was

politicians’ puff. Perhaps he was latching onto some transaction, which might have been perceived at the time as successful……

22. 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.

23. In 2002 also, William Fry, solicitors, acting for Mr Denis O’Brien, senior, wrote a number of letters seeking an explanation for a line

in a FAX dated 11th August 1999 from Mr Aidan Phelan to Mr Kevin Phelan. This document was headed, “Doncaster Project” and

discussed some outstanding matters. Heading No 7 of the FAX read: “ML Kevin Phelan to refer all queries regarding Doncaster to

Aidan Phelan.” William Fry, in a letter of 2nd August 2002 said: “We interpreted this (and we are perfectly prepared to be told that

this interpretation was incorrect) as a possible indication that Mr Lowry was, in fact involved in some way in the Doncaster Rovers

transactions.”

24. Counsel for the Appellant, Mr Eoin McGonigal, Senior Counsel, submits that, assuming the Doncaster Rovers Football Club

transaction could amount to a “payment” to Mr Lowry, the Tribunal has no power to investigate events occurring after the adoption

of the Terms of Reference. Paragraph e) uses the past tense: it refers only to “substantial payments” which “were made.” Section

1(1) of the Tribunals of Inquiry (Evidence) Act, 1921 authorises the establishment of a tribunal “for inquiring into a definite matter …

… of urgent public importance……” This could not refer to a future matter. In particular, Mr McGonigal submitted that the Tribunals of

Inquiry (Evidence) (Amendment) Act, 1998 inserted a new section 1A after section 1 of the 1921 Act, which permits a Tribunal to

request an amendment to its Terms of Reference. The Respondent could and should have availed of this procedure and should have

asked the Houses of the Oireachtas, as has been done in the case of another Tribunal, to amend the Terms of Reference so to enable

it to inquire into the Doncaster Rovers Football Club matter.

24. The Appellant submits, in support of the second ground for judicial review that the Respondent was not entitled to proceed to

hold public hearings in respect of the Doncaster Rovers Football Club matter on the basis of the evidence available. In accordance

with the Terms of Reference, the Tribunal is requested to carry out investigations using all its powers and, where necessary to do so

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…” Mr McGonigal submits that the Tribunal has no “evidence” before it which would justify

proceeding to public hearings. The documentary evidence in relation to the transaction contains no support for an interest of Mr

Lowry in the Doncaster Rovers Football Club transaction. The persons capable of confirming directly whether or not Mr Lowry has an

interest in Doncaster Rovers Football Club are Mr Lowry himself, the Appellant, and Mr Denis O’Brien, Senior. Each of these persons

has denied that fact and has communicated this denial to the Tribunal. The “evidence” of Mr Vaughan and of Ms Ruth Collard is, at

best, hearsay. Mr Vaughan is not, in any event, available to give evidence before the Tribunal. Nor is Kevin Phelan. In these

circumstances, Mr McGonigal, while accepting that he must establish that the decision of the Respondent is irrational in the sense of

the decisions in The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O’Keeffe v. An Bord Pleanála [1993] 1 I.R.

93, says that there is no sufficient basis for that decision.

The Respondent’s case

25. Mr Shane Murphy, Senior Counsel for the Respondent addressed the first or temporal issue. He submitted that the approach of the

Appellant was fundamentally flawed. In the first instance, it is for the Respondent to interpret the Terms of Reference. They oblige

the Respondent to “inquire” urgently into specified matters of urgent public importance. Paragraph e) covers payments made during

“any period when [Mr Lowry] held public office.” For this purpose, it is common case that the status of a member of Dáil Eireann is

that of a holder of a public office. There is no literal temporal limitation in either paragraph e) or g). In this respect, these paragraphs

can be contrasted with those parts of the Terms of Reference which required the Tribunal to inquire into payments made to Mr

Haughey, in whose case specific dates are prescribed. The expression “whether any payments were made” in paragraph e) should be

read together with the reference in paragraph g) to “any person making a payment referred to in paragraph e).”

26. More generally, the Respondent states in his written submissions that the Appellant’s contentions are based on an erroneous and

artificial reading of the Terms of Reference and that they would fundamentally undermine the objectives of establishing the Tribunal.

27. Mr Brian Murray, Senior Counsel for the Respondent, addressed the second issue, namely whether the decision of the Tribunal was

unreasonable by reason of the absence of sufficient evidence to justify proceeding to public hearing in respect of the Doncaster

Rovers Football Club matter.

