Supreme Court allows appeal against Tribunal of Inquiry for failing to disclose material and ensuring manifest unfairness.

[2007] IESC 17

THE SUPREME COURT

2006/398

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

BETWEEN:

OWEN O’CALLAGHAN, JOHN DEANE, RIGA LIMITED

AND

BARKHILL LIMITED

APPLICANTS/APPELLANTS

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY and JUDGE GERALD KEYS,

MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS

JUDGMENT of Mr. Justice Hardiman delivered on the 30th day of March, 2007.

1. The respondents are the current members of the Tribunal of Inquiry into certain planning matters and payments. This Tribunal was

established originally in October, 1997 with Mr. Justice Flood as its sole member. It was then to inquire into the planning history of

specified lands in North Dublin. The terms of reference however were subsequently extended and in the upshot the Tribunal is still

sitting. The original sole member has long since retired from it having published some reports on certain matters within its remit. The

respondents are the current members of the Tribunal and they sit together to transact the Tribunal’s business.

The nature of Tribunal and the present case.

2. The Tribunal was established by Instrument of the Minister for the Environment and local government dated the 4th November,

1997, as amended by a further Instrument dated the 15th July, 1998. These, in turn, followed resolutions of Dáil Éireann, resolving

that it was 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 enquire 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”.

3. The Tribunal, accordingly, is intended and empowered urgently to carry out a public inquiry into matters specified in the resolutions

which are regarded as being matters of urgent public importance. Notwithstanding this, however, the bulk of the Tribunal’s work in the

period, extending now to almost a decade, since its establishment, has been conducted in private. The nature of this work done in

private, and the basis on which it is done, are central to the present case. The applicants complain that the Tribunal dealt intensively

in private with a person whose hostility to them is manifest, Mr. Tom Gilmartin. He has made allegations against them which the

Tribunal is investigating. They claim that these interactions, at least 36 in number, took place at meetings in Ireland and in the United

Kingdom and in a series of immensely long telephone conversations. The applicants claim that they led, just before the public hearings

of March, 2004 to the production of a statement of Mr. Gilmartin’s proposed evidence which was notable (in hindsight) for the

withholding of any information which might adversely affect his credibility or otherwise be of any use in cross-examining him. This

course of action, however, did not have its desired effect because Mr. Gilmartin was simply incapable of confining his evidence to the

terms of the statement which the Tribunal had circulated. In the course of and after an uncontrolled and possibly uncontrollable

tirade of un-notified material from Mr. Gilmartin, it became clear that the Tribunal had far more by way of documentation from and

relating to Mr. Gilmartin and his allegations than had been circulated. Furthermore, Mr. Gilmartin expressly conceded that this un-

circulated material might contain information inconsistent with what he said at the public hearing.

4. This development led to the first judicial review proceedings in which Mr. O’Callaghan and the Tribunal have been involved,

2004/324 JR. As a result of these proceedings, and further proceedings in the High Court, the applicants are now in possession of a

considerable volume, though not all, of the material previously withheld by the Tribunal. Having seen this material, for the first time,

the applicants make a new case. Very broadly, they say that the nature and content of the withheld material is such that the

Tribunal’s act in suppressing it gives rise to the reasonable inference of prejudgment of certain important matters, notably the

credibility of Mr. Gilmartin. They further say that this inference is strengthened by other aspects of the history of the case, to be

discussed below. The Tribunal very strongly deny this. They concede that they made a grave error in withholding from Mr. O’Callaghan

and the other applicants the material which they now have as a result of the previous judicial review proceedings. But the Tribunal

says that, now that the applicants have it, they can proceed to use it to cross-examine Mr. Gilmartin and to make further inquiries.

They argue that the mistake which they (the Tribunal) made in withholding the material was of a legal nature; this has now been

corrected; there is no reason why they should not now proceed to hear and reach conclusions upon what Mr. Gilmartin has to say

about Mr. O’Callaghan and his associates.

Power to sit in private.

5. The resolutions of Dáil Éireann mentioned above contain the following material:

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

consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 - 1998:

(i) To carry out such preliminary investigations in private as it thinks fit (using all the powers conferred on it under the

Acts), 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 inquire fully into such matters referred to [above] in relation to which such evidence may be found to exist; ”.

6. It will thus be seen that the resolution of Dáil Éireann envisaged “preliminary investigations in private” for the purpose of

determining whether sufficient evidence existed in relation to particular matters to warrant proceeding to a full public inquiry in

relation to them. It is indisputable that the portion of the Tribunal’s work carried out in private has gone far beyond that very

restricted threshold issue. At the moment it is sufficient to say that amongst the things which occurred in private were interviews

with people who are willing to be interviewed, the scrutiny of documents, the preparation of statements and, at least in one case,

the preparation of an affidavit for a person who was intended to give evidence. In Mr. Gilmartin’s case, as noted above, there was

also a considerable number of telephone conversations, some immensely long, on topics relevant to the work of the Tribunal. Written

material prepared by him and his then Solicitor was also received in private session. An immunity from prosecution was procured for

Mr. Gilmartin from the D.P.P. through the Tribunal.

7. The Tribunal has been dealing with Mr. Tom Gilmartin at least since 1998. This gentleman was at one time involved in assembling

parts of the land which constituted the Quarryvale site in West Dublin. In the course of this he came to have dealings with Mr. Owen

O’Callaghan and Companies controlled by him. The latter is a director of the two corporate plaintiffs in the present application. Mr.

John Deane is a well known solicitor who has participated with Mr. O’Callaghan in certain property developments.

8. The business dealings between Mr. O’Callaghan and his associates and Mr. Gilmartin did not end to the latter’s satisfaction. As a

result of this, as is quite clear from his evidence referred to below, Mr. Gilmartin bears a considerable animus against Mr. O’Callaghan

and indeed against others who are not concerned in the present litigation. He has made allegations against those parties. All of these

allegations are dramatic, and some of them are quite extraordinary. A number of them would clearly amount to breaches of the

criminal law, if true.

9. The immediate background to the present action relates to the “Quarryvale 1” module of the Tribunal’s public sittings. These took

place in March, 2004. It was preceded by the circulation in December, 2003 of and “Explanatory Memo re Rezoning Module”, a further

Explanatory Memorandum of January, 2004 and an enormous “Brief” consisting of over 3,200 pages. The subject of the module was to

be Mr. Gilmartin’s business dealings in Dublin between 1987 and 1990. The brief included a statement of Mr. Gilmartin more than half of

which, in the form in which it was served on Mr. O’Callaghan, was blacked out or “redacted”.

10. Mr. Gilmartin’s oral evidence commenced on the 3rd March, 2004, and did not, as far as Mr. O’Callaghan was concerned, at all

correspond to the statement which had been circulated. Mr. Gilmartin publicly abused Mr. O’Callaghan, calling him a crook and a

blackmailer. He then proceeded to make eight entirely un-prefigured allegations. These are as follows:

(1) Mr. Gilmartin was shown by counsel for the Tribunal a written agreement into which he had entered with Mr.

O’Callaghan on the 31st January, 1989. This was signed by him and his signature had been witnessed by his solicitor. His

previous complaint had been that the agreement did not contain all the terms actually agreed between himself and Mr.

O’Callaghan, and on which they had shaken hands. In evidence, however, he said that the agreement which he was

shown was not the agreement which he signed and that it had been falsified by Mr. O’Callaghan and his (Mr.

O’Callaghan’s) solicitor so as to alter its terms.

(2) That at their first meeting of the 7th December, 1988, Mr. O’Callaghan told him that he had just come from a dinner

for the launch of the Lee tunnel and that he had had the line of the tunnel altered so as to suit a named site that he

owned.

(3) That one of the reasons why he had paid £50,000 to the then Minister for the Environment by way of a cheque in

which he had left the payee blank was for the purposes of stopping the activities of Mr. O’Callaghan. He had not

mentioned Mr. O’Callaghan in this connection in the redacted form of his statement, but had named others.

(4) That Mr. O’Callaghan had given false information to the British Revenue which had resulted in Mr. Gilmartin being

declared bankrupt.

(5) That Mr. O’Callaghan had bribed a named councillor.

(6) That the purchase by Mr. O’Callaghan of Mr. Gilmartin’s interests in a site at Balgaddy was the result of Mr.

O’Callaghan holding him to ransom.

(7) That Mr. O’Callaghan, with the connivance of a bank, stole Mr. Gilmartin’s money and used it to bribe councillors to

block rezoning for the Quarryvale scheme.

(8) That Mr. O’Callaghan had encouraged Mr. Gilmartin not to cooperate with the garda investigation into his allegations.

11. The extent to which these grave allegations transformed the case he was making against Mr. O’Callaghan is illustrated by recalling

that the only allegation of which Mr. O’Callaghan had been put notice was a suggestion that he was present in Buswells Hotel, Dublin,

in December, 1998, when, out of his hearing, a named councillor made a demand for a £100,000 of Mr. Gilmartin. He said he later had

a conversation with Mr. O’Callaghan who, allegedly, made a remark consistent only with knowledge on his part of such a demand. The

rest of what he said at the public sitting of the Tribunal was simply not in any way indicated in the statement given to Mr.

O’Callaghan.

12. The Tribunal did not by counsel or otherwise prevent the making of these un-notified allegations. It is, however, fair to say that

Tribunal counsel himself appeared surprised by the first mentioned allegation, to do with the agreement of the 31st January, 1989.

When Mr. O’Callaghan denied that the document produced at the public sittings was the document which he signed, counsel remarked

that Mr. Gilmartin had himself given the document to the Tribunal.

13. It was this very significant development - the making of multiple un-notified allegations by Mr. Gilmartin against Mr. O’Callaghan in

a public sitting of the Tribunal - which has led to all the litigation and other developments which have followed. The detailed history of

the events which immediately followed Mr. Gilmartin’s allegations is set out in the judgments of Geoghegan J. and myself in Mr.

O’Callaghan’s earlier judicial review proceedings (2004/324 JR) which judgments were delivered on the 9th March, 2005. This case is

now reported at [2006] 2 I.R. 32: the judgments are also available on www.courts.ie. I can only say that these judgments are

essential reading for anybody wishing to understand the case now made by Mr. O’Callaghan. At the Tribunal, Counsel for Mr.

O’Callaghan attempted as best he could to deal with these entirely un-prefigured allegations. For this purpose he sought disclosure of

the withheld documents. Before this occurred, Mr. Gilmartin was cross-examined on behalf of another party and conceded that he had

provided written and (recorded) oral material to the Tribunal over and above the statement which had been circulated. The Tribunal

placed extraordinarily strict restrictions on cross-examination as to such material. Counsel was however permitted to ask whether Mr.

Gilmartin had previously made statements to the Tribunal which contained material significantly inconsistent with the circulated

statement. He answered “There is a good possibility there is”. The Tribunal absolutely closed down cross-examination on this issue

beyond that point. They did so at public hearings at the Tribunal and, more formally, by a ruling delivered on the 24th March, 2004,

which is set out in full in my judgment in 2004/324 JR. In substance, that statement relied on a principle of confidentiality to justify

the withholding of documents.

14. Mr. O’Callaghan then sought judicial review of this decision. The High Court (O’Neill J.) granted this relief and his decision was

upheld by this Court in March, 2005. The relief granted included a declaration that the course adopted by the Tribunal in denying

access to documents, including information recorded and transcribed from Mr. Gilmartin by counsel, for the purpose of cross-examining

Mr. Gilmartin amounted to a failure by the respondent to observe and protect Mr. O’Callaghan’s rights to fair procedures and to natural

and constitutional justice.

15. After the Supreme Court decision the Tribunal disclosed certain further documents still, however, with significant redactions. The

matter was remitted to the High Court to resolve disputes about undisclosed material. Further documents or portions of documents

were disclosed following a further judgment of O’Neill J. It is the contents of the documents ordered to be disclosed which gives rise

to the present proceedings. The applicants say, amongst other things, that the nature of the documents now revealed is such that

their utility to a person, such as Mr. O’Callaghan, whose vital interests depended on contradicting Mr. Gilmartin, is blindingly obvious

so that the previous decision of the Tribunal to withhold them from him can only give rise to a reasonable inference of prejudgment on

its part of the issue of his credibility both in relation to specific topics and in general.

16. Before addressing this submission in detail (which will involve a consideration of some of the documents) it is necessary to

consider the Tribunal’s stated policy, differently expressed at different times, in relation to the withholding of documents or portions

of documents from persons represented before the Tribunal and Mr. O’Callaghan in particular. The purpose of this exercise is to allow

assessment of the decisions to withhold in light of the Tribunal’s declared policies.

Policy of the Tribunal about withholding documents or information.

17. The Tribunal’s policy in this regard has been expressed in a number of different ways. The Applicants say that these are not

consistent one with the other and that the Tribunal has altered its criteria for disclosure or suppression time after time in an attempt

to justify what was done. The various formulations are as follows:

(1) In the documentation accompanying the brief of documents for Quarryvale 1, redactions or omissions were explained

as follows:

“Please note that in some instances the Members of the Tribunal have directed that words, paragraphs or pages of

statements and of documents furnished to the Tribunal be removed or blanked out. This has been done where the text is

not relevant to the Inquiry at hand.”

From this formulation it may be noted, firstly, that the withholding of documents was decided upon by the Members of

the Tribunal and not (as apparently occurred in other modules) by counsel or other persons assisting them. Secondly, it

may be noted that relevance “to the Inquiry at hand” is the sole criteria stated for the withholding of information. It

appears that none of the criteria subsequently relied on were then in the mind of the Tribunal or, if they were, they were

not then stated to the persons interested. The criterion quoted above was, accordingly, the sole criterion which could be

in the minds of Mr. O’Callaghan or his counsel at the time when the oral hearings began. Not until the cross-examination

referred to above, during which it was conceded that “there was a good possibility there were” inconsistent statements

made by Mr. O’Callaghan in the possession of the Tribunal was there any hint that other considerations might apply.

(2) In the days between Mr. Gilmartin’s making of his eight un-notified allegations and the 24th March, 2004, a number of

statements were made by the Tribunal. These are summarised in my previous judgment to which reference must be made.

However, they included for the first time in this module reliance on confidentiality as a ground of non-disclosure of

relevant documents to a person attacked. So strongly was this relied on that counsel was not permitted to ask Mr.

Gilmartin if he had any objection to the disclosure of his withheld material: the Tribunal stated that this was a matter

exclusively for them. This ground was fully dealt with in the judgments in the earlier Judicial Review.

This ruling was, however, subject to an exception, also variously stated by the Tribunal at different times, but amounting

to an assurance that material containing a “gross, glaring, or significant” (different adjectives were used at different

times) inconsistency with what was said in evidence would be disclosed. It would, the Tribunal said, be wrong not to do

so. At the hearing of the appeal in 2004/324 JR, it was confirmed that this would include an inconsistency arising by

omission. No such material was in fact disclosed until after judgment in the previous judicial review.

(3) In the Tribunal’s Solicitor’s affidavit in the earlier proceedings at paragraph 36, she conceded that the evidence of Mr.

Gilmartin raised matters which had previously been advised to the Tribunal’s lawyers but justified non-disclosure on the

basis that such material was “unconnected with the module of the current Inquiry”.

(4) In a letter of the 26th September, 2005, which will be discussed below in another context, the Tribunal stated that

the originally redacted material was concerned either with matters which would be the subject of public hearing in another

module or with material which the Tribunal had “determined was not relevant to matters being enquired into in [the

relevant] modules, which would not be the subject of the Tribunal’s Inquiry.”

There is a particular difficulty in relation to this rigid modularisation, especially in relation to matters which bear on Mr.

Gilmartin’s credibility in general. As will be seen, the now disclosed material provides examples of this.

(5) In the statement of opposition in the present proceedings the Tribunal appears to add a new criterion for disclosure

by saying that, in considering whether there was a significant or glaring inconsistency requiring to be disclosed, that the

Tribunal consider that for information to constitute such an inconsistency “ it must go to the heart of the matter which

was the subject of the witness’s evidence”. This appears to be a novelty by comparison to both with what the Tribunal

said at the public hearing and with the position adopted at the earlier judicial review.

The material withheld.

18. We have so far followed the proceedings of the Tribunal to the point where its members heard Mr. Gilmartin make extraordinarily

damaging allegations against Mr. O’Callaghan and, to a lesser but still very grave extent, Mr. Deane, in open session. With one

exception in relation to Mr. O’Callaghan, these allegations were wholly unnotified. But they were made in public and manifestly had to

be responded to forthwith. From this response, and from material in the Tribunal’s possession emanating from Mr. O’Callaghan, it was

clear that these allegations were hotly disputed. Their capacity to have the most destructive effect on the reputation and standing

of Mr. O’Callaghan, Mr. Deane and the Companies with which they were associated was perfectly clear. It was also clear that the

allegations depended substantially and in most cases wholly, on the credibility of Mr. Gilmartin. The latter had himself conceded that

there might be, in the material he had given to the Tribunal, information inconsistent with what he was then saying.

19. The main thrust of the applicants’ case which alleges a reasonable apprehension of prejudgment against the Tribunal, is based on

the nature of the documents which it had at that time, and which it withheld and continued to withhold from the applicants despite a

specific request for their production. These documents must also be considered in the light of certain indications, and a formal ruling,

given by the Tribunal between the 4th and the 24th March, 2004, after the existence of the statements other than that circulated

had become clear.

The Tribunal’s criteria of March, 2004.

20. Firstly, there is no doubt that the responsibility of deciding what documents were to be disclosed was wholly that of the Tribunal.

When, as recorded above, counsel for another party asked Mr. Gilmartin’s consent to the inspection of prior statements the Chairman,

the first-named respondent, said:

“It is not a matter for Mr. Gilmartin to consent or not to consent to. It is a matter for the Tribunal to decide what

documentation can be referred to.”

21. In a further exchange the Chairman said, in a passage which is the origin of some of the phrases quoted above:

“Any significant or glaring inconsistency between information furnished to the Tribunal on a confidential basis and

compared to that furnished by way of a narrative statement or indeed in oral evidence would be brought to the attention

of the Tribunal, and that is the extent to which we would have any cause to consider information already given by the

witness… the Tribunal would not conceal from interested parties information that would suggest that there is glaring

inconsistency between an account given on a previous occasion privately to the Tribunal and one given publicly because

that would clearly be wrong”. (Emphasis added)

22. The formal ruling of the 24th March, 2004, is set out in my judgment in the first judicial review, at pp 49 - 51 of the Report.

The withheld documents.

23. On the hearing of this appeal counsel for the applicants produced a list of twenty classes of withheld information. I did not

understand this list, which was contained in the written submissions, to be disputed in itself, although of course the significance of

certain of the material was hotly disputed. For the purpose of this hearing, however, it is not necessary to go into all of this material.

Counsel for the applicants Mr. Paul Gallagher S.C. went through seven categories which he regarded as the strongest and very aptly

conceded that if he did not succeed on the basis of these documents, this aspect of the case was not likely to be materially

strengthened by the rest.

24. This material may be subdivided into two categories. The first is composed of material bearing directly on allegations made by Mr.

Gilmartin in public sittings against Mr. O’Callaghan and/or Mr. Deane. The second category is composed of material which may or may

not significantly involve Mr. O’Callaghan but is so serious, so dramatic, and/or so manifestly false that, it is alleged, the failure to

disclose it deprived Mr. O’Callaghan and Mr. Deane of material of obvious utility in attacking Mr. Gilmartin’s credibility, as they had to

do.

25. Most if not all of this second category of material relates to third parties and it is, in the main, material which the Tribunal has

decided not to make the subject of public inquiry. Very properly, it was dealt with with great delicacy by both sides of the hearing of

this appeal because of its manifest capacity unfairly to damage those parties. I propose to deal with it only in very general terms in

this judgment. I shall later consider whether this aspect of the material - its potential to damage third parties - is itself a ground for

withholding it from a person in the position of the applicants.

26. I now turn to consider certain material in the first category:

(1)

27. It will be recalled that Mr. Gilmartin denied that a contract shown to him by the Tribunal bearing the date the 31st January, 1989,

and being an agreement between himself and Mr. O’Callaghan or the O’Callaghan interests, was in fact the document which he had

signed. He said this although, as Tribunal counsel said, he himself had given the document to the Tribunal. In evidence, he stated

that the document produced to him had been falsified by Mr. O’Callaghan and his solicitor, Mr. Deane, so as to alter its terms.

28. There is no need to emphasise the seriousness of an allegation of fraud and forgery (for that is what it indisputably amounts to)

against a solicitor and a major businessman. This was an allegation of serious criminality. It would be utterly destructive of the

reputations of both and of the career of the solicitor if it were accepted in the terms in which Mr. O’Callaghan made it. Judging from

the record of the proceedings, the Tribunal itself took the allegation extremely seriously, secured the production of the solicitor’s file,

required a statement from the solicitor and caused or permitted both the solicitor and Mr. O’Callaghan to be cross-examined at length

on the subject.

29. At all material times, from a time long before the first making of this allegation, the Tribunal were in possession of two separate

previous accounts of this document by Mr. O’Callaghan. In these, Mr. Gilmartin gave accounts wholly at variance with the allegations

of fraud and forgery against Mr. O’Callaghan and Mr. Deane had been made.

30. The first of these is a transcript of an interview given by Mr. Gilmartin to Mr. Noel Smyth, solicitor, and which was later given by

the latter to the Tribunal. In construing this and the next statement, it is necessary to distinguish carefully between the various

solicitors who, at different times, acted for Mr. Gilmartin.

31. In the interview with Mr. Smyth, Mr. Gilmartin said:

“I left it to [a quite separate solicitor acting for him in 1989] to complete the contract and we omitted, he drew up the

contract and it was totally one sided including the final payment being subject to planning and when the zoning came up

for this site to go in for rezoning”.

32. In 1998, almost five years before his public evidence to the Tribunal, Mr. Gilmartin had attended a meeting in Luton, England, with

counsel for the Tribunal. Mr. Gilmartin was accompanied by two solicitors from the firm of Eugene F. Collins, who were then his

solicitors. On this occasion Mr. Gilmartin was noted as saying, on the topic of why, as he claimed, the contract did not represent

what was actually agreed:

“and through the negligence of [the solicitor mentioned above, who was acting for him in 1989] the contract which Mr.

Gilmartin actually signed provided that £1.35 million should be paid in October, 1989, and a further £1.35 million on the

31st January, 1990.”

33. Accordingly, Mr. Gilmartin had made an allegation that the aspects of the contract which were unacceptable to him, because they

were contrary to what had been agreed, were the result of falsification by Mr. O’Callaghan and Mr. Deane. But he had previously

attributed the unsatisfactory aspects of the contract, not to falsification, but to negligence on the part of his then own solicitor. A

more significant, glaring or gross inconsistency can hardly be imagined. It must be recalled that his allegations went so far as saying

that the document produced was not the document he had signed, as a result of falsification. But the matter did not end there.

34. Mr. Gilmartin was specifically cross-examined on the question of why he had not made to the Tribunal in private session, by

correspondence or otherwise, the falsification allegation he had made in public sitting. The observation of counsel for the Tribunal,

quoted above, made it clear that he had not done so. But he claimed that he had in fact made the allegation:

“I am reasonably certain that I told Mr. Hanratty and Mr. John Gallagher [both senior counsel to the Tribunal at the

material time] that, and I told them that in Luton and I am reasonably sure I did”.

35. Later on the same day he said “I did tell the Tribunal, I am reasonably sure I did get, but I may have omitted it in the statement.”

36. It was then put to him that this allegation had surfaced for the first time in his evidence and he answered:

“No, I told the Tribunal officials the full, complete statement of how Mr. O’Callaghan held me to ransom twice and how he

managed to do it with the help of his, well honourable solicitor”.

37. The effect of the cross-examination on this point was to allege that Mr. Gilmartin’s account was false, and was a recent

invention. Under the Rules of Evidence which prevail in civil or criminal courts, a witness cross-examined along those lines can prove a

previous consistent statement so as to rebut the cross-examiner’s allegation. The Tribunal is not bound by the ordinary Rules of

Evidence, but it allowed Mr. Gilmartin to make this claim to have made a prior consistent statement and it would have been entitled to

do so if what was said about the prior statement were true. I have to say that I simply cannot understand:

(a) How, having permitted this grave allegation to be publicly made it did not disclose the prior inconsistent statements of

which it was affirmatively aware. I am far from holding that the duty to disclose material is limited only to material which

the Tribunal itself regards as containing inconsistencies which are significant gross or glaring. But even by that criterion

this is material that required to be disclosed.

(b) How the non-disclosure continued even after the witness had repeatedly stated that he had made the allegation

previously to the Tribunal, thereby fortifying his credibility in the eyes of his listeners. This happened at a time when the

Tribunal knew he had not done so, and that what he did say then was not consistent with what he said publicly in March,

2004.

(c) How the Tribunal continued to withhold this statement and asserted their entitlement to do so in the High Court and

the Supreme Court. This latter point may have a particular relevance in view of the claim in the present proceedings that

the Tribunal has made no final decision as to the significance of any material or the credibility of any witness.

38. The Tribunal says, quite accurately, that it took steps to obtain information from the applicants about this allegation. But that in

no way explains the non-disclosure by them of the prior inconsistent statements: to find the Tribunal’s answer to that one must turn

to its general defence in the present case, which will be considered below. I have no doubt that a failure to discover information of

this kind in a civil action based on the same facts, or to disclose it in a criminal prosecution, would be gravely wrong. The Tribunal

correctly says that it is not in the position of a party to litigation and denies that it is under any continuing obligation of disclosure or

discovery as a party to such litigation would be. This contention is addressed below.

(2)

39. Mr. Gilmartin’s account of the Buswells Hotel meeting, summarised above, will be recalled. The salient features were that the

meeting had taken place on the 28th December, 1988. Mr. Gilmartin said Mr. O’Callaghan demanded a meeting on that date. Tribunal

counsel suggested to him that the date did not very much matter, whether it was the 28th December or the 28th February but he

said “I am quite certain it didn’t take place any other day than 28th December”. Mr. Gilmartin was asked if he was in any way

uncertain about his recollection of events on that day to which he replied “No, I am absolutely certain”.

40. Mr. Gilmartin claimed that when he was alone with a named councillor in the bar of Buswells hotel, and Mr. O’Callaghan, Mr. Deane

and another person were in the bar but not in earshot, the councillor requested £100,000 from him. He then said that when he left

the bar he was followed by Mr. O’Callaghan who asked him “Did he tap you?” He said that he responded “What do you think?”.

41. There was no ambiguity about what the words attributed to Mr. O’Callaghan meant. According to Mr. Gilmartin “I understood that

as if he had tapped me for money, asked me for money”.

42. The later disclosed documents reveal that Mr. Gilmartin gave an account of this meeting on the 30th September, 1998, to John

Gallagher S.C., Pat Hanratty S.C. and Desmond O’Neill B.L. Counsel noted the meeting and on this topic the record is of Mr. Gilmartin

speaking as follows:

“I met [the councillor] in Buswells hotel one day in January, 1989 at 4.30pm. I met [a member of Dáil Éireann] the

following day. On Wednesday 29th January, 1989, I met [the councillor]. O’Callaghan was standing at the bar with [a

named architect]. I was told I had to meet councillors and this was arranged.”

43. Apart from the variation as to the date of the meeting, discussed below, this note does not mention a demand for £100,000 and

does not mention the remark attributed to Mr. O’Callaghan which is a damning one. It also does not mention the third person, another

Dáil Deputy, who was said in evidence to be in the company of Mr. O’Callaghan and the architect.

44. It transpires that the salient allegations, about being asked for money and Mr. O’Callaghan’s remark, were first made in a

statement made by Mr. O’Callaghan on the 25th May, 2001, almost three years after his (apparently) first mention of the meeting,

when he failed to mention these topics at all.

45. The significance of this for cross-examination, as to the facts and in relation to credibility, is manifest. Even the least apparently

significant contradiction - that between the 28th December and the 28th January - is important. It is in the nature of things unlikely

that the parties implicated by Mr. Gilmartin would be able to say where they had been on a date in January some fifteen years

previous to Mr. Gilmartin’s evidence. But Christmas is a special time and people may have long standing habits as to where and with

whom they spend the season. Indeed, there was cross-examination of various witnesses as to the likelihood of their having been at

such a meeting over the Christmas period. Tribunal counsel attempted to suggest that the actual date might not be very significant:

“it wouldn’t matter very much in one way whether it took place on the 28th December or 28th February - Do you follow?.”

46. But it is the other contradictions that are of salient importance.

47. In submissions on this point the Tribunal emphasised the possible inaccuracy or incompleteness of the notes of the meeting in

1998, at which Mr. Gilmartin gave an account of the Buswells Hotel affair which did not implicate Mr. O’Callaghan. They were, said Mr.

Michael Collins S.C., “jottings”. They have, however, the appearance of a full record. I refrain from attaching the text of the note to

this judgment only because of material about other parties in it. The Tribunal also submitted that the inconsistency as to the date

was not of great importance because the fact of the meeting was not in dispute. This submission ignores the two salient allegations

and, with respect, the date of the meeting is also important because if its inaccuracy could be demonstrated other things might

follow. For example, Mr. Gilmartin had apparently given to the Tribunal a diary showing an appointment with the councillor on the 28th

December, 1988: if this were false an obvious line of inquiry would be opened up. Tribunal counsel’s own question, quoted above,

clearly shows uncertainty, at least, as to the December date.

48. But the present issue is not as to how a cross-examination based on full information might have ended, but as to the fact that,

even by the Tribunal’s own criteria, here was a significant contradiction, It was never disclosed, despite a specific application for its

disclosure, until after the Supreme Court hearing at which its disclosure (together with all the other withheld documents) was strongly

resisted. I cannot understand why it was never disclosed prior to the order of this Court and in this regard would repeat, with the

necessary alterations, the comments I have made above as to the non-disclosure of the prior inconsistent statements about the

allegedly altered contract.

49. I would add that a reading of the transcript suggests that the Tribunal took this allegation seriously and devoted considerable

time to it. In the course of this, an observation was made by one of the members of the Tribunal which is independently relied upon

by the applicants here. I will not however interrupt the survey of the withheld documents to consider this allegation but will return to

it briefly later in this judgment.

50. Finally, it should be recalled that, on the hearing before this Court of the appeal in the earlier judicial review proceedings, counsel

for the Tribunal specifically said that in referring to “significant gross or glaring” inconsistencies, the Tribunal had in mind, inter alia,

inconsistencies arising by omission. I understand that to be a failure to state a fact, subsequently alleged in evidence, at an earlier

time when one might expect it to have been stated. It has not been contended that these allegations were in fact made to counsel

at the 1998 meeting but for some reason not recorded. On other topics, however, counsel’s recollection of meetings have been put in

evidence.

(3)

51. Amongst the most memorable allegations made by Mr. Gilmartin was one about a visit made by him to Leinster House in February,

1989. He described being led into a room where he found the then Taoiseach and a number of Ministers. With one of those present in

particular he had a brief conversation. As he was leaving, an unidentified man allegedly approached him in the corridor and suggested

that he make a payment of £5 million, giving him a piece of paper which he said had the number of a bank account in the Isle of Man

written on it. Mr. Gilmartin said that he rejected this approach in colloquial terms. As he walked away the man tapped him on the arm

and said “You could end up in the Liffey for that statement”. When he described this in evidence he was asked about the manner of

his leaving Leinster House and he mentioned only one person by name as having been there as he left, a man called Walsh.

52. Neither in the opening of this module by counsel for the Tribunal nor in the examination of Mr. Gilmartin nor in questioning any

other of the numerous witnesses called on this topic was any mention made of Mr. O’Callaghan in connection with Mr. Gilmartin’s visit

to Leinster House.

53. Notwithstanding this, amongst the documents now disclosed is a note of a telephone conversation of the 3rd June, 1999,

between Mr. Gilmartin and Pat Hanratty S.C., then one of the counsel to the Tribunal.

54. According to Mr. Hanratty’s note what Mr. Gilmartin then said about the visit to Leinster House is as follows:

“However, at one stage he saw Albert Reynolds talking in an alcove to OOC [Owen O’Callaghan]. TG [Tom Gilmartin] had

decided to leave and saw this on his way out. OOC called him back and asked where he was going. TG said he was fed up

with him and his gangster friends. OOC said that neither he nor any Unionist would put a foot on Quarryvale”.

55. It will be clear that this inconsistency is of a kind which is the mirror image of that identified on the Buswells Hotel issue. There,

the withheld document showed that Mr. O’Callaghan had first given an account of events which did not implicate Mr. O’Callaghan, and

then proceeded to implicate him later on. Here, the withheld documentation shows that Mr. O’Callaghan had originally been placed in

Leinster House, in the company of a very prominent politician, at a time when an outrageous demand had allegedly just been made of

Mr. Gilmartin. The conversation which Mr. Gilmartin then reported between them speaks for itself, in the context of the other evidence

he gave about what was said and done when he was in Leinster House.

56. This allegation simply dropped out of sight. A number of very prominent witnesses were called about the visit to Leinster House,

including Mr. Reynolds himself. It was never suggested to any of them, or to Mr. O’Callaghan himself, that he had been present in

Leinster House on the occasion in question.