28. Mr Murray criticised the approach of the Appellant as being based on a misinterpretation of the words, “sufficient evidence” as

used in paragraph i) of the Terms of Reference and quoted above. In that context the expression does not connote legally admissible

evidence for the purpose of civil proceedings or for the purpose of constituting proof at a hearing before the Tribunal. Still less does it

mean evidence that would tend to sustain an allegation that, for present purposes, Mr Lowry had or has an interest in Doncaster

Rovers Football Club. Furthermore, it is not the duty of the Tribunal, at the stage of deciding to proceed to public hearing, to weigh

conflicting pieces of evidence.

29. According to Mr Murray, the word “evidence” in the present context refers rather to “information” which relates to the subject-

matter of the Tribunal’s inquiries. The purpose of the investigative stage, which, as envisaged by the Terms of Reference, may be

conducted in private, is to enable the Tribunal to discover whether there are grounds which warrant a public inquiry. At the latter

stage, the materials gathered at the investigative stage will be put in evidence and only then will their evidential status and weight

be determined.

30. For the purpose of this part of the case, Mr Murray drew the attention of the Court to a substantial body of information, some of

it the subject of evidence at hearings, some of it evidence in the sense, already mentioned of “information.” The Tribunal has already

conducted lengthy hearings concerning the conduct of the GSM license process and has inquired in detail into the financial affairs of

Mr Lowry. The Respondent has not, at this stage, reached any conclusions or made any findings in respect of these matters. Much of

this material has been presented to this Court in the form of an opening statement of counsel for the Tribunal at a public hearing on

22nd May 2001. Counsel explained that “the information……will involve examining material concerning relationships, connections or

dealings between Mr Lowry and a number of individuals against a background in which some of these individuals and Mr Lowry were

involved in a competition to operate what has come to be known as the second GSM license.”

31. This material relied upon for this purpose includes the following.

32. A number of financial and property transactions in England appeared to involve Mr Lowry. Prior to the emergence of the Doncaster

Rovers Football Club matter, these related principally to properties at Mansfield and Cheadle, though these actually post-dated the

Doncaster Rovers matter. Individuals variously connected directly or indirectly with these matters were the late Mr David Austin, Mr

Aidan Phelan, Mr Kevin Phelan, Mr Denis O’Brien and Mr Christopher Vaughan. Mr Vaughan acted as Mr Lowry’s solicitor in these

matters.

33. The Tribunal had inquired into a property purchased by Mr Lowry at Carysfort in Dublin. The Tribunal later discovered that Mr

Lowry had received a loan for work on this property. The sum appeared to be in the sum of £147,000 and to have come from an off-

shore account of Mr Austin in the Channel Islands and to be paid into an off-shore account of Mr Lowry in the Isle of Man. The

Tribunal had information that the money used to fund this payment represented the proceeds of sale of property which the Appellant

had purchased in Spain from Mr Austin.

34. The Mansfield transaction was a joint venture between Mr Lowry and Mr Aidan Phelan, an associate of the Appellant. A sum of

£300,000 sterling used by Mr Phelan to fund his part of the transaction appeared to have been sourced from an account of the

Appellant at a bank in London.

35. The Tribunal has also already conducted public hearings into the payment of a sum of US$50,000 from the Norwegian company

Telenor via Mr Austin to the Fine Gael party. Mr Lowry was chairman of the trustees of the Fine Gael party and was also acquainted

with Mr Austin. On the other hand, he has denied that he had any contemporaneous knowledge of this payment.

36. It is very important to emphasise that not only has the Tribunal not reached any conclusions regarding whether any of these

matters involved “payments” for the purposes of the Terms of Reference but that they are, together with a number of other matters

of detail, which it is unnecessary to relate, placed before the Court as constituting “information” available to the Tribunal at the time

of the decision of 27th May 2004 which may justify the decision to proceed to public hearing on the Doncaster Rovers Football Club

matter.

Conclusion

37. There is no dearth of authority on the relationship between the courts and the conduct by the Tribunals of inquiry of the inquiries

required of them by the Oireachtas. The Courts will intervene where there is a real apprehension that a tribunal is in danger of

departing from the fundamental requirements of fairness and justice. A good example is the recent decision of this Court in

[O’Callaghan]. On the other hand, the courts are notably slow to intervene in matters which are essentially within the scope of the

tribunal’s own judgment and discretion. I stated in my own judgment of 12th May 2005 in this same matter:

"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)."

38. The Appellant’s claim that the Terms of Reference of the Tribunal are temporally limited to matters occurring before and not after

the establishment of the Tribunal presents itself firstly and naturally for consideration. The following is the question: is the Tribunal

empowered to inquire into the Doncaster Rovers Football Club transaction, assuming that its earliest manifestation occurred after its

establishment?

39. This proposition must first overcome the obstacle that, as is well established, it is for the Tribunal, in the first instance,) to

interpret its own Terms of Reference (see Haughey v. Moriarty [1999] 3 I.R. 1.

40. Accepting, nonetheless, that the Court may review such an interpretation, when, as a matter of law, it is clearly wrong, I believe

that the answer is to be found by reading paragraphs e) and g) of the Terms of Reference in the context of the factual background

already established. They cannot be read in isolation from the material facts of the case. The Tribunal is inquiring in reality, when

these two provisions are read together, into whether any payments, as defined, were made to any holder of any public office arising

from the award of the second GSM license. This inquiry originates, therefore, with that decision made by Mr Lowry, when, as

paragraph g) envisages, he held a “ministerial office.” Mr Lowry made that decision prior to the establishment of the Tribunal. His

tenure as a minister also ended prior to that date. Those aspects of the inquiry occurred prior to the establishment of the Tribunal.

41. Paragraph g) postulates, in addition, a decision made by virtue of a “Ministerial office” which also confers a benefit on a person.

For present purposes, it can be assumed, though it is a matter for the Tribunal to decide, that the Appellant has benefited from such

a decision made by Mr Lowry. The inquiry, for present purposes, is concerned with whether the Appellant is also a person “making a

payment referred to in paragraph (e)…” There is no temporal limit, expressed in this language, on the making of the payment, though

the words refers back to paragraph e).

42. The Appellant’s case is that the words used in paragraph, namely “whether any substantial payments were made…” [emphasis

added] connote the past. This argument presumes past events by reference to the date of the Terms of Reference. This seems to me

to be a slender basis for such a large proposition. From what date do the words speak? Why should they not speak from the date of

the actual conduct of Tribunal’s inquiry?

43. Undoubtedly, the Terms of Reference must be interpreted in the light of the legislation. The 1921 Act empowers the Oireachtas to

establish a Tribunal of inquiry only in respect of “a definite matter……of urgent public importance… That matter must exist at the

time of the passing of the resolutions establishing any such Tribunal. I believe that the fact of Mr Lowry’s tenure of the office of

Minister for Transport, Energy & Communications and his making of the important decision concerning the second GSM license,

combined with other information available to the Oireachtas, constituted such “a definite matter…” It provided a basis for inquiring

into any payments made to Mr Lowry which might be shown to be linked to that decision.

44. The question then is whether the Tribunal was limited from its establishment to inquiring only into payments already made at the

date of its establishment. I do not believe it was. Paragraph e) of the Terms of Reference contains no limitation as to the time of the

making of any “payments.” In this, it is true that it may be contrasted with those parts of the Terms of Reference which concern Mr

Haughey, though I would not regard that point as decisive. I prefer to look at the language of paragraph e) and its relationship with

paragraph g). The former paragraph limits inquiry to payments made to Mr Lowry while he held “held public office.” The decisive point,

in my mind, is that paragraph g) authorises inquiry into whether a decision was made so as to benefit a person “making a payment

referred to in paragraph (e)…” I do not believe that the language of these two paragraphs restrict the powers of the Tribunal to

inquiring into payments made before its establishment. Furthermore, I believe that any such limitation would not be consistent with

the objective of inquiring into payments possibly made to a person who formerly held ministerial office and made by a person who

benefited from such a decision. Clearly, such payments would necessarily be corrupt, but they might be made at any time whether

before or after the making of the decision.

45. It remains to consider whether the decision of the Respondent of 27th May 2004, to Proceed to public hearing in respect of the

Doncaster Rovers Football matter was unreasonable. Mr McGonigal rightly accepted that, in order to succeed on this ground, he must

satisfy the Court that it was irrational in the sense explained in the decisions of this Court in State (Keegan) v Stardust Compensation

Tribunal [1986] I.R. 642 and O’Keeffe v An Bórd Pleanála [1993] 1 I.R. 39. In those cases the Court was merely giving effect to the

outer limit on the judicial role in reviewing decisions of administrative bodies or bodies exercising designated powers. The courts act as

a check on the legality of decisions; they control excess of jurisdiction; they demand respect of fair procedures. Otherwise, they are

limited in their power to trespass on the zone assigned to those bodies, save in the such cases as were described, with the

agreement of all members of the Court, by Henchy J at page 658 of his judgment in the Keegan case:

“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the

impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the

decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all

decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or

disregard fundamental reason or common sense in reaching his decision.”