57. This was the second allegation by Mr. Gilmartin that Mr. O’Callaghan had been nearby, but not physically present, when a demand

for a large sum of money had been made by way of corrupt payment by another person. On each occasion, there was attributed to

Mr. O’Callaghan a remark consistent with knowledge of what, allegedly, had just occurred. But for whatever reason, in this instance

the allegation was simply not pursued, insofar as it related to Mr. O’Callaghan.

58. It is not possible to think of any reason for the non-pursuit of this allegation other than that the Tribunal did not consider it

credible. The £5 million demand was clearly within its terms of reference and was regarded as a significant matter, as can be seen

from the transcripts.

59. The fact that an allegation made by a witness is regarded as untrue, or incapable of being supported in evidence, is emphatically

not a reason for denying to a person against whom the same witness is making other serious allegations, knowledge of the fact that

he has also made a different, implausible or insupportable, allegation. If this allegation is untrue it plainly speaks to Mr. Gilmartin’s

accuracy or credibility or both.

60. The Tribunal submits that it was of the view that the occasion referred to in Mr. Hanratty’s note of what Mr. Gilmartin said in

June, 1999 related to a different meeting to that described as happening in Leinster House in February, 1989. This would indeed have

been a remarkable reading of the memorandum in question and one which it is difficult to believe could have long survived having

regard to the importance of the occasion upon which the £5 million was allegedly demanded. This importance is clearly established in

the Tribunal’s records.

61. Mr. Noel Smyth, in his recorded interview with Mr. Gilmartin described the meeting after which the £5 million demand was alleged

made as the “ famous meeting in the Dáil”. Mr. Gallagher SC, in opening the Quarryvale I Module on the 3rd March, 2004 just a few

days before Mr. Gilmartin’s evidence, plainly and unambiguously said that the demand for £5 million pounds was allegedly made

immediately after Mr. Gilmartin’s visit to the room where he met, or at least saw, a number of ministers. (Day 455). In Mr. Hanratty’s

memorandum of a telephone conversation with Mr. Gilmartin of the 3rd June 1999, he recorded:

“TG then referred to the meeting in Dail Eireann to which he was brought by Liam Lawlor. He was adamant that this took

place on the 1st February 1989. There is a record of it in Tom Gilmartin’s 1989 diary.”

62. Mr. Gallagher’s opening statement gave the background to the meeting as a conversation with Mr. Lawlor and said that Mr. Lawlor

took him into the Dáil and then took him into the room where the ministers were.

63. Mr. Hanratty’s memorandum went on to describe Mr. Gilmartin’s attendance in the room where the ministers were and his

conversation with one of those present and went on to say:

“After the meeting a number of other things happened which are described in previous memos. However, at one stage he

saw Albert Reynolds talking in an alcove to OOC”.

64. The same memorandum then described his conversation with Mr. O’Callaghan as set out above.

65. I am driven to the conclusion that there is no scope whatever for ambiguity on the following propositions:

(a) Mr. Gilmartin said that the meeting after which the £5 million pounds demand was made occurred on the 1st February

1989.

(b) Mr. Gilmartin said that the demand was made after he had left the room in which there were several ministers with one

of whom in particular he had a conversation.

(c).Mr. Gilmartin said that his Dáil encounter with Mr. O’Callaghan happened after the meeting with the Ministers just

described and just after the €5 million demand, as he was leaving Leinster House.

66. I am therefore wholly at a loss to understand how any person acquainted with the detail of Mr. Gilmartin’s accounts could

seriously have entertained the view that the alleged conversation with Mr. O’Callaghan in Leinster House was attributed by Mr.

Gilmartin to any day other than the day on which the £5 million pound demand was made, which was the day on which he had been

brought into see the Ministers and spoken to one of them, which was the day on which he had been brought to Dáil Éireann by Mr.

Lawlor, which was the 1st February, 1989. Of course, anyone can become momentarily confused about detailed matters, even those

with which he is perfectly familiar. But any such confusion could only have lasted a matter of moments. It could not have lasted for

the days or weeks necessary for the confusion to be the basis, as alleged, of the refusal of the disclosure of the original account. Still

less could it have been shared over so long a period by the number of people necessary for it to have been the basis for the non-

disclosure - the three Tribunal members and their large legal team. I am driven to conclude that the account given, on a hearsay

basis, of the reason for the non disclosure of the original document [by Ms. Susan Gilvarry in her affidavit of the 23rd January, 2006]

is, on the balance of probabilities, quite inaccurate. I attribute this to lapse of time, which has clouded the Tribunal’s memory.

67. The reason why the making of an inconsistent false or dubious allegation requires to be disclosed to a person confronted with

another allegation by the same accuser is quite obvious. Depending on the context, the making of a previous false or inconsistent

allegation may indicate express malice against the victim of that allegation or, if the subject of the earlier allegation was a different

person, may indicate a generalised malice or a tendency to lie or to fantasise. In Wall v. DPP [2005] IE CCA 140, Ms. Wall had been

sentenced to life imprisonment (and a Mr. McCabe to twelve years imprisonment) for rape. The conviction was set aside by consent,

and later deemed to have been a miscarriage of justice under the terms of the Criminal Procedure Act, 1993. This happened for a

number of reasons, including the failure to disclose that an alleged eye witness to the rape had herself made dubious allegations of

rape against another person some years earlier. Subsequently, the witness admitted that the whole of her evidence was an invention,

put forward because of a grievance felt against Ms. Wall who had been a teacher of the alleged victim and the witness. But, in the

absence of information (the previous false allegation) which might have undermined the credibility of the witness, her false evidence

had stood up to scrutiny at trial.

68. I wish to emphasise that the manifest utility of evidence of previous false or inconsistent allegations is a matter of ordinary

experience, by no means confined to the context of a criminal (or indeed a civil) trial. It is a matter of natural justice and elementary

fair procedures that a person accused of very serious things in a public forum be given all relevant information in the possession or at

the disposal of the enquiring body for use in an attempt to vindicate himself. The Tribunal, to put it mildly, seemed unimpressed by

this basic proposition.

(4)

69. As has been seen above, the basis of Mr. Gilmartin’s animus against Mr. O’Callaghan and his associates was a belief that the

O’Callaghan interests had overreached him with the assistance of his bank and put him into a position where he was compelled to sell

lands, the development of which he had hoped would be very profitable to him. It was, apparently, on the basis of this belief that he

called Mr. O’Callaghan a crook and a blackmailer.

70. Mr. Gilmartin told his then solicitor, Mr. Noel Smyth, of a conversation which he had with Mr. Pat Hanratty, a Senior Counsel to

the Tribunal until 2001. He did this in the course of a long interview with Mr. Smyth which was recorded by the latter. The record of

this conversation, both written and taped, was then given by Mr. Smyth to the Tribunal. It appears that Mr. Hanratty had, alone or

together with other Tribunal lawyers, up to thirty private conversations with Mr. Gilmartin, between face to face interviews and

telephone conversations.

71. Mr. Gilmartin said to Mr. Smyth that Mr. Hanratty had said that his case against Mr. O’Callaghan and his associates was:

“that strong that they would have to open it again”.

72. Mr. Hanratty is also alleged to have said:

“[T]hat they will prove fraud against O’Callaghan and the bank. He said that they will prove it. But I don’t know whether

he is just saying it to get me talking”.

73. Mr. Smyth’s transcript of the same conversation emerges as follows:

Mr. Gilmartin:

“Hanratty - he was trying to tell me that my case was that strong that I would have to open it again.”

Mr. Smyth:

“I wouldn’t go against his view. I think that the answer is that if any revelations come out of this, it could well be

something you would have to look at.”

Mr. Gilmartin:

“They said they would come forward against O’Callaghan and the bank. I don’t know if he is just trying to get me talking”.

74. This conversation with Mr. Hanratty is said to have taken place on the 20th May, 1998.

75. The significance of this conversation is very great. If it actually took place as described by Mr. Gilmartin then it plainly provides a

motive for the latter to encourage and assist the Tribunal towards a finding of fraud against Mr. O’Callaghan so that the transactions

which ended so badly from Mr. Gilmartin’s point of view might be reopened. But if the conversation did not take place as alleged, the

significance of Mr. Gilmartin’s statement is at least as great. It means that Mr. Gilmartin had, in his own mind, attributed something to

Mr. Hanratty S.C. which the latter had never said. He had, in other words, invented it.

76. In its opposition to the present application for judicial review the Tribunal have stated for the first time that it has been informed

by Mr. Hanratty S.C. that at no time did he say any such thing. This denial was put on record on the 23rd January, 2006. Prior to

that date, the Tribunal had dealt with this matter in a neutral fashion by saying that if Mr. Hanratty had said such a thing it was at a

time when the Tribunal were attempting to secure Mr. Gilmartin’s evidence for the Tribunal: he lived abroad and could not be

compelled to attend. The Tribunal did not assert the falsity of Mr. Gilmartin’s statement in this regard for a period of some eight years

after it was made. Subsequent to the receipt of Mr. Gilmartin’s statement by the Tribunal, Mr. Hanratty had numerous interviews with

Mr. Gilmartin and, judging by the record of these interviews no contradiction or correction of Mr. Gilmartin’s statement was made.

77. On the hearing of this appeal the Tribunal invited the Court to accept implicitly Mr. Hanratty’s denial and I would unhesitatingly do

so. This has the consequence that it must be accepted that Mr. Gilmartin invented an important statement which in fact was never

made at all. He invented it, presumably, because he wished to believe that the Tribunal would establish fraud against Mr. O’Callaghan

thereby allowing him to reopen his long running dispute with the very person against whom he was making grave allegations.

78. As with the other documents discussed in this section of the judgment, the interview with Mr. Smyth was not disclosed until after

the earlier judicial review proceedings. But even after disclosure the salient fact that what Mr. Gilmartin was said was false was not

itself disclosed until January, 2006 and this disclosure occurred only in the context of the Tribunal’s defence to the present

proceedings. In other words, if the present proceedings had not been taken Mr. O’Callaghan would have found himself back before the

Tribunal without the knowledge that this statement was false.

79. The ability of Mr. Gilmartin to invent important conversations is of particular relevance because of a passage in the cross-

examination which took place in March, 2004. Dealing with another allegation made without notice by Mr. Gilmartin, relating to the Lee

Tunnel, counsel for Mr. O’Callaghan put it to him that his account of a meeting in December, 1988 was “a creature of your own

imaginings”. To this Mr. Gilmartin made the following remarkable reply:

“No. No, there is things, which was in my imagination that does exist that I invented, and if you would like to know about

them I will tell you. But they were creatures of my imagination, but this definitely isn’t. I don’t need to reduce myself to

petty little gossip”.

80. The Tribunal’s submission on the issue of the alleged statement of Mr. Hanratty was to say, as outlined above, that it had been

informed by Mr. Hanratty that he had said nothing of the kind. But this simply fails to address the salient point: Mr. Gilmartin’s

account of the conversation is very important whether it is true or not. Indeed, it is probably more important on the basis that it is

false: it is evidence, which the Tribunal must accept that Mr. Gilmartin is capable of invention, of hearing what he wants to hear and

recalling that which he wants to recall.

(5)

81. Another un-notified allegation made by Mr. Gilmartin to the Tribunal related to the Lee Tunnel. Counsel for the Tribunal had asked

Mr. Gilmartin about Mr. O’Callaghan’s “connections”. Apparently by way of illustrating those connections Mr. Gilmartin gave a

circumstantial account of a conversation with Mr. O’Callaghan on the 7th December, 1988. He said that on that occasion Mr.

O’Callaghan told him that he had just come from a dinner for the launch of the Lee Tunnel and that he had had the line of the tunnel

altered so as to suit a named site (the Mahon site) that he owned. Counsel for the Tribunal, Mr. John Gallagher S.C. then said “You

haven’t told us about this before”. Later, when counsel for Mr. O’Callaghan attempt to cross-examine on the basis that the decision

to construct a tunnel was not made until 1991, work did not commence until 1995 and the tunnel did not open until 1999, another

counsel for the Tribunal, Ms. Patricia Dillon S.C. objected saying:

“I am not aware of any documentation furnished at the Tribunal in relation to the matters presently being cross-examined

by my friend (i.e. Mr. Sreenan S.C., counsel for Mr. O’Callaghan). If there is any such documentation, and I presume there

is seeing as he is being so precise about the dates, it is subject to the same rules of the Tribunal; and again this is not

something that has been furnished to the Tribunal and is, I think, comes within the four walls of the previous ruling… none

of this material has been furnished at the Tribunal. And it is only the Tribunal who decides what materials will be

circulated… the Tribunal should have been provided with an additional statement from Mr. O’Callaghan that deals with this

matter that could be circulated… in other words there are no surprises here”. (Emphasis added).

82. To this Mr. O’Callaghan’s counsel said:

“Chairman I am not referring to documentation but I think this objection is quite misconceived. Mr. Gilmartin was the

person who introduced this piece of evidence, it wasn’t in his statement. Ms. Dillon has not provided us with an additional

statement of Mr. Gilmartin’s evidence, it seems one rule applies to Mr. Gilmartin and one rule applies to those who wish to

cross-examine; on a large number of occasions he introduced additional evidence, I am not referring to any document, if I

was referring to a document I would have complied with the Tribunal’s rules - provided it to the Tribunal. I am simply

putting facts to the witness”.

83. This is a very significant exchange which will be further discussed later in this judgement. But its relevance for the present

purpose is that two counsel for the Tribunal, Ms. Gallagher and Ms. Dillon, asserted that “You [Mr. Gilmartin] haven’t told us anything

about this before” and “I am not aware of any documentation furnished at the Tribunal in relation to the matters presently been

cross-examined by my friend”. Both of these comments relate to the Lee Tunnel allegation.

84. In fact, based on the documentation disclosed as a result of the earlier judicial review, Mr. Gilmartin had on the 25th November,

1999, told Mr. Hanratty S.C. in the course of a telephone conversation:

“[T]hat OO’C [Owen O’Callaghan] had more power than people realised. The original plan for the Cork tunnel was altered

and rerouted so that it came out on land owned by OO’C. CJH was behind this change.”

85. Mr. Gilmartin is then recorded as saying “that we can easily verify this.”

86. In the 4½ years between this conversation with Mr. Hanratty and Mr. Gilmartin’s oral evidence, the Tribunal, according to the

affidavit of its solicitor “did not investigate that allegation at that time”.

87. This is bewildering. There is no assertion that the Tribunal investigated the allegation at any other time, and it certainly did not

form part of the matters of which Mr. O’Callaghan was put on notice. It came within the time frame of the Quarryvale I module.

88. On the face of it, this is another example of the Tribunal’s practice of putting forward certain allegations while withholding the

information that the accusing party has made different allegations which are, apparently, lacking in credibility. But in this case there is

the added element that counsel for the Tribunal stated publicly that Mr. O’Callaghan had not told the Tribunal anything about this

allegation, which is manifestly not true.

89. The reason given for this by the Tribunal is that “Counsel did not immediately realise” that the Cork tunnel and the Lee tunnel

were the same thing. This, on any account, is an extraordinary confusion, and it is not said that it extended to the Tribunal itself, or

to any of the other (numerous) Tribunal lawyers. It is not a piece of confusion that could have lasted any time at all since in fact

there is but one tunnel that could conceivably be in question. It is now known as the Jack Lynch tunnel. But given that the confusion

did apparently exist in the mind of counsel examining Mr. Gilmartin, it is extraordinary that in the very fraught discussions and

questioning that ensued on the topic it was not corrected. This document too was withheld until after the first set of judicial review

proceedings.

(6)

90. The next significant instance of withheld documentation related to another allegation which Mr. Gilmartin made without notice,

and of his own motion, at the public sittings, but later withdrew.

91. It will be recalled that amongst the most significant allegations was that relating to an alleged demand for a payment of £5 million

made by an unidentified person in Leinster House. After this allegation had been made, counsel for the Tribunal questioned Mr.

Gilmartin as to who he had told about this. He listed a number of persons. At the beginning of a subsequent day’s hearing he stated,

without being asked, that he had made:

“a notable omission, from a question asked by Mr. Gallagher as to who I told about the visit to the Dáil… I did inform Mary

Harney at a - it was a house warming party in Dalkey and I told her about what was going on. I had just forgotten. That’s

all, thank you”.

92. The Chairman then requested a supplementary statement about this allegation. It was not revealed that, at that time, the

Tribunal were in possession of a note by Mr. John Gallagher S.C., dated the 3rd October, 2002. This records that he had received a

telephone call from Mr. Hanratty S.C., who had left the Tribunal in 2001, to inform him that Mr. Gilmartin had said that he had met

Mary Harney at a party hosted by a named person in Killiney “quite a few years ago” and that he had told Mary Harney at that time

“what was going on”.