46. Finlay C.J., in the later case of O’Keeffe, reiterated the correctness of the above approach and added that “the circumstances

under which the court can intervene on the basis of irrationality with the decision-maker involved in an administrative function are

limited and rare.” He went on the mention the negative aspects of the limits thus proclaimed, stating:

“The court cannot interfere with the decision of an administrative decision-making authority merely on the grounds that (a) it

is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is satisfied that the

case against the decision made by the authority was much stronger than the case for it.”

47. These decisions do not represent an abdication of judicial power. Henchy J spoke of “the necessarily implied constitutional

limitation of jurisdiction in all decision-making…” The Courts will, of course, always have regard to the context of a decision, the

statutory purpose of the body concerned and its duties and, where appropriate, the need to have regard to the rights or interests of

individuals or categories of individuals, whose interests it is the object of legislation to protect. (see White v Dublin City Council and

others [2004] 1 I.R. 545.) It is, therefore, necessary to consider the nature and extent of the discretion conferred on the Respondent

by the Terms of Reference, which provide the context in the present case.

48. The Appellant concentrates his fire on the notion that, for the purposes of paragraph i) of the Terms of Reference, the

Respondent is obliged to “determine whether sufficient evidence exists ……… to warrant proceeding to a full public inquiry.” However,

paragraph i) must be explained by reference to its statutory context. It is implicit in the Appellant’s submissions that the Tribunal

must, firstly, conduct investigations in private in relation to any particular matter and only then decide whether to hear evidence in

public. It is true that the Terms of Reference allow and even encourage the Tribunal to follow that procedure. However, the Terms of

Reference also recognize that it must conduct its inquiries in a manner “consistent with the provisions of the Tribunals of Inquiry

(Evidence) Acts……” It may use “all the powers conferred on it under the Acts …” which includes private investigations “where

appropriate.”

49. When one considers what those powers are, one discovers both that a Tribunal’s coercive procedural powers are limited to the

conduct of public hearings and that, by corollary, firstly, Tribunals cannot compel witnesses to give evidence at private inquiries, and,

secondly, that the Courts do not have the power to compel a Tribunal to conduct a private hearing. The Tribunals of Inquiry Acts

primarily envisaged that inquiries would be conducted only in public. They were to be public inquiries. But it became obvious that, in

practice, it was necessary for Tribunals to gather material for presentation at public hearings and, by extension to prepare in private,

through the work of its own counsel, statements of witnesses to be presented at public hearings. Tribunals had no powers, however,

to compel witnesses to give evidence at such private hearings. It was understandable that Tribunals would, in this way, commence to

sift out matters which would not warrant public inquiry. This might be simply because there was no evidence available to warrant

moving to the public stage. At the same time, it could arise that serious allegations were made which were without any shred of

credibility. In such cases, a Tribunal would protect the good names of persons obviously falsely accused by not going public.

50. In Redmond v Flood [1999] 3 I.R. 79, this Court refused leave to apply for judicial review, inter alia, of a decision of a Tribunal to

proceed to public inquiry. The applicant had submitted that he should have been allowed “an opportunity to be heard in relation to

the sufficiency of the evidence against him before deciding to proceed to a public inquiry.” Hamilton C.J., speaking for a unanimous

Court and rejecting arguments based on the judgment in Haughey v. Moriarty, cited above, said:

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

Haughey v. 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.”

51. The other side of that particular coin was that, as already stated, a Tribunal has no power to compel witnesses to give evidence

in private. In Lawlor v Mr Justice Feargus Flood [1999] 3 I.R. 107, the facts were that the sole member of a Tribunal had made orders

directing the applicant to attend for questioning before counsel for the Tribunal, to produce documents and to swear an affidavit. On

this issue, Hamilton C.J. stated, at page 132:

“The principal powers of the Tribunal are to enforce the attendance of witnesses; to provide for their examination before the

Tribunal and to compel the production of documents. It may well be that some citizens may volunteer the supply of

statements of evidence or other documents to the Tribunal. It may also be that some witnesses faced with the prospect of a

subpoena from the Tribunal may prefer to furnish a statement or documents to the Tribunal's solicitor or his clerk. The

Tribunal may be prepared, initially, to accept from a potential witness a list or affidavit of documents. All these are matters

for arrangement between the Tribunal and the witnesses concerned should it appear practicable. But when it comes to the

formal exercise by the Tribunal of its powers to examine witnesses this must be done by the Tribunal itself and, except as

provided by law, must be done in public.”

52. I believe that this brief citation from the authorities on the topic provides the basis for resolution of the questions raised by the

Appellant. The following points are relevant.

53. The first, and in a sense, the most important point relates to the meaning of “evidence” as that term is used in the Terms of

Reference. It is easy to understand and sympathise with the Appellant’s apprehension, if that word connotes actual, tangible and

legally admissible evidence of the truth of the suggestion, to the contrary of his own strenuous denials, that Mr Lowry had or has an

interest in the Doncaster Rovers Football Club, a matter in which the Appellant had the principal interest. However, I am satisfied that

the expression “evidence” approximates more closely to “information.” The Houses of the Oireachtas are not required to have any

evidence before they establish a Tribunal of inquiry, but rather “a definite matter… … of urgent public importance.” The Tribunal is

required to inquire into that matter. It cannot be expected to have “evidence” of the very matter into which it is required to inquire.

The Terms of Reference are designed to enable the Tribunal to manage and schedule its investigations in a practical fashion. It may

use private investigations to gather and to sift. How it does so is a matter for it. Whether public inquiry is warranted is a matter for it.

I would, therefore ask whether the Respondent has sufficient information to warrant proceeding to public inquiry.

54. The second proposition is that the Tribunal is not obliged to weigh and assess the “evidence” available to him before proceeding

to public hearing. It needs merely to be “information.” It is for the Tribunal to judge whether the matter is worth pursing. It must be

remembered that the Houses of the Oireachtas have given it a mandate to inquire. He is not obliged to consider whether the evidence

is more or less likely to bear out any particular proposition. On the other hand, I believe that, at one point, Mr Murray put the

Tribunal’s case rather too strongly, when he submitted that the Tribunal was not even entitled to weigh up whether the evidence, in

the sense of information, available to him was sufficient in the light of other very strong evidence (such as the clear denials of the

Appellant and Mr Lowry of any interest of the latter). Although I would allow the Tribunal rather more latitude, I am satisfied that the

Respondent was not obliged, on the facts before this Court, to balance the information, such as Mr Vaughan’s letter, suggesting Mr

Lowry’s involvement in the Doncaster Rovers Football Club transaction, against the absence of any documentary evidence of title

coupled with the denials of the principals.

55. The third proposition, which is an extension of the first and second, is that the Tribunal does not require anything in the nature of

a prima facie case for a particular proposition in order to justify proceeding to public hearings. I agree with Mr Murray’s submission

that a Tribunal is not required to have before it the sort of prima facie which was formerly required before the District Court could

send a person forward for trial on indictment.

56. In view of my conclusions on these issues, I am satisfied that the Appellant has not made out a case that the Respondent’s

decision of 27th May 2004 was unreasonable. Indeed, on the basis of the test which I have applied, it would be extremely difficult to

envisage circumstances where a decision of a Tribunal, made in similar circumstances, would be quashed. What is at issue is a

preliminary or ad limine decision of a Tribunal to investigate a matter in public. That decision of the Tribunal decides nothing more.

The Tribunal has made it clear before this Court, as it was undoubtedly bound to do, that it has determined no issue whatever

concerning the possible interest of Mr Lowry in the Doncaster Rovers Football Club transaction. The Tribunal accepts, as it must, that

it is obliged to respect the rights of all persons appearing before it to just and fair procedures. In particular, it may rely only on

evidence fairly produced which may be contradicted.

57. It is not necessary and would not be appropriate to comment in any respect on the matters of fact or alleged fact which have

been summarized earlier in this judgment. So far as this Court is concerned, none of these matters are established. There is material

concerning them which may (or may not) be the subject of evidence before the Tribunal. This Court has to judge only whether the

Appellant, for the burden lies upon him, has shown that the decision of the Tribunal to investigate them is unreasonable, i.e.,

irrational. The material concerning the Doncaster Rovers Football transaction, summarized earlier in this judgment shows at least that

a number of solicitors, at different times, had information which appeared to suggest that Mr Lowry had an interest in the transaction.

Following investigation by the Tribunal, it may well transpire that there is nothing to back up their concerns. It is quite another matter

to say that the Tribunal may not investigate them. By reason of my interpretation of the Terms of Reference of the Tribunal and of

the authorities cited by the parties, I do not believe, in view of the information available to him, that it was unreasonable of the

Respondent to decide that he should proceed to public hearing in respect of the Doncaster Rovers Football Club transaction.

58. Consequently, I am of opinion that Abbot J. was correct in his decision to dismiss the application for judicial review and I would

dismiss the appeal and affirm the order of the High Court.