93. When this note was disclosed, as a result of the earlier judicial review proceedings, the name of the person in question was

redacted. As a result of a further hearing before Mr. Justice O’Neill in July, 2005 this redaction, and another to be discussed below,

was removed.

94. The Tribunal also had in its possession, but did not disclose, a memorandum of Mr. Hanratty of the 28th June, 2000. This recorded

a telephone call from Mr. Gilmartin to Mr. Hanratty in which the former said that he had received certain information from a friend of

his on another topic and that it was in his friend’s house that Mr. Gilmartin had met Mary Harney at a party. There was no allegation

about having told her “what was going on”. When the redaction of the names was removed by O’Neill J. it transpired that in the earlier

statement of the 28th June, 2000, in which there was no suggestion of any disclosure to Ms. Harney, the host of the party in

question was named. In the later statement, where there was an allegation of having told Ms. Harney what was going on, the party

was said to have been in Killiney and was given by another named person with the same initials. While one can easily understand the

confusion of two similar names, the distinction is a vital one, because, as it transpired, the party at which he had actually met Ms.

Harney happened before the alleged events in Leinster House.

95. This salient fact became clear to Mr. Gilmartin or his advisers in the period after he had made the allegation about having

disclosed “what was going on” to Ms. Harney. On the 24th March, 2004, Mr. Gilmartin read a statement to the Tribunal as follows:

“In my evidence to the Tribunal, I told the Tribunal that I had told Ms. Harney about my visit to the Dáil. However, having

reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and the

Ministers in Dáil Éireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that

evidence to the Tribunal, I may have been confused with another house warming party which also took place in Dalkey a

year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms.

Harney was not present at the second house warming.

Therefore, Ms. Harney was not one of the people that I told about a meeting with the then Taoiseach and the Ministers in

the Dáil and about the demand made for £5 million.”. (Emphasis added)

96. The Tribunal’s reaction to this very significant withdrawal of a very significant allegation was simply to say “Thank you very

much”. No attempt was made to explore how so grave an allegation was made in unqualified terms, after time for thought, when it

was in fact quite false.

97. In my judgment in the earlier judicial review, given at a time when the Court had not seen the withheld documents, I commented

on the above chain of events as follows at pp 42 - 43:

“It is noteworthy that the notice party’s [Mr. Gilmartin] change of mind on this important matter was caused by the

discovery by the notice party or his advisers of a fact in direct contradiction to the evidence he gave. This was that the

party at which he had said he had met Ms. Harney actually took place prior to the date of the meeting which he alleged

occurred in Dáil Éireann. It is also noteworthy that the notice party completed his statement and his initial evidence

without mentioning Ms. Harney as amongst the people he had told of this truly dramatic alleged demand but he had

subsequently become so convinced that he had in fact told her that he interrupted the proceedings on another day to

make that point”.

98. Having now seen the withheld documentation, further questions arise. Why were the previous statements in the possession of the

Tribunal not immediately disclosed at least when the allegation was publicly made? Furthermore, even after the allegation had been

withdrawn, they continue to be withheld, thereby frustrating any detailed inquiry as to how precisely Mr. Gilmartin had come to

convince himself that something had happened when in fact it had not. This is a question vital to his accuracy and credibility

generally. Still further, when the documents were compelled to be disclosed in the previous judicial review the Tribunal redacted the

names of the two individuals, thus foreclosing further inquiry on the point.

99. It is clear from the terms that Mr. Gilmartin’s retraction ( “Mary Harney was not one of the people that I told about a meeting with

the then Taoiseach and the Ministers in the Dáil and about the demand made for £5 million”) that his earlier reference to “what was

going on” related to the demand for £5 million.

100. Accordingly, I have difficulty in understanding the Tribunal’s submission on this topic, that there was no “explicit reference” to

the “£5 million demand in the memoranda of the conversations with counsel”. It was plain from Mr. Gilmartin’s allegation that he was

adding the name of Ms. Harney to those whom he had told about “the visit to the Dáil” where that demand was made. There was no

other mention of any meetings with Ms. Harney in the disclosed documentation. The Tribunal also says that it was not clear to it

whether one of the attendances by counsel recorded a statement by Mr. Gilmartin or an observation by counsel. This is impossible to

understand as the earlier attendance states “TG said” and the later one states “John Gilmartin says”. Since the memorandum is of an

account given by one Tribunal lawyer to another of a conversation with Mr. Tom Gilmartin, it is clear that the Christian name is an

error. It is clear, in my view, that none of the statements attributed to Mr. Gilmartin in those memoranda could reasonably be

construed as observations by counsel.

101. This is quite clearly a significant contradiction which was undisclosed.

Other withheld material.

102. I turn now, briefly, to other classes of withheld material. In the case of this category of document, it is not desirable, for the

reasons set out at the start of this section of the judgment, to go into any great detail. This is principally in the interests of third

parties and their families. It must, however, be recorded in general terms that Mr. Gilmartin also at different times alleged that Mr.

O’Callaghan connived at the appointment of an important public servant to a position of significance in his own interest; that three

well known persons received bribes from Mr. O’Callaghan and that these were lodged into offshore accounts in various named places:

that the “demise” of a deceased former office holder “was brought about indirectly by Owen O’Callaghan”, and that a named solicitor

and other named parties were instrumental in seeking the resignation of another holder of public office in return for a large money

payment. Only in the case of the latter allegation is there evidence of any level of investigation of these allegations, and that

procured a denial from the solicitor allegedly involved.

103. This concludes the survey of undisclosed documentation on which the applicants principally rely.

Significance of the foregoing.

104. The preceding section of this judgment sets out in perhaps tedious detail examples of statements by Mr. Gilmartin to the Tribunal

or its counsel which have been withheld by the Tribunal from Mr. O’Callaghan, and apparently from other people who are the subject

of allegations from Mr. Gilmartin. I shall shortly turn to the general justification advanced by the Tribunal for what it did. But before

doing that I intend to consider the general effect of what was done on a person seeking to defend himself against allegations by Mr.

Gilmartin.

105. The statement of Mr. Gilmartin served on Mr. O’Callaghan represented only a tiny part of what the former had said to the

Tribunal. In part this was due to the rigid modularisation adopted by the Tribunal, on which I will comment below. But it was also due

to a positive decision by the Tribunal to withhold aspects of what Mr. Gilmartin had told them, even where the withheld material was

directly in conflict with an allegation of his into which they were going to inquire. A striking example of this was the withholding from

Mr. O’Callaghan of the earlier account of the Buswells Hotel event, which did not make any allegation at all against him. On the

hearing of this appeal, counsel for the Tribunal said that they regarded the earlier material as being “of marginal importance”.

106. The Tribunal were thus, in March, 2004 presenting a witness (Mr. Gilmartin) whose evidence they intended to be limited to that

small part only of what he had told them that they wished to present at that sitting. This plan, whatever its intrinsic merits or

demerits, became impossible to follow when Mr. Gilmartin made multiple unscripted allegations against Mr. O’Callaghan. The Tribunal

did not stop him from doing this.

107. The Tribunal then had to consider a transformed situation. It had ample time to do so between Mr. Gilmartin’s direct evidence

and the eventual ruling of the 24th March, 2004. It decided, for reasons discussed below, to make absolutely no further disclosures to

Mr. O’Callaghan even though it knew that it had in its possession information which in some cases was directly contradictory of

allegations made and in other cases information which gravely impugned Mr. Gilmartin’s credibility.

108. One has therefore to consider two separate decisions which the Tribunal made in relation to the withheld documentation. The

first, taken at some stage before the circulation of the “brief” for Quarryvale 1 in January, 2004, was to delete certain material on the

grounds of irrelevance. No other ground was relied upon for withholding documents at that stage. The second and quite separate

decision was to withhold material which manifestly related to allegations made by Mr. Gilmartin in his evidence in March, 2004 or

related to his credibility which was then (if not before) manifestly a central issue for the Tribunal.

109. It is of great importance to note that the Tribunal says that material not circulated to those involved, as well as material relating

to allegations which do not proceed to public hearing, would be entirely excluded from its considerations and that it will have no

regard whatever to it at any state of its deliberations. This has the consequence, for example, that in considering Mr. Gilmartin’s

allegation about the falsified contract, the Tribunal would have paid no attention whatever to the fact that he had earlier attributed

the deficiencies in the contract, not to falsification by Mr. O’Callaghan and Mr. Deane, but to the negligence of his own solicitor. It

would simply have ignored the fact that he had advanced an inconsistent account. Similarly, in assessing the credibility of his

allegations which proceeded to public hearing it would entirely ignore improbabilities or even impossibilities in allegations which the

Tribunal itself had decided not to bring to public hearing.

110. The applicants’ case is in a large measure based on this proposition: that a rational inference from the Tribunal’s two decisions to

suppress evidential material of the sort exemplified above is that there now exists reasonable grounds to apprehend that the Tribunal

have prejudged the issues to which that material relates. In order to assess this contention it is necessary now to turn to the

Tribunal’s account of the reasons for what it did.

Substantive answer of the Tribunal.

111. The Tribunal now accepts “that the approach which it took to the disclosure of documents prior to the decision in O’Callaghan v.

Mahon Tribunal 2004/324 JR was incorrect”. But it says that the mere fact that it proceeded in error is not sufficient to demonstrate

a reasonable apprehension of bias: “The fact that it was wrong in its assessment of what was required by fair procedures cannot

itself form the basis of a reasonable apprehension of bias by the applicants”. Moreover it says that its previous approach, though

wrong, was not unreasonable and was adopted bona fide. It further submits that “the opportunity for cross-examination of Mr.

Gilmartin is now there” (emphasis added). It says that, as a result of the earlier judicial review proceedings, “the applicant has now

obtained all the documents sought by him to enable him to complete an effective and unhampered cross-examination of the party

making allegations against him it is significant that the first-named applicant is now in the position he sought to be in and can avail of

the opportunity to vindicate his good name against any false allegations which are alleged to have been made”.

112. Accordingly, the substantive answer of the Tribunal to the merits of the applicants’ case may be summarised as follows:

The Tribunal undoubtedly made a significant error in the period leading up to the public hearings of March, 2004 by

misconceiving what the requirements of natural duty were in relation to making a person against whom Mr. Gilmartin made

allegations aware of previous statements by him in the possession of the Tribunal. But this error was a bona fide one and

was not unreasonable in the light of previous case law. In any event, and most significantly, it can now be rectified

because, as a result of the previous judicial review proceedings Mr. Gilmartin now has precisely what he asked for in

March, 2004: Mr. Gilmartin’s previous statements on the topic of the allegations he made. It is true that he had to have

recourse to the High Court to get this information, and subsequently to defend the decision in his favour against the

Tribunal’s appeal to the Supreme Court but that is irrelevant: the Tribunal made a bona fide error but can now sit with the

appearance and reality of impartiality to conclude its business on Quarryvale 1 and address other relevant matters. Mr.

Gilmartin can now conduct or have conducted any cross-examination he wishes based on the newly available material,

and can make such submissions as he wishes about the facts.

113. The Tribunal also makes a number of submissions of a more technical kind, specifically to the effect that a decision in the course

of the discharge of its functions, even a seriously mistaken one, cannot, on the basis of the legal authorities of the subject,

constitute material which could ground a reasonable apprehension of bias. This will be dealt with separately below.

The case actually made by the applicants.

114. I did not understand the applicants at any stage to make the case that, merely because the Tribunal had made a grave error in

assessing what the requirements of natural justice required in the way of disclosure, that in itself gave rise to a reasonable

apprehension of bias. Accordingly, a significant part of the Tribunal’s substantive answer seems to me to address a case not actually

made. The case made was a different one. It might be summarised as follows:

The Tribunal, by virtue of a grave legal error, significantly misdirected itself as to its obligations in the period leading up to

the public hearings of March, 2004. Specifically, it withheld material from the applicant based on this misconceived view of

its obligations.

Now, after prolonged litigation, the applicants finally have available to them a considerable body of material which the

Tribunal has previously suppressed. It is the nature of that material, and not any previous legal error which may have led

to its being withheld, that has caused the applicants to entertain what they say is a reasonable apprehension of

prejudgment on the part of the Tribunal. The applicants say that, by the criteria for disclosure which the Tribunal had

itself declared that it would apply, the failure to disclose this material gives rise to an apprehension of prejudgment which

is more than reasonable.

115. The Tribunal’s defence both to this and to the previous application for judicial review was grounded on what it said were the

appropriate legal principles, rather than on a detailed analysis of the material which it held. Indeed, on the hearing of the earlier

judicial review senior counsel then appearing for the Tribunal (who was not engaged in the Tribunal hearings themselves) expressly

stated that he was himself unaware of the contents of the material which had been withheld. The learned trial judge on this

application considered it unnecessary to analyse this material, for the reasons he set out. But the case for the applicants was heavily

based on a detailed analysis of the contents of the material and, in view of that, the Tribunal did in fact address the nature of the

withheld material both in oral and in written submissions.

Necessity to look at the material.

116. In view of the nature of the case I understand the applicants to be making, summarised above, I have found it necessary to

examine certain of the withheld material and the fruits of that examination is set out at some length above. There is of course no

doubt that it is now open to Mr. O’Callaghan and the other applicants to have their accuser cross-examined on the basis of the newly

disclosed material, but that is not the question. The question is whether the apprehension of prejudgment which the applicants have

deposed to is a reasonable one. A nuanced difference of a legal nature on the criteria to be applied to addressing this issue emerged

between the parties on the hearing of the appeal and this, too, will be dealt with below.

Significance of previous inconsistent statements.

117. In my judgment in the earlier judicial review (now reported at [2006] 2 IR 32) I explained at some length the long acknowledged

significance of prior inconsistent statements of a witness, for the purpose of cross-examination. In Maguire v. Ardagh [2002] 1 I.R.

385 I have previously explained the significance of the right to cross-examine itself, a right which has often been the means of the

vindication of innocent people. See pp. 704 - 8 of the report.

118. In my judgment in the earlier judicial review I also discussed with citations of both statute law and case law the nature of the

significance, recognised for centuries at common law, of prior statements by persons whose veracity or reliability is in question in later

proceedings. I wish to incorporate this material, without setting it all out again in this judgment. I wish also to restate the conclusion:

a prior statement by a witness which is inconsistent with his subsequent testimony is one of the most effective and best and longest

recognised techniques for attacking that witness’s credibility. This is so regardless of whether the inconsistency is a positive factual

inconsistency or takes the form of an omission to state something relevant in the prior statement. See [2006] 2 IR 32 at pp54/60.

119. Although a certain amount of technicality has grown up around the circumstances in which a prior statement can be put to a

witness, the basic principle is not a technical one at all, but one grounded in ordinary fairness, common sense and every day

experience. If a person is shown to have freely given, on two different occasions, contradictory accounts of the same matter within

his own knowledge it follows that he was either lying or mistaken on at least one occasion. If the same person is shown to have given

such contradictory accounts on more than one occasion, clear questions arise as to his or her credibility or reliability. Any advocate

with experience of litigation with seriously contested factual allegations will have seen cases won and lost on this basis. Since the

Tribunal seems insensitive to the very great importance of prior inconsistent statements I propose now to refer to a number of very

recent examples taking place over a short period of time, to illustrate firstly, the significance of such inconsistencies and secondly,

how frequently that significance is demonstrated. These are in addition to the cases discussed in my judgment in the first Judicial

Review. I propose also to refer to an old Irish case, of great legal and political significance in its day, further to emphasise that the

significance of prior inconsistent statements has been recognised for centuries.

120. On the 30th January, 2007, the English newspapers reported the withdrawal of a libel action brought against the Sun newspaper

by a woman called Patricia Tierney. See, for example “Rooney Prostitute exposed as liar”, The Times, Tuesday January 30th, 2007.

This woman had been named as a prostitute by the tabloid newspaper in an article which she said meant that she had provided

services in that capacity to the well known footballer Wayne Rooney. She hotly denied this and issued libel proceedings. The collapse

of these proceedings occurred precisely because the Sun was in a position to prove a prior statement by Ms. Tierney inconsistent

with her claim not to be a prostitute. It appeared that in May, 2002 she had made a statement to police who were investigating

possible misconduct within the police force. She was told that the statement would be private unless it was used for disciplinary or

criminal proceedings. In her statement on that occasion she stated that she was a prostitute. In the later libel action, the Sun

obtained a copy of her previous statement by a process of third-party discovery. When the statement was produced, Ms. Tierney’s

lawyers withdrew from the case, on the basis that their client had misled them and the judge declined to permit the action to

proceed. It would, in my view, have been inconceivable that any court would have looked at this prior inconsistent statement and

then withheld it from the defendants. The statement did not, of course, positively prove that Ms. Tierney was a prostitute but it

made the case for that proposition so strong that her action became untenable. If the previous statement had not been produced,

then a case based on a total falsehood would have proceeded with the defendant grossly and unfairly handicapped in its defence by

being unable to prove the statement.

121. In late February and early March, 2007 the Moriarty Tribunal, which is a tribunal of inquiry legally and structurally very similar to

this one, was pursing certain inquiries as to whether or not a former office holder had an interest in certain English property. A

statement had been made to the police in the United Kingdom about issues relevant to this inquiry. Between the 28th February and

early March the person who had made this statement was intensively questioned by counsel for the Tribunal as to alleged differences

between the final version of the statement to the police and two earlier drafts of the same statement: this is recorded in the Tribunal

Transcript for 7th March, 2007, and reported in “O’Brien snr. ‘livid’ at ‘blackmail attempt’ ”, Colm Keena, The Irish Times 8 March 2007”

and “Inquiry told of altered statements”, Colm Keena, The Irish Times, 8 March 2007. I stress that I am expressing no opinion

whatever as to the merits of the Moriarty Tribunal’s inquiry or any issue arising in it. But it is a felicitous example, arising as this

judgment was being drafted, of the routine use of prior statements, possibly inconsistent, to test a witness’s account. In that

instance, the use of the allegedly inconsistent statement was by the Tribunal itself. Moreover, the Moriarty Tribunal anticipated such

use of possibly contradictory statements even before it had them. In the opening of the relevant module by counsel to the Tribunal

on the 15th of September, 2004, counsel referred to a statement of the witness and said:

“It appears that in a later statement to the English police [the witness] may have qualified or revised this statement. The

Tribunal has not yet been furnished with a copy of that statement.”

122. On the 21st March, 2007, a young woman was convicted in the Central Criminal Court of the manslaughter of another girl. Self-

defence and provocation were relied upon by the defence. A witness, the sister of the deceased, “denied her sister was frequently

violent”. What happened next is described in a newspaper account of the trial:

“[the witness] agreed that she had made a statement to gardaí in June 2005 describing how her sister had broken her jaw

and knocked her unconscious in a row over a mobile phone. In the statement she said she feared at one stage that her

sister, who had been kicking her in the face, would kill her. When she regained consciousness, she was in hospital and

was told her brain was swollen and her jaw broken. She had since withdrawn this statement.” (“Guilty of fatal knife attack

on Meath teenager”), Irish Times Thursday, 22 March, 2007, page 7.

123. One does not have to have any views on the issues in the particular case to understand that it would have been very wrong to

withhold the contents of the witness’s previous statement, even though later disavowed by her, from the jury.

124. I have referred to these cases, all coincidentally arising in a period of less than two months, to illustrate how frequently a prior,

allegedly inconsistent, statement is deployed in courts and indeed in Tribunals or indeed in any forum where contests of fact arise. I

believe that scarcely a day goes by without such a statement being used to challenge a witness. I must frankly record my

astonishment that even clearly inconsistent statements were not disclosed to the applicants by the defendant Tribunal.

125. Almost 180 years before the cases just referred to, in the case of R. v. Lynch and Ors. (universally known as the Donneraile

Conspiracy case), Daniel O’Connell was defending seventeen men charged with conspiracy to murder. This was then a capital offence.

The sole evidence against them was that of approvers i.e. persons claiming to have been complicit in the alleged conspiracy who

were giving evidence for the Crown. On this evidence four men had been convicted prior to O’Connell’s involvement and sentenced to

death. The allegation was a very specific and melodramatic one: that the defendants had met together with others, including the

approvers, in a tent at a fair and had there signed a written agreement to kill a number of local landowners.

126. O’Connell saved the lives of all but one of the defendants by destroying the credibility of the principal approver in cross-

examination. He did this by cross-examining on the basis of a prior inconsistent statement. This statement was a deposition

made before a magistrate on the day after the alleged murder agreement. The Crown went to great lengths to conceal this

document, which was a gross embarrassment to them since it simply did not mention the alleged written agreement at all. It was not

transmitted with the other depositions to the Court of trial. Nationalist legend for many years held that O’Connell cross-examined out

of a stolen copy of the deposition but this is not true. Less dramatic (but for our purposes much more significant) is the fact is that

one of the two presiding judges, Mr. Baron Pennefather, himself sent for the missing deposition. When it arrived he handed it to

O’Connell in open court: the cross-examiner proceeded to destroy the credibility of the witness “ using this knowledge of the

difference between first evidence given in the privacy of a prosecutor’s den and the oral evidence gently sieved by a Crown

Prosecutor in court”. (See O’Faolain, King of the Beggars, a life of Daniel O’Connell, Poolbeg Press, Dublin, 1980 p.239; 1st edition

1937; for an earlier version based on contemporary accounts see J. Roderick O’Flanagan, The Munster Circuit, London, 1880, p.207ff).

127. This happened in October, 1829 a time when notions of human rights and fair procedures were, to say the least,

underdeveloped. But it was clearly repugnant to the conscience of a judge of that remote era that a prior statement of a witness

which made no mention of the principal point in his eventual oral accusation should be concealed from defending counsel. I, too, find

the withholding of such evidence indefensible, within the different context of a 21st century Tribunal of Inquiry. I believe that the

Tribunal, perhaps by reason of the multiplicity of roles – investigator, statement-taker, advocate and adjudicator – which it has by

itself or its agents taken on, has become gravely insensitive to the position of the applicants and to the significance of prior

statements by their accuser inconsistent with or contradictory of what he now says. The withholding or redaction of material has, in

each instance of which I am aware, tended to protect Mr. Gilmartin and to handicap those against when he makes allegations.

Formulations of the duty to disclose.

128. The Tribunal strongly contended that it was in a unique position, quite different from that of a party to civil litigation, the

prosecution in criminal litigation, or a third party in possession of documents relevant in other peoples’ litigation: it is in fact sui

generis. The significance of those distinctions will be discussed below. Nevertheless I think it appropriate to look to certain

formulations of the duty to disclose in relation to civil and criminal litigation. These formulations are not, at bottom, technical in

nature (though a good deal of technicality has grown up around them) but are designed to reflect the requirements of justice in cases

where important matters depend on the resolution of contested issues of fact.

129. The classic statement of the scope of the duty to disclose in civil cases is still that contained in Compagnie Financiere et

Commerciale du Pacifique v. The Peruvian Guano Company (1882) 11 QBD 55. In a passage cited with approval for over 120 years

the Court of Appeal in England per Brett L.J., said that the duty to disclose by a party making discovery went beyond documents

which in themselves would be evidence to support or defeat any issue in the case. He continued at 61 - 62:

“The doctrine seems to me to go further than that and to go as far as the principle which I am about to lay down. It

seems to me that every document which relates to the matters in question in the action, which not only would be

evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must -

either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case

of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can

properly be said to contain information which may enable the party requiring the affidavit either to advance his own case,

or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have

either of these two consequences”. (Emphasis in original)

130. In one sense, it is unnecessary in the exposition of this topic to go beyond that classic passage. It emphasises that it is the

reasonable possibility, and not the certainty, of usefulness which is the criterion; and that the usefulness in question may be either

the advancement of one owns case or the damaging of the case of an adversary. It also extends to a potential to lead a party to a

train of inquiry, as opposed to direct or immediate utility.

131. In Ryanair v. Aer Rianta [2003] 4 IR 264, Fennelly J. said at 275:

“The definition by Brett L.J. in Compagnie Financiere du Pacifique v.Peruvian Guano Co. (1882) 11 Q.B.D. 55 at p. 63,

remains the universally accepted test of what is the primary requirement for discovery, namely the relevance of the

documents sought”..

132. In a civil case, of course the question of relevance of a document will be considered in terms of the issues raised by the

pleadings. There are naturally no pleadings in the proceedings of the Tribunal. But the statements of Mr. Gilmartin and the parties

against whom he makes accusations, and still more the oral evidence of Mr. Gilmartin in March, 2004 and such cross-examination of

him as was permitted to take place, plainly identified the matters in difference between them: did Mr. O’Callaghan and Mr. Deane

falsify the contract of January, 1989? Did Mr. O’Callaghan make the “Did he tap you?” remark in the context alleged and so on?

133. The proper limitations to discoverability seems to me to be well expressed in the English decision of Colman J. in O Co v. M Co

[1996] 2 Lloyds REP. 347. There, the judge said:

“The principle [of Brett L.J.’s ‘train of inquiry’] was never intended to justify demands for disclosure of documents at the

far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the plaintiff or

defendant and which were required for purely speculative investigation…”.

134. The principles of disclosability by the prosecution in criminal proceedings, as applied in Ireland, may also be of relevance. In Ward

v. Special Criminal Court [1999] 1 IR 60 Carney J. said at 71, reflecting the agreed position of the parties in that case:

“the prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in

damaging the prosecution case or in providing a lead on evidence which goes to either of these two things”.

135. Perhaps more broadly, in Kelly v. DPP [2006] Supreme Court, (unreported, 4th April, 2006), Fennelly J. said that:

“The prosecution must disclose to the defence any material of possible relevance to the guilt or innocence of the

accused”.

136. On the topic of relevance or materiality, the English case of R. v. Melvin (unreported, High Court, 20th December, 1993) per

Jowitt J. is often quoted with approval:

“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:

(1) To be relevant or possibly relevant to an issue in the case;

(2) To raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to

use;

(3) To hold out a real as opposed to fanciful prospect of providing a lead on evidence which goes to (1) or (2).

137. On the specific question of disclosure of material relating to the credibility of a witness, the New Zealand Court of Appeal in

Wilson v. Police [1992] 2 NZLR 533 said, per Cooke J. that:

“the test must be whether a reasonable jury or other Tribunal of Fact could regard it as tending to shake confidence in

the reliability of the witness”.

138. It is on that basis, presumably, that following the decision in DPP v. Kelly [1987] IR 596 previous convictions of prosecution

witnesses fall to be disclosed. In the United Kingdom, where certain witness statements are apparently routinely recorded, it has been

held that preparatory notes and tape recordings in relation to the preparation of a statement are disclosable: see R. v. Sanders

(unreported, Central Criminal Court, 29th August, 1989). For a graphic example of the utility of such evidence see the remarks on the

Daminola Taylor case in my judgment in the previous judicial review application between the present litigants.

139. In R v Winston Browne [1998] A.C. 367 Lord Hope of Craighead spoke of the rules of disclosure as follows:

“The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every

defendant to a fair trial. If a defendant is to have a fair trial, he must have adequate notice of a case which is to be

made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor

C.J. observed in R .v. Keane [1994] 1 W.L.R. 746, 750g the great principle is that of open justice. It would be contrary to

that principle for the prosecution to withhold from the defendant material which might undermine their case against him or

which might assist his defence

The statement which the police had obtained supported his alibi. This was information in the hands of the prosecutor

which might have assisted the defence case on an issue of fact which was relevant to the plaintiff’s guilt or innocence.”

140. In R v. Judith Ward [1993] 2 All E.R. 577 the court adopted the words of Lawton L.J. in R v Hennessy (1978) 68 Cr. App. R. 419

where he said at 426:

“[K]eep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant

evidence of help to an accused is either led by them or made available to the defence.”

141. The Court went on to observe at 601:

“We would emphasise that ‘all relevant evidence of help to the accused’ is not limited to evidence which will obviously

advance the accused's case. It is of help to the accused to have the opportunity of considering all the material evidence

which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be

led”.

142. The reference to the prosecution having made their own selection of the evidence they wish to produce has obvious resonance

in this case where the Tribunal had selected a tiny quantity of material for disclosure from a much larger volume available to them.

143. In Ward v Special Criminal Court [1999] 1 IR 60 O’Flaherty J. said at page 500:-

"It is agreed that all sides that where the prosecution has a statement of a person who may be in a position to give

material evidence whom they do not want to call as a witness, they are under a duty to make that person available as a

witness for the defence and in general to make available any statements that he may have given. We understand that

this is in fact the practice that has been in operation in the office of the director of public prosecutions for a very long

time.”

144. The last four passages were approved and followed by the High Court (O’Sullivan J.) in O’H v DPP (High Court), unreported 25th

March 1999.

145. According to the learned authors of Abrahamson, Dwyer and Fitzpatrick Discovery and Disclosure (Thomson Roundhall, Dublin

2007) at paragraph 22.8:

“It is axiomatic that this category of evidence which must be disclosed includes any previous inconsistent statement

made by the witness. Indeed, previous statements should be disclosed irrespective of whether or not they can be seen to

be inconsistent.” (Emphasis added)

146. Amongst the authorities cited for this proposition is the judgment of Denham J. in DPP v. G.K. (unreported, Court of Criminal

Appeal, 6th June, 2002) where it was said:

“Otherwise, the accused is precluded from confronting witnesses for the prosecution with inconsistencies in their

evidence which only became manifest during the retrial. This is all the more so when the outcome of the prosecution is to

a large extent dependent on whether or not the evidence of the alleged victim is accepted by the jury, or by the Court,

as the case may be”.

147. That case turned on whether a defendant in respect of whom a jury had previously disagreed was entitled, for the purposes of a

retrial, to a transcript of what the prosecution witnesses had said at the first trial. It was held that he was. Denham J. also said:

“To withhold a transcript of the evidence given at the first trial from an accused person in such a case is tantamount to

denying him or her the opportunity of exposing an unreliable witness for what he or she is, in that, in the absence of the

capacity to compare evidence given at successive trials by the same witness (evidence which is hotly contested) the

accused is in effect limited in his or her capacity to defend himself or herself, which offends all principles of justice as

they are recognised in this jurisdiction”.

148. The G.K. judgment was given in the Court of Criminal Appeal and was shortly afterwards approved by the Supreme Court in B.J.

v. DPP [2003] 4 IR 525. In that case, the first statement in the nature of a complaint was unavailable because the guard to whom it

was made had omitted to record it. The Court cited G.K. and continued:

“There is no rational basis for distinguishing between a previous statement made by a witness in a trial and a previous

statement made in some other context”.

149. In one of the many cases dealing with the difficulties of fairly prosecuting for offences said to have taken place in the remote

past, P.O’C v. DPP [2000] 3 IR 87, I said at 119:

“[E]very effort must be made by both parties but particularly the prosecution, to try to avoid a situation where there is

no island of fact, and where bare assertion can be countered only by bare denial. This must be done first in questioning

the complainant: everything he or she says must be recorded, whether it forms part of the eventual formal statement or

not, and whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time, place or

otherwise than they need to be, and any variation between an earlier and a later account must be fully noted and

disclosed”. (Emphasis added)

150. Enough has been said, I hope, to demonstrate that the use of prior inconsistent statements in particular and material

undermining credibility in general, have been recognised for centuries as an effective way of contradicting a witness; that this can be

demonstrated from cases both ancient and modern; that such statements are regarded as disclosable in criminal proceedings and as

discoverable relevant and admissible in civil proceedings. As mentioned above, I would refer in addition to the remarks I made on this

topic in my judgment in the first judicial review.

Prejudgment?

151. As we have seen above, the first criterion adopted by the Tribunal for disclosability was simply that of relevance. Material was

withheld “where the text is not relevant to the Inquiry at hand”.

152. According to the Oxford English Dictionary, “relevant” means “bearing on, connected with, or pertinent to the matter in hand”.

“Relevance” means the quality of being relevant.

153. In this case, the members of the Tribunal withheld, firstly on the basis that it was without relevance, the fact that Mr. Gilmartin

had given a previous account of the meeting in Buswells Hotel which placed it on a day other than the day he mentioned in evidence.

This previous account did not mention the demand made of him for £100,000 which he alleged at the public sitting and nor did it

mention that Mr. O’Callaghan made the remark later publicly attributed to him.

154. I do not of course for a moment consider that the Tribunal withheld this information out of ill will to Mr. O’Callaghan or for any

other manifestly illegitimate purpose. The applicants themselves did not make this contention. But it is evident that the Tribunal took

this decision as a result of some rational process which led them to the conclusion that the material was irrelevant, that it had no

bearing on the matters in issue.

155. Having regard to the long established forensic significance of a previous inconsistent statement, I cannot see how that can have

occurred except on the basis that the Tribunal made a decision that the prior inconsistent statement was for some reason of little or

no importance. On the hearing of this appeal Mr. Michael Collins S.C. for the Tribunal expressed this view as being that the

inconsistent statement had “only marginal” significance. By not disclosing the previous statement the Tribunal were, according to

their own stated procedures, precluding themselves from giving it any further consideration whatever and from hearing Mr.

O’Callaghan on it. Accordingly, without hearing Mr. O’Callaghan or his counsel and without putting the matter to Mr. Gilmartin, the

Tribunal arrived at a decision that the prior inconsistent statement was irrelevant because it had no bearing on the matters at issue.

156. I have to say that I regard this decision not merely as wrong but as extraordinary in light of the well established significance of a

prior inconsistent statement. I am not of course saying that every prior inconsistent statement renders a subsequent statement to a

different effect unreliable: I am saying that such a statement requires to be considered, after hearing both sides, in terms of its

effect if any on the credibility of the second statement. The Tribunal not merely decided not to do this: it decided to give no

consideration whatever to the fact that the prior inconsistent statement had been made at all. Therefore, the withholding decision

seems to me self evidently to establish a judgment by the Tribunal on the suppressed materials’ truth or significance made without

hearing the party accused by the maker of the statement, Mr. Gilmartin. This, in my view, is more than sufficient to give rise to a

reasonable apprehension of prejudgment of the issue of the significance of the prior statement. That in turn, (subject to the

Tribunal’s submissions on technical issues and on the question of finality), establishes a reasonable apprehension of prejudgment such

as Mr. O’Callaghan deposes that he has. Similarly, the allegation in relation to the contract of January, 1989 appears to contain not

one but two direct factual contradictions as between that allegation made in public sitting and what had previously been said. It is

plain from the transcript that Mr. Gilmartin had represented to the Tribunal that the contract he gave them was the one he had

signed. There is no evidence from a document examiner, handwriting expert or similar expert to the effect that the document has

been tampered with or that the signature is not genuine. The only evidence on this question is Mr. Gilmartin’s unsupported statement

that Mr. O’Callaghan and Mr. Deane falsified the document.

157. In those circumstances it appears quite wrong, and quite irrational, except on the basis of firm prejudgement, to dismiss as

irrelevant Mr. Gilmartin’s previous statement to the Tribunal itself, attributing the deficiencies in the contract to negligence on the

part of his own solicitor. Of course, these are not the only two alternatives to account for the contract being as it is: it may simply

have been a commercially naïve or overoptimistic transaction on Mr. Gilmartin’s part for which he is determined to blame someone else

and has in fact blamed, variously, his former solicitor and Mr. O’Callaghan and Mr. Deane. It is not my function to say which of these

hypotheses is the more likely but, as with the previous allegation, there is no possible basis for the exclusion of the prior and quite

inconsistent statement, without hearing Mr. O’Callaghan, other than that those who excluded it as “irrelevant” had made up their

minds that Mr. Gilmartin’s later version was the only one that need be considered. A similar analysis of each of the other withheld

documents listed above could be made with, I believe, the same inevitable result. The applicants’ conclusion - a reasonable

apprehension of prejudgement - is an inference but, I believe in the circumstances, a coercive one.

After the allegations had been made in public.

158. I now move to consider the situation which existed after Mr. Gilmartin had made his allegations in public. Once the Tribunal had

permitted that to occur, in a blaze of publicity, no conceivable justification based on the modular nature of the Tribunal’s hearings or

the fact that it had not been intended, originally, that Mr. Gilmartin should make some of the allegations, could justify the withholding

of the prior inconsistent statements or of material clearly offering the possibility of impugning his credibility in general. As will be

apparent from the judgments in the earlier judicial review, and the preceding section of this judgment, the Tribunal then altered the

basis for non-disclosure from that relevance (clearly untenable once the allegations had been publicly made) to that of confidentiality.

The Tribunal now recognises this to have been wrong. But the Tribunal also declared an exception to the general rule of

confidentiality of un-notified allegations, in the event of certain kinds of inconsistency “between an account given on a previous

occasion privately to the Tribunal and one given publicly”. The nature of such an inconsistency was variously described as “a glaring

inconsistency” “significantly inconsistent” or “gross inconsistency”. More generally, it was stated in the ruling of the 24th March,

2004, that only in “exceptional circumstances” would the Tribunal consider departing from its rule of confidentiality of uncirculated

material.

159. Furthermore, in the Tribunal’s ruling of that date, it became clear that it did “not at this time consider that there are

circumstances which merit or which allow for a departure from the terms under which the document was provided to the Tribunal and

accordingly refuses the application for its circulation.”

160. It follows from the foregoing that, even after Mr. Gilmartin’s unnotified and widely publicised allegations there were in the

Tribunal’s view no sufficiently “exceptional” circumstances so to permit disclosure of prior inconsistent statements, or statements

suggestive of impaired credibility on the part of the witness. Accordingly, the Tribunal had decided that (for instance) the prior

statements in relation to the two allegations analysed in the preceding section of this judgment were not significantly inconsistent

with what the same witness had said in public. This view can only be explained on the basis that the Tribunal had privately judged the

significance and veracity of the privately made statements, without hearing the persons against whom they were made, in such a

manner as to deem them not to be significantly inconsistent with what was later said in public. I believe this to be a perfectly

reasonable inference and indeed I can see little or no scope for any other. It is certain that the Tribunal, in withholding the

documentation after a specific request, did not simply or solely rely on confidentiality but considered first the relevance of the prior

inconsistent statements and secondly the question of whether they were significantly etc. inconsistent with what he had said

publicly. It is this fact that permits an inference of prejudgment, in my view reasonable, to be drawn.

Powers and Duties of the Tribunal

161. In order to conduct an Inquiry within the statutory framework of the Tribunals of Inquiry Acts, it is self-evident that the Tribunal

must gather information. This could be done in many ways and no objection has been taken to the legality of the principal way in

which it was in fact done, by extensive private interviews often leading to written statements. Some of the information so gathered

was either self-evidently confidential, or was supplied under express terms as to confidentiality and/or plainly had the capacity to do

immense damage to individuals, justifiably or otherwise. It is fair to say that the Tribunal was conscious of these matters and of the

obligations on the part of the Tribunal to which they gave rise. Especially in circulating documents prior to public hearings, the

Tribunal was obliged to give some of this information to third parties, e.g. persons who were impugned by it and in respect of whom

the Tribunal intended to proceed to public hearing. Great injustice could be, and has in fact been, caused to individuals by the

undisclosed leaking, in advance of public hearings, of matters disclosed to the Tribunal. This injustice took a number of forms, but a

typical one was that leaked material was published in newspapers in advance of public hearings and without any opportunity on the

part of the person impugned to reply, and before he had a chance to cross-examine. It was, in part, to avoid such damage that the

Tribunal evolved its policy of confidentiality.

162. It is also fair to add that, since the applicants in the present proceedings have become aware, as a result of previous litigation,

of most of all material in the Tribunal’s possession relating to them, there has been no leak whatever of the disclosed material, e.g.

Mr. Gilmartin’s prior inconsistent statements or certain allegations which would plainly be profoundly hurtful to other persons and

which the Tribunal does not intend to inquire into.

163. Certain of the Tribunal’s duties arise from the fact that a person impugned before it by serious allegations is obviously in the

position of the applicant in Re Haughey [1971] IR 217. That is, he is not a mere witness but is in a position more analogous to that of

a party. The proceedings of this and other Tribunals provide examples of individuals, including some famous names, who have been

ruined in reputation and sometimes in livelihood as well by adverse findings of a Tribunal.

164. The Tribunal fully accepts the procedural consequences of these things, and the need to provide a high and transparent

standard of procedural fairness. Its own statement of part of what this requires may be taken from an affidavit sworn on behalf of the

Tribunal in other proceedings, Mahon & Ors -v- Post Publications Limited (trading as The Sunday Business Post) (record no. 367/05).

It was said:

“The Tribunal has an obligation to conduct the hearings in which allegations are made against numerous parties in a fair

and proper manner. In particular I say that the Tribunal is mindful at all times of the constitutional rights of the parties

against whom allegations are being made and in particular their right to a good name. I say that the effect of the policy

of confidentiality, when properly operated, is that allegations made against certain parties are made within the proper

forum of public hearings, that the full context and circumstances surrounding those allegations are made known at

one and the same time as those allegations and that the party against whom the allegation is being made is given the

proper opportunity to respond to those allegations as soon as practicable. Further I say that the party against whom the

allegations are being made is given the opportunity to test these allegations by means of cross-examination within a

reasonable time of those allegations being heard in a public forum.” (Emphasis added)

165. It cannot be said that “the full context and circumstances surrounding those allegations ” were made known to Mr. O'Callaghan

and his associates by the Tribunal. I think it obvious that the existence of an earlier statement, directly contradicting the one

selected for airing in a public forum, is part of that full context and circumstances. But these were suppressed.

166. The Tribunal is of course correct to say that it is not in the position of a party to civil proceedings or of the prosecutor in

criminal proceedings. Its powers and its role make it to a large degree unique. A Tribunal, especially one which proceeds as this

Tribunal has elected to do, finds itself through its members or through counsel (and, to a much lesser extent, solicitor) functioning as

adjudicator but also as investigator, statement-taker and advocate. This is an extraordinary mixture of roles, and one with many

dangers. In this case, it would appear that the sole member who originally composed the Tribunal travelled to England to meet with

Mr. Gilmartin (together with counsel) and to assure him that he “was not a whitewash man”. He left the rest of the interview to

counsel. Counsel, under the direction of the sole member or later of the members of the Tribunal performed roles akin to those of a

solicitor in civil proceedings and, to some extent, of a garda in criminal proceedings. They had a huge level of contact with Mr.

Gilmartin over the years. He was, at least at times, able to telephone them without prearrangement and to spend hours in

conversation. Moreover, it was made clear on the hearing of this appeal that it was the members of the Tribunal themselves, and not

counsel as apparently had happened in other modules, who selected the documents for circulation before the oral hearing in this

module and who therefore, by that very act, selected the documents which were to be withheld. It was likewise the members, the

persons who would eventually adjudicate on conflicts, who decided to continue to withhold those documents after Mr. Gilmartin had

made his allegations in the public sittings. It was the members who heard, without rebuke or contradiction, their own counsel in

support of an objection to cross-examination say “There are no surprises here” when she, and they, must have been fully aware that

the Tribunal was in possession of grossly surprising materials which they decided to withhold. The whole of this passage is set out

above. This statement, in that context, epitomises the profoundly flawed nature of this Tribunal’s procedures and the insensitivity to

the requirements of justice for the applicants which that produced.

167. Moreover, in normal circumstances there is no practicable appeal from the decision of the members. It was only Mr. Gilmartin’s

unscripted outbursts, and his concession that his prior statements might well contain inconsistencies with his public evidence, that

made the earlier judicial review, and thus this action as well, possible. Had he adhered to the statement which had been drafted for

him it is most unlikely that the grounds for review would ever have become apparent. The contrast between the position of the

Tribunal and that of participants in other kinds of forensic proceedings is acute. A judge deciding on what is to be discovered or

disclosed is quite separate from, and independent of, the parties and the advocates. If a dispute arises, a judge can look objectively

at the disputed material and judge objectively of its relevance. I can imagine no circumstances in which a judge would withhold from

disclosure a statement by a party or witness directly contradictory to his publicly adopted position in litigation.

168. Slightly to adapt the language used in R -v- Judith Ward, (cited above), it is the Tribunal which gathers the information and the

Tribunal which makes the selection, from that body of material, of the evidence which is to be led. In view of that fact, and the other

very special circumstances mentioned above, I do not believe that the Tribunal’s obligation of disclosure to a person gravely

impugned, who disputes the allegations, is in principle any less than that of the public prosecutor in criminal cases. This duty, I

believe, arises from the obligations of procedural fairness and from the unique variety of roles which the Tribunal adopts including a

private investigating one. Contrary to an express submission made on behalf of the Tribunal on the hearing of this appeal, I believe

that the Tribunal is under a continuing obligation of disclosure to a party impugned, by reason of its having assumed an investigatory

as well as an adjudicatory role. No official investigator is entitled to cherry pick the fruits of investigation, thereby shaping the public

inquiry without the persons involved or the public being made aware of the true scope of the evidence. That is what happened here.

Prejudgement.

169. As indicated above, I believe that the specific manner in which the Tribunal dealt with the question of withholding of information

(and specifically prior inconsistent statements) gives rise to a reasonable apprehension on the part of the applicants that the Tribunal

has prejudged certain matters including the truth, relevance and significance of the originally withheld material, and the credibility of

Mr. Gilmartin. Indeed, I share that apprehension. I would emphasise again that I do not believe it necessary, in order to feel this

apprehension, to attribute it to any ill will on the part of the Tribunal towards Mr. O'Callaghan or his associates, and I am quite sure

that no such thing existed. But I would repeat, in slightly adapted form, what I said towards the end of my judgment in the first

judicial review when the withheld documents were still concealed:

“I am deeply concerned that, if the information gathered in the private phase is to be shrouded in permanent secrecy

there is a grave danger of a shift in the very nature of the Tribunal itself. This procedure would alter the Tribunal from

being a public inquiry with a private, limited preliminary phase to one in which a good deal of the real business would be

done in private. Specifically, a Tribunal would itself in private have assessed contradictions in a witness's evidence and

have formed the view, without submissions of any kind, that they were not sufficiently ‘gross, glaring or significant’ to

warrant exploration in public. There would be a danger … that the Tribunal might itself become invested in the evidence of

a particular witness to the point where it became insensitive to contradictions in his or her evidence. There is also a

danger, on the same basis, of the public perception of an element of pre-selection or management of the evidence

presented in public and an element of protection of a particular witness, which might be wholly unconscious on the part of

the Tribunal.”

Having now seen the withheld material, I believe that this is precisely what happened here.

Technical issues.

170. I must now turn, however, to some further points urged upon the court on the hearing of this appeal by the Tribunal. These

include firstly, submissions in relation to the nature of the apprehension of prejudgement which must be established; secondly, to the

alleged legal impermissibility of inferring prejudgment from decisions taken in the course of the Tribunal's procedures themselves; and

thirdly, the proposition that there is no finality in any impression or decision the Tribunal may have formed or taken in relation to the

withheld material so that the members are not disqualified from proceeding to hear and arrive at findings upon the allegations against

Mr. O'Callaghan and the other applicants. The Tribunal further alleges that the present case is premature.

The nature of the apprehension of prejudgement.

171. There is a good deal of authority on the question of the sort of apprehension of pre-judgement which must be shown before a

person can be restrained from sitting as a judge or other adjudicator. There was not, indeed, much controversy between the parties

to this appeal on the subject except perhaps on one aspect.

172. In O’Neill v. Beaumont Hospital Board [1990] ILRM 419, the Board of the hospital had unlawfully delegated to their Chief

Executive a decision on whether the plaintiff, a consultant surgeon, had satisfactorily completed a probationary period. The Chief

Executive decided against the surgeon. When the latter established the unlawfulness of the delegation, the Board proposed to

determine the issue afresh themselves. The surgeon objected on the grounds of prejudgement, evidenced by remarks made by certain

members of the Board approving the former purported determination. Finlay C.J. said at 438:

“I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though

it may be subtly different from the standard which was applied in the High Court, is the question as to whether a person

in the position of the plaintiff, Mr. O’Neill, in this case who was a reasonable man, should apprehend that his chance of a

fair and independent hearing of the question does not exist by reason of the pre-judgement of the issues which are

involved by the members of the Board. That in my view is the proper test to be applied in this case, and it fulfils what I

understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a

case of this description.”

173. In general, this test was accepted by both sides. That is to say, it was accepted that the standard was whether a reasonable

person, who was informed as to the issues and the facts, would apprehend bias. The applicants however considered that the

hypothetical reasonable person should be one whose perspective included, but was not limited to, that of the party who might be the

victim of the prejudgement, while the Tribunal preferred a test limited to the perspective of a reasonable but entirely detached

person.

174. On the authorities, I believe that standard of reasonableness is one which includes, but is not limited to that of a party. I do not

believe that, as was hinted in argument, Chief Justice Finlay’s phrase “whether a person in the position of the plaintiff who was a

reasonable man…” was in any way an accidental or unfortunate wording.

175. The O’Neill case was followed in this Court in Well Woman Centre Ltd. v. Ireland, The Attorney General and the Society for the

Protection of the Unborn Child (Ireland) Ltd. [1995] 1 ILRM 408. There, the plaintiff had brought proceedings seeking a declaration

that it could lawfully make available within the State information relating to abortion services which were themselves lawfully available

in another Member State of the E.U. This action came on for hearing before a judge who happened also to be the chairwoman of the

Commission on the Status of Women. In that capacity she had written a letter to An Taoiseach indicating the view of the Commission

that women should have the right to avail of counselling and information in relation to abortion outside the jurisdiction. The third-

named defendant, SPUC, asked the judge to discharge herself from the hearing on the ground of a reasonable apprehension of bias.

Giving the judgment of the Supreme Court, Denham J. said at 423:

“It is a fundamental and age old concept in common law that justice must manifestly and visibly be seen to be done. It is

expressed now as constitutional justice. In cases such as this where many reasonable people in our community hold

strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in

the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the

grounds of pre-existing non-judicial position and actions, it would be contrary to constitutional justice to proceed with a

trial”. (Emphasis added)

176. Similarly, in O’Reilly v. Cassidy [1995] 1 ILRM 306, a Circuit Judge was hearing garda objections to the renewal of a public house

licence. The barrister retained by the State to act for the objectors was a daughter of the judge. The lady who owned the public

house took exception to this state of affairs, on account of the relationship. Finlay C.J. said at 309 - 310:

“[Counsel for the licensee suggests] that the test to be applied was, would a reasonable person apprehend that there

might be bias because of that relationship. Given the applicant’s very considerable stake involved in the decision in

the case, having instructed her counsel to object to the relationship, I am satisfied that the Court possibly should have

discontinued the matter and either got another judge to do it or take some step.” (Emphasis added)

177. Quite clearly, in these cases the decision as to whether there was a reasonable perception of bias was decided on a test which

did not exclude, but was not limited to, the position of a party. Indeed, what Denham J. calls the “fundamental and age old concept”

that “justice must manifestly and visibly be seen to be done” plainly includes the necessity for justice to be seen by the parties to

be done.

178. Another case which was much discussed on the hearing of this appeal was R. v. Watson, a 1976 decision of the High Court of

Australia, reported at 1 FAM. LR 11297. There, a party to family law proceedings sought and obtained relief by way of prohibition on

the grounds that the judge in the case was biased against her and had prejudged her credibility to her disadvantage. The

fundamental principle in such cases was put in this way by Barwick C.J.:

“The requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a

suspicion may reasonably be considered in the minds of those who come before the Tribunal or in the minds of the

public that the Tribunal or a member or members of it may not bring to the resolution of the questions arising before the

Tribunal fair and unprejudiced minds. The view that a judge should not sit to hear a case if in all the circumstances the

parties or the public might reasonably suspect that he was not unprejudiced and impartial is not only supported by the

balance of authority as it now stands but is correct in principle”. (Emphasis added)

179. Accordingly, I take the view that the apprehensions of a party, who is a reasonable person, are not to be excluded in

determining whether there is a reasonable apprehension of bias. In none of the cases cited were they in fact excluded. To do so

would involve paying no attention to the authoritative statements of eminent judges. Finlay C.J. considered the perspective of “A

person in the position of the plaintiff…”. Denham J. asserted that “neither party” should have reasonable grounds to apprehend bias.

Barrick C.J. referred to reasonable suspicion “in the minds of those who came before the Tribunal or in the minds of the public”. These

formulations cannot be disregarded.

180. Neither indeed are the apprehensions of a wholly detached observer who is both reasonable and informed to be excluded. There

may be cases where the result will turn on a difference between those two perspectives. But such cases will be rare, if they exist at

all, because all apprehensions are to be subjected to the objective test of reasonableness. In the present case I do not believe that

anything turns on the distinction because of the glaring and manifest significance of some of the withheld documentation and because

of the process of judgement which must have been applied by the Tribunal in deciding to withhold it and to continue to withhold it

after specific request.

Source of the apprehension.

181. It was trenchantly argued on behalf of the Tribunal that existing authority precludes a finding that a party reasonably

apprehends bias or prejudgement in circumstances like those of the present case. This is because, the Tribunal submitted, the

matters which give rise to the apprehension occurred in the course of the Tribunal’s own procedures in the very module in which the

applicants are involved. The Tribunal did not go so far as to submit that this fact alone would deprive the applicants of any relief but

submitted that such relief could not extend to the disqualification of the members for apprehended prejudgement.

182. As in the case of other legal issues which arose on the hearing of this appeal, much authority was cited on this question from

jurisdictions both near and far. It seems to me, however, that the Tribunal’s principal reliance was placed upon the decision of this

Court in Spin Communications Ltd. v. IRTC [2001] 4 IR 411, and on another recent Irish case much quoted there, Orange

Communications Ltd. v. Director of Telecoms (No. 2) [2000] 4 IR 159. In the former case, Murray J. (as he then was) said at 433:

“In my view there is clearly a distinction to be drawn between the existence of factors external or extraneous to the

decision making process in which an adjudicator is engaged and the manner in which that process is conducted on the

basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision

nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. Obviously factors

relevant to the decision may affect it but the decision must be arrived at fairly.” (Emphasis added)

183. Mr. Justice Murray went on to cite Barron J. in Orange as follows:

“There is a duty upon the decision makers to carry out the process leading to the decision in a particular way. Not to do

so may make the process unfair or otherwise invalidated, but that is not bias”.

184. Earlier in the same judgment at 221, Barron J. had said:

“Insofar as bias may be found to exist or to have existed, it will always predate the actual decision of contemplated

decision. Bias does not come into existence in the course of a hearing. It may become apparent in the course of a hearing

and in that way alert a party to the possibility of bias so as to enable such a party to establish facts which show that the

attitude adopted by the decision maker in the course of the hearing was one which might have been expected having

regard to those facts. The essence of bias then is the perception… once all the facts are known that the particular

decision maker could never give or have given a decision in relation to that particular issue uninfluenced by the particular

relationship, interest or attitude. Obviously, if it is perceived that it may influence a decision yet to be given, it must exist

at that stage.”

185. It is clear from the foregoing that a distinction has been recognised in the authorities between something separate from an

adjudicator’s “decision making process” on the one hand and something arising during this process on the other. The significance of

this distinction is that, it is said, only something in the first category can be said to lead to an apprehension of bias. If something

improper in the second category occurs then that is at most a failure of fair procedures. The significance of this hard fought issue lies

in the fact that it is also argued that only something in the first category can disqualify a decision maker: a failure to accord fair

procedures may lead to a necessity to revisit the hearing, but cannot disqualify.

186. I am far from satisfied that it is possible to draw so hard and fast a distinction between these two categories of wrongful actions

by an adjudicator as that which the Tribunal seek to uphold. But I do not consider it necessary to explore this question in a

theoretical way. The fact is that, by reason of the very unusual, probably unique, procedures this Tribunal has elected to adopt, its

counsel on the hearing of this appeal had great difficulty in identifying with any precision the bounds of the “decision making process”

of the Tribunal and its other processes.

187. When it became clear that the Tribunal were relying very heavily indeed on this distinction, Mr. John Fitzgerald S.C. for the

Tribunal was asked whether the “preliminary investigation” part of the Tribunal’s procedures were part of its “decision making

process”. This, indeed, was not an easy question and Mr. Fitzgerald deferred its answer to another day. Having considered the matter

he said:

“The preliminary inquiries are, in the Tribunal’s view, part of the decision making process of the Tribunal. Any errors in that

process are such as can be cured.”

188. Two days later again Mr. Michael Collins S.C. for the Tribunal submitted, on the basis of the authorities quoted above and others

that “You have to locate [the sources of] bias outside the Tribunal’s decision making process. In the Tribunal there are two

processes, the investigatory process and the decision making process. But there are moments of decision making which could be

regarded as discrete from the investigatory process, even though they occur within it.”

189. Not unnaturally, Mr. Collins was then asked whether he was resiling from what Mr. Fitzgerald had said some days earlier. He said

“I’m nuancing it… I am saying something a little different”.

“… nuancing it”.

190. Mr. Collins S.C. returned to this theme in the afternoon of the same day and next submitted that a “bias factor” must be outside

the entire process of the body in question. There may indeed be two parts to the processes of the Tribunal but a bias factor, he said,

must be outside its processes as a whole. The Orange case was cited in support of that, though it was conceded that on the facts

of Orange there was only one process. Alternatively, Mr. Collins repeated his previous submission that within the investigatory

process there were what he described as “moments of decision”.

191. The applicants’ argument on this point was made principally by Mr. Sreenan S.C. in reply. Relying on the instrument establishing

the Tribunal and the resolution of Dáil Éireann, he said that the Tribunal’s function was to conduct a public inquiry into certain matters

and that the preliminary process was envisaged by the drafters of these documents only in relation to the question of whether it was

appropriate to proceed to public inquiry, having regard to the availability of evidence. He drew attention to numerous paragraphs of

the affidavits filed by the Tribunal asserting that the decisions of the Tribunal would be based only on evidence given at public

sessions.

192. The private sessions of this Tribunal have very greatly surprised me by their number in absolute terms, by their number relative

to the days of public hearings, by the frequency and intensity of the contacts with Mr. Gilmartin which took place in the course of

them, and in other ways not directly relevant to the present proceedings. But by far the most novel and significant aspect of them is

the drastic editing of the statements of a vital witness, including even the deletion from the documents to be circulated of material in

gross glaring and significant contradiction to allegations the witness was to be permitted to make. In one sense, clearly, the fact that

these things were done imply decisions to do them by the members of the Tribunal. But I cannot regard them as part of “the decision

making process in which [the Tribunal] is engaged” because they wholly lack the characteristics which the Tribunal has itself

attributed to its decision making processes. First, as just noted, its decision making processes would be based wholly on evidence

heard in public: but the withholding decisions were based on information and discussion in private and had as their purpose the

sedulous preservation of that privacy. No-one was to know of the withheld material. Secondly, the decisions in question were taken

without hearing persons to whom the allegations were related, but the Tribunal say that its decision making processes would involve a

full hearing of those persons before any decisions are made.

193. The shifting positions of the Tribunal on this important topic during the hearing, even when there were intervals of several days

to decide on a position, are indicative of the inherent difficulties of maintaining, as they must for the purpose of this wholly technical

argument, that the decisions to suppress certain documents were in some sense part of the “decision making process” of the

Tribunal. There was first an unqualified assertion that they were part of this decision making process, followed by a concession that

they were not, but that they were part of a separate process which nonetheless contained “moments of decision making”. The

alternative argument, that the bias material must be sourced outside the Tribunal’s entire processes, simply ignores the words

“decision making process” in an authority (Orange) on which the Tribunal itself relies. In my view, these arguments are altogether too

strained and metaphysical to register in a court of Justice. A decision making process, the Tribunal has itself proclaimed, takes place

in public and after hearing the parties. It is unreal to say that a process which has neither of these characteristics is nevertheless for

a “moment” a part of the decision making process though mostly being part of a process of a different nature. I regard the Tribunal’s

position on this issue as a wholly artificial one.

Finality.

194. The Tribunal further say that the decisions they have taken in relation to the withholding of documents, albeit wrong,

nonetheless do not disqualify the members from continuing with the hearing. This is because the decisions they have made, though

wrong, are not final and, even if final in some sense can nonetheless be revisited by the same individual members without giving rise

to an apprehension of bias.

195. At paragraph 18 of the statement of opposition in the present case the following novel plea is put forward:

“Insofar as the documents which have now been circulated are concerned, the Tribunal was, at the time of its

consideration of the documents prior to the first-named applicants judicial review, of the view that same did not reveal

any significant or glaring inconsistencies as between previous statements of Mr. Gilmartin and his evidence before the

Tribunal which were relevant to that particular phase. The Tribunal has not made any final determination in this regard

and will consider any further evidence (by way of cross-examination or otherwise) or submissions which the applicants, or

any other party, wish to put before the Tribunal in relation to whether the documents contain such inconsistencies or

otherwise are of relevance to the Tribunal’s discharge of its functions. Further, the documents do not evidence any, or

any serious disparity and treatment by the Tribunal as between the applicants and Mr. Gilmartin or as between the

applicants and any other party appearing before the Tribunal.”

196. This paragraph (exclusive of the final sentence which relates to a slightly different subject) requires careful analysis.

197. The first sentence contains an admission that the Tribunal at one point held the view that the withheld documents did not reveal

any significant or glaring inconsistencies as between previous statements of Mr. Gilmartin and his evidence before the Tribunal, which

were relevant to that particular phase. However it is stated in the first subordinate clause that the consideration leading to this view

was “prior to the first-named applicants’ judicial review”. Furthermore, the conclusion come to was not that the documents did not

contain any significant or glaring inconsistencies but that it did not contain such inconsistencies “which were relevant to that

particular phase”. But it is conceded that the Tribunal had come to that view.

198. The second sentence of the paragraph quoted makes the central statement that “the Tribunal has not made any final

determination in this regard”. This statement was made on the 23rd January, 2006, almost two years after Mr. Gilmartin’s evidence in

March, 2004 and was then made for the first time. The second sentence goes on to state that the Tribunal will consider any further

evidence or submissions from any party in relation to whether the documents contain “such inconsistencies” or are otherwise of

relevance.

199. I cannot regard the factual assertion contained in the first sentence of paragraph 18 as consistent with the Tribunal’s prior

stance. In written submissions to this Court on the Tribunal’s appeal from the judgment of O’Neill J. in Mr. O’Callaghan’s earlier judicial

review the Tribunal said that had the documents they held been disclosed, that state of affairs was:

“likely to have resulted in cross-examination based on minor discrepancies between the sworn testimony of witnesses

and communications made by them to the Tribunal”. (Emphasis added)

200. I have already noted that the Tribunal did not tell counsel representing it on the occasion of Mr. O’Callaghan’s first judicial review

of the contents of the withheld documents. The statement just quoted, therefore, can only represent the Tribunal’s instructions,

since counsel was unaware of the contents of the documents and therefore unaware of the likely effect of their disclosure. The

statement just quoted is without any qualification such as limitation to a particular phase of the Tribunal’s activities. It is a firm

statement of the Tribunal’s views, having considered the documents. It does not hint at any conditionality or lack of finality. It

refers only to “minor discrepancies”. This plainly reflects the Tribunal’s considered judgment of the withheld material.

201. Furthermore, and perhaps more fundamentally, the subordinate clause in the first sentence of paragraph 18 “ at the time of its

consideration of the documents prior to the first named applicants judicial review” may be intended to suggest that a consideration of

the documents after the Tribunal’s legal error as to disclosability had been rectified might lead to a different result. The earlier judicial

review was entirely concerned with legal issues. But, as I have stated several times in this judgment, on the Tribunal’s own account

of its procedures, the non-disclosure did not derive from any view of the law. On the contrary, it derived from the view, first, that the

withheld documents were not “relevant”. This decision was taken in complete privacy and was final in the most practical sense that,

but for Mr. Gilmartin’s unexpected outburst, the nature of the withheld material would never have become known. No submission could

have been directed to it and no cross-examination could have taken place on it for this reason. At the time that decision was taken,

therefore, it was manifestly intended to be final. The immediate cause of its disclosure was the orders resulting from the earlier

judicial review but those proceedings could not themselves have been set in train but for a wholly unanticipated event. The Tribunal

itself says (paragraph 9 of the Statement of Opposition) that, in relation to information in its possession from a witness about matters

in relation to which a public hearing was not merited, “it was never intended that the witness would be questioned in relation to such

extraneous matters when giving evidence at the public hearing of the module which did require public inquiry”. (Emphasis added).

202. I would again emphasise that it is not the Tribunal’s mistaken view about confidentiality and its consequences which give rise to

the apprehension of prejudgement: it is the individual decisions as to relevance which give rise to that impression. The legal error was

merely the background to those decisions.

203. In paragraph 18, quoted above, the Tribunal seek further to narrow the scope of that initial decision by speaking in terms of

relevance “to that particular phase”. In my judgment in the earlier judicial review I made it clear that, for the reasons set out there, it

simply is not possible fairly to adopt a policy of doling out information bearing on the witness’s credibility, such as prior inconsistent

statements, on a drip feed basis, module by module. The credibility of a witness requires to be considered as a whole and the decision

as to when and how to deploy material challenging it is, with great respect, for the cross-examiner and not for the Tribunal. In any

event the first Quarryvale module is divided from the second entirely on the basis of chronology: Quarryvale I relates to events

occurring before 1990 and Quarryvale II relates to events after that date. Furthermore, the Buswells Hotel issue was, even on the

strictest view, within Quarryvale I, as was the alleged falsification of the contract of 1989 and the alleged conversation about the

Lee Tunnel in 1988.

204. At paragraph 8 of the Statement of Opposition, the Tribunal say that if a witness provided a narrative statement which was

inconsistent with the information already provided by him at private interview “ the Tribunal would have corresponded with that

witness or his solicitor querying the apparent inconsistencies and would consider raising the fact of their being inconsistencies at a

public hearing in circumstances where the Tribunal consider the inconsistency to be significant. If in the course of giving evidence any

witness gave evidence which was apparently inconsistent with his prior statements, the Tribunal would depart from its procedure of

maintaining the confidentiality of earlier prior statements where it had considered the inconsistency had founded to amount to a

significant or glaring inconsistency.”

205. There is no evidence in this case that either of those things occurred. Moreover, even after the unforeseen events of Mr.

Gilmartin’s testimony on the 4th March, 2004, and subsequent days, the Tribunal did not consider the events which had happened

sufficiently “exceptional” to disclose documents manifestly inconsistent with some of what he had said. These facts seem to me to

argue inexorably for the finality, even in the Tribunal’s own mind, of the decisions already made to withhold material. And when Mr.

O’Callaghan took the matter to the Courts, the Tribunal fought doggedly to preserve the secrecy of the withheld material, even the

prior inconsistent statements.

Even if the decision was final.

206. The Tribunal next argued that even if their decision was to be regarded as final, that fact would not necessarily preclude them

from simply readdressing the issue of the significance of the contradictory material at a fresh sitting. For this proposition they relied

on an English case, AMEC Projects Ltd. v. Whitefriars City Estates Ltd. [2005] 1 All E.R. 723. This was a case about a construction

contract which led to a dispute between the parties who were contractor and sub-contractor. The dispute was referred to

adjudication under an English statutory procedure. Due to an apparently mutual error, the wrong person was appointed as

adjudicator. This came to light when a judge refused to enforce his award for want of jurisdiction. By that time, however, the person

who should have been appointed to adjudicate had died. Accordingly the first adjudicator was again appointed to hear the case

again, but one party objected on the grounds that, having decided the dispute against it once, he could not decide again with the

necessary impartiality.

207. In my view, the factual matrix of AMEC is quite different from that of the present case. The point at issue in AMEC was a purely

technical one and the case did not raise the issues of constitutionally protected rights as this one does. Moreover the adjudicator had

conducted a proper hearing, with both sides represented and fully heard. Neither side complained of the hearing or the procedures

adopted for it. Neither alleged that decisions had been taken in secret or that relevant material had been withheld, which is the nub

of the applicants’ case here. Given these fundamental distinctions it would be inappropriate for me to consider whether this case was

correctly decided in its own terms and otiose for me to consider whether it should be followed here. I note, however, that the English

Courts have had no difficulty in intervening on the ground of a reasonable apprehension of bias in a case where such an apprehension

arose from an act of the adjudicator. See Discain Projects Services Ltd. v. Opecprine Development Ltd., (Queen’s Bench Division,

Technology and Construction Court, unreported 11th April, 2001).

Necessity.

208. The Tribunal next raises a defence of Necessity. That is, it contends, that even if there is a reasonable ground to apprehend

bias, the hearing must nonetheless proceed before the Tribunal as presently constituted because in no other way can the important

issues referred to in the Dáil Resolutions be inquired into.

209. The doctrine of necessity is, to my mind, an ancient and now limited one. In O’Neill v. Beaumont Hospital cited above, Finlay C.J.

says of it:

“It is not a dominant doctrine. It could never defeat a real fear and a real reasonable fear of bias or injustice, but it is a

consideration in relation to the question of the entire board being prohibited”.

210. The facts of the O’Neill case have already been summarised. In the result, the Court prohibited three members of the Board who

had made express statements indicating prejudgement of the merits of the issue from sitting on the Board when it considered the

question of whether the plaintiff’s probationary service had been satisfactory.

211. The incorporation of the European Convention on Human Rights into Irish Law effected by the European Convention on Human

Rights Act, 2003, is of some significance here. Kingsley v. UK [2002] 35 EHRR 10, 177 related to an utterance by a Lady Littler who

was at the relevant time chairwoman of the Gaming Board. She made a speech at a luncheon the burden of which was that she did

not regard the applicant as a fit and proper person to have the conduct of a casino. Later, the Gaming Board in formal session made a

finding to the same effect. The Court of Appeal, applying the former test used in Great Britain - whether there was a ‘real danger’ of

bias - refused judicial review. The Court also said that even if there was such a danger, it had to be discounted in view of the

necessity for the Gaming Board to hear the relevant application. The applicant was refused leave to appeal to the House of Lords, the

Court finding that the relevant decision could not be delegated and that:

“if [the Board] were actuated by bias, apparent or real, then the decision would still have to be made by them. Therefore,

on the doctrine of necessity, which is accepted, there could have been no meaningful independent panel and the decision

would have to stand because the decision has to be made by the Board and could not be delegated to the independent

panel”.

212. The applicant then brought proceedings in the Court of Human Rights. At paragraph 32 of the Report the relevant Chamber of

that Court considered that the decision making body “did not present the necessary appearance of impartiality”. However, on the

ECHR case law, this would not have been a breach of the Convention if the proceedings “are subject to the subsequent control by a

judicial body that has full jurisdiction and does provide the guarantees of Articles 6(1)”. The Strasbourg Court held that because there

was no remedy for the lack of impartiality before the English Courts, by virtue of the doctrine of necessity, the English law was in

breach of Article 6 of the Convention.

213. Apart altogether from this, I can see no reason why the present members of the Tribunal must necessarily conduct the inquiry

insofar as this concerns Mr. O’Callaghan and his associates. The present members of the Tribunal are themselves the replacements of

the original sole member and I can see no reason why they should not themselves be replaced, either in general or insofar as the

issues involving Mr. O’Callaghan, Mr. Deane and their companies are concerned. Accordingly I believe, for reasons both factual and

legal, that the doctrine of necessity has no application here.

Prematurity.

214. Finally, the Tribunal make a submission that the applicants’ proceedings are premature. The Tribunal accepts, of course, that it

would not have been open to the applicants to wait for the result of the inquiry and then seek judicial review on the ground of

apprehended bias. But it submits that the applicants should have waited until the end of the evidence on the modules affecting Mr.

O’Callaghan and Mr. Deane and then applied to court. Perhaps, says the Tribunal, at that stage their concerns would have been

quieted by the scope afforded them for cross-examination or by rulings of the Tribunal, or otherwise.

215. In my view this submission is insupportable in law and defies commonsense. A party who delays in asserting bias runs the risk of

being deemed to have acquiesced in the hearing before the person allegedly biased or ostensibly biased. This rule is soundly based: if

such a point is not taken as early as possible other people will incur substantial costs and the expectation of finality will be

disappointed. In the context of this enormously prolonged and enormously expensive Tribunal those grounds weigh even more heavily.

The Tribunal is now in its tenth year and an estimate of a further year to deal with the modules touching Mr. O’Callaghan was made

on the hearing of this appeal without contradiction. I do not know what the costs to Mr. O’Callaghan or the other parties represented

of that representation for that period would be but I suspect they would be enormous. It would be a manifest injustice to compel a

party to endure a year of hearings before a Tribunal he apprehended to be biased rather than to move immediately the grounds for

apprehending bias arose. Furthermore I believe that if Mr. O’Callaghan, Mr. Deane and the others had waited that additional year, the

Tribunal would as a matter of near certainty have accused them of acquiescence, and would have had a strong case in doing so.

The correspondence.

216. On the 13th September, 2005 after the applicants had obtained sight of a good deal of the previously withheld material, their

solicitors wrote a letter on their behalf to the Tribunal complaining bitterly of the manner in which their clients had been treated by it,

based in the main on the newly revealed material. After two holding letters the Tribunal wrote a twenty-one page response, through

its solicitor, on the 26th September, 2005. Both letters are very strongly worded.

217. In one important respect, the letter written on behalf of the applicants goes further than it was necessary for them to go in this

judicial review hearing. I can easily accept that the terms of this letter would have been offensive to the members of the Tribunal,

though I also consider that the Tribunal’s withholding of relevant material, though not malicious, was egregious. It was in my view

inherently likely that, once the nature of the withheld material was revealed, it would give rise to deep resentment and grave

apprehensions on the part of the persons from whom it was withheld.

218. For the purpose of this hearing, attention focussed on the conclusion to the Tribunal’s lengthy letter in reply. The following

sentence in particular was emphasised;

“The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is

intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal

fairly and impartially with the issues involving your clients.”

219. The Tribunal’s solicitors then asserted that her clients would continue to act fairly and impartially.

220. As might be imagined, the applicants’ emphasis is on the sentence quoted and its suggestion that the concerns expressed as to

the impartiality of the Tribunal are false and lacking in legitimacy.

221. I do not find it necessary to have regard to the correspondence of September, 2005 in order to find that the applicants have

established a reasonable apprehension of bias in the form of prejudgement. But I consider that that correspondence is illustrative of

the total collapse of trust and confidence, and mutual respect, between the Tribunal on the one hand and the applicants on the

other. It is not reassuring to be told that the Tribunal will continue to be fair and impartial in a paragraph which begins with an

assertion that the applicants are pursuing a course calculated to give a false impression that they have legitimate concerns.

222. It must not be forgotten that the background to this litigation was a grave error on the part of the Tribunal in failing to disclose

relevant material. It is striking that all of the material which was withheld (and each side had ample opportunity to draw any part of it

to the attention of the Court) was such as tended to protect Mr. Gilmartin as a witness and to frustrate any attempt to undermine

his credibility, reliability or accuracy. I have said several times and repeat now that there is no evidence whatever of pre-existing

malice or ill will on the part of the Tribunal or any of its members towards Mr. O’Callaghan or his associates. But there is ample

evidence for reasonable apprehension that the Tribunal have prejudged issues to do with the credibility and reliability of Mr. Gilmartin

and, by necessary implication, the credibility and reliability of the persons contradicting him.

223. Equally, I do not find it necessary to consider the point argued on behalf of the applicants relating to a remark attributed to a

member of the Tribunal. From the applicants’ point of view, that remark was at best ambiguous and could not in itself ground relief.

Sensitive information.

224. As indicated earlier in this judgment, some of the withheld material is sensitive in that it has the capacity to be damaging, or

deeply distressing, to persons who are either not involved at all with the matters the Tribunal is investigating or are not involved in

any matter which the Tribunal is proposing to examine in public. Some of this material has an air of great improbability about it.

Indeed, in some cases, it is this very improbability which makes the material useful for the purposes of cross-examination. In my view

the sensitivity of the information is not a reason for withholding from a person against whom the same originator has made damaging

allegations which the Tribunal is minded to inquire into in public. I have already commented on the fact that both the Tribunal and the

applicants have dealt with this topic with great discretion. Nor have there been any leaks of such material either before or after it

came into the possession of the applicants.

225. In my view the potential impact of some of this material on the witness’s credibility is such that it is wrong to conceal it from the

applicants. The witness will either agree that he made the allegations in question, or he will deny it. In the latter event he would be in

direct conflict with the Tribunal personnel themselves. Equally, he will either assert the truth of what he said or will withdraw it. Either

course may have obvious consequences for credibility. It would be a matter for the applicants’ advisers as to whether or not, and in

what form, to deploy this information and for the Tribunal to control cross-examination, having regard to the other material available,

the nature of the witness’s initial answers, the power to avoid undue concentration on collateral issues and its inherent powers.

Overview.

226. I wish to draw attention to what I consider to be an important statement made by Justice Cory of the Supreme Court of Canada

in Canada (Attorney General v. Canada (Commission of Inquiry on the Blood System) [1997] 3 SCR 440. Justice Cory (who after his

retirement became well known here due to his work in relation to certain unsolved homicides connected with the troubles in Northern

Ireland) was speaking, in that case, in the context of a public inquiry. At paragraph 31, p.458 of the Report, he said:

“The Inquiry’s roles of investigation and education of the public are of great importance. Yet those roles should not be

fulfilled at the expense of the denial of the rights of those being investigated. The need for careful balancing was

recognised by De Cary JA when he stated at paragraph 2 ‘the search for truth does not excuse the violation of the rights

of individuals being investigated’. This means that no matter how important the work of an Inquiry may be, it cannot be

achieved at the expense of the fundamental right of each citizen to be treated fairly.”

227. I very much regret that I must conclude that Mr. O’Callaghan, Mr. Deane and their associated parties have not been seen to be

treated fairly by the Tribunal to date. The precise form of unfairness to which they have been subjected is important to the resolution

of the present dispute. The Tribunal erred in two quite different ways. It is obvious that, as was said by Hamilton C.J. in Haughey v.

Moriarty [1999] 3 IR I at p.54:

“The essential purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to

the matters of urgent public importance which it is to inquire into”.

228. This Tribunal, most unfortunately, started its public hearings into the Quarryvale I module by withholding certain facts from the

applicants and from the public: the facts withheld were previous statements made by Mr. Gilmartin on topics of great importance to

the Tribunal. This became known in circumstances set out above. It is important to stress that this error was no mere technicality.

The High Court declared that it “amounts to a failure by the [Tribunal] to observe and protect the applicants’ rights to fair procedures

and to natural and constitutional justice.” The Supreme Court upheld this declaration. The Tribunal opposed both in the High Court

and the Supreme Court the first-named applicant’s claim that he was entitled to disclosure. Even after the principle had been

established, the Tribunal contested the disclosure of various individual documents: I do not accept that it was simply seeking

clarification of the earlier orders: it was seeking to minimise disclosure. (See pp. 2 - 12)

229. Accordingly, the Tribunal has, by wrongly concluding that relevant documents could be withheld from the applicants, put itself in

the position of being the defeated opponent of the first-named applicant in hard fought and expensive proceedings. But this is merely

background: it does not form the basis of the present proceedings.

230. Having lost the earlier judicial review proceedings, the Tribunal disclosed certain documents. The most relevant of these are

discussed above at pp18-54. One needs to understand these documents in order to understand the claim of prejudgement.

231. My conclusion is that it is a reasonable inference from the withholding of the material discussed at those pages that the Tribunal

have indeed prejudged certain vital issues (pp78 - 82). They have withheld even certain statements in direct contradiction of the

allegations Mr. Gilmartin now makes. I consider that these decisions to withhold were quite wrong both objectively and by the

Tribunal’s own standards and extraordinarily unfair to the applicants (pp12 - 18, 62 - 84). I note that in every instance the effect of

withholding the information is to protect Mr. Gilmartin and to handicap those who dispute what he says.

232. I do not accept that the fact that the previously withheld documents are now available ends the applicants’ grounds of

complaint.

233. If they are now to use the material, they must use it in argument and cross-examination before those who took the decision to

suppress it, and hope to persuade those same people that they were wrong in their previous private assessment of the material (see

pp104 - 110). This is a task which no litigant should be called upon to undertake, because it lacks even the appearance of fairness

and of equality of treatment.

234. I have no doubt that the decisions to withhold this material were taken as a result of a process of assessment of its truth,

reliability and/or significance. I fully accept that the Tribunal did not act out of any malice or improper feeling towards the applicants.

Indeed, it is this fact that allows one to conclude that it took the decision to suppress on the basis of the sort of assessment I have

just described (see pp78 -84; 90 - 91). Moreover, the decision to withhold led to a further decision by the members of the Tribunal to

pay no regard whatever to the suppressed material in their decision making processes. (See p.57)

235. In several cases the Tribunal has attributed the decision not to circulate particular material to a factual mistake on its part in

relation to the materials meaning or significance. In one case it says that it thought that an important document related to a meeting

other than the very dramatic one to which it did in fact clearly relate (see pp 30 - 37). In another case it says that it was uncertain

whether a particular phrase had been used by Mr. Gilmartin or by its own counsel. (See pp 48 - 53). For the reasons set out I cannot

accept these explanations as accurate and consider that the Tribunal’s collective memory has become confused due to lapse of time

in those respects.

236. I do not accept that the decisions to withhold the various classes of material in question were lacking in finality or subject to

later revision. Nor do I accept that the acts of withholding took place in the private investigative stage of the Tribunal: they clearly

took place at the time the Tribunal circulated its brief of documents for the public hearing in December, 2003 and January, 2004 and

again at the time of its later rulings in March, 2004 during the course of the public sittings. But the assessment and judgement of the

material, which led to it being withheld, took place earlier in private and without any opportunity for the applicants to be heard. (pp.

104 - 110)

237. I do not consider that the Tribunal is entitled to rely on the defence of necessity to justify continuing to adjudicate on the

allegations involving the applicants, on the basis that no-one else can do it. On the contrary, the disqualification which I find to exist

extends only to the existing members of the Tribunal. These, if it is thought desirable to do so, can be replaced by others in exactly

the same way that they in turn replaced the original sole member of the Tribunal (pp. 112 - 115).

238. It follows from the last sentence that the case cannot be regarded as one which can have the consequence of stopping the

Tribunal from investigating the applicants further. It relates only to the composition of the Tribunal as it presently stands.

239. I very much regret that I must conclude that Mr. O’Callaghan, Mr. Deane and associated parties have not been and are not now

likely to be treated with manifest fairness by the Tribunal. I fully accept that the members of the Tribunal (like the judge in the Well

Woman case cited above) sincerely believe that they can hear and make findings on the allegations against those parties in a fair and

unbiased manner. But I cannot accept, after all that has occurred, and particularly after seeing the documents the Tribunal saw fit to

withhold, that the applicants, or an informed, impartial and reasonable observer, can be expected to accept that and to overcome

clearly reasonable apprehensions to the contrary. I believe that, if the Tribunal is permitted to continue to sit and proceed to findings

in relation to the allegations against the applicants, that would represent a very marked coarsening of our standards of procedural

fairness.

Conclusion.

240. For the reasons stated above I would allow the appeal and grant appropriate relief.