Judicial review dismissed; Tribunal of Inquiry not biased despite allegations of unfairness and refusal to release documents.

THE SUPREME COURT

No. 2006/398

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

BETWEEN

OWEN O'CALLAGHAN, JOHN DEANE, RIGA LIMITED & BARKHILL LIMITED

APPLICANTS/APPELLANTS

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY &

JUDGE GERALD KEYS MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS/RESPONDENTS

JUDGMENT of MR JUSTICE FENNELLY delivered on the 30th day of March, 2007.

1. These are judicial review proceedings in which the Appellants ask this Court for orders of prohibition and certiorari with the object

of preventing the Respondents from further investigating or making any findings in relation to matters affecting them. The proceedings

were dismissed by the High Court (Smyth J) in a judgment dated 10th October 2006.

2. The Appellants claim, firstly, that the Respondents have not treated them fairly, in particular by not treating them impartially in

comparison with a witness, Mr Tom Gilmartin, and, secondly, that the Respondents have behaved in such a way as to give rise to a

reasonable apprehension of objective bias.

3. The Tribunal of Inquiry into certain Planning Matters and Payments was established in October 1997 in order to investigate the

planning history of certain lands in North County Dublin. The Terms of Reference of the Tribunal have been amended or expanded on a

number of occasions. The Respondents are the current members of the Tribunal.

4. The first-named Appellant, to whom I will refer as Mr O’Callaghan, is a property developer and director of a number of companies,

including the third and fourth-named Appellants. He has been involved in important property development projects in Ireland and in

the United Kingdom for many years. His involvement with the Tribunal arises out of his acquisition, through the fourth-named

Appellant, of an interest in the Quarryvale site in West County Dublin. It has since become the site of the Liffey Valley Shopping

Centre. The second-named Appellant is a well-known solicitor and a consultant in the firm of Ronan Daly Jermyn in Cork. He also is a

director of the third and fourth-named Appellants. He has participated with Mr O’Callaghan in a number of property developments.

5. The Tribunal has, over a number of years been investigating allegations made by Mr Tom Gilmartin, who was at one time involved in

assembling parts of the lands which constituted the Quarryvale site. In connection with that aspect of the Tribunal investigation, Mr

O’Callaghan and the other Appellants have made very extensive discovery of documents in their possession. Mr O’Callaghan has made

a number of statements to the Tribunal during its investigative phase. All of this led up to the commencement of the module which

the Tribunal has designated as Quarryvale 1, and out of which the complaints made by the Appellants in the present proceedings

essentially arise.

6. The Tribunal conducted preliminary investigations in private into matters related to the Quarryvale matter. It then decided to

proceed to hold public hearings in early 2004.

7. On 12th December 2003, the Tribunal circulated a document entitled “EXPLANATORY MEMO RE REZONING MODULE.” This described

the procedure which the Tribunal intended to follow in its then forthcoming public sessions. It will be necessary to return to this

document. By letter dated 26th January 2004, the Tribunal gave notice to parties interested in the Quarryvale 1 module, including Mr

O’Callaghan, that it would shortly commence public hearings in relation to that module. It stated that this would involve Mr Thomas

Gilmartin’s business dealings in Dublin between 1987 and 1990. The Quarryvale 1 brief contained in excess of 3200 pages. It included

statements from a number of proposed witnesses accompanied by relevant documentation. One of these was a statement from Mr

Tom Gilmartin, dated 25th may 2001, large parts of which had been redacted. There was enclosed a further “EXPLANATORY MEMO” on

terms broadly similar to the memorandum of 12th December 2003. This outlined the procedure to be adopted by the Tribunal in its

then forthcoming public sessions.

8. The only allegation made against Mr O’Callaghan in the material disclosed with the Quarryvale 1 brief was contained in the enclosed

statement of Mr Gilmartin. It was that Mr O’Callaghan was present in Buswell’s Hotel in Dublin in December 1988 when a demand was

made of Mr Gilmartin for £100,000 by Councillor Finbarr Hanrahan. It will be necessary to return to this and other matters, which form

the nucleus of Mr O’Callaghan’s allegations of unfairness.

9. At this point, I will refer to the events which led to earlier judicial review proceedings, O’Callaghan v Mahon and others ( [2005]

IESC; [2006] 2 I.R. 32), and how they arose, as they also are central to the present proceedings. I will refer to those proceedings as

O’Callaghan v Mahon No 1.

10. On 3rd March 2004, Mr Gilmartin commenced his evidence at a public sitting of the Tribunal. Mr Gilmartin made a large number of

extremely serious allegations against Mr O’Callaghan. These were allegations of which it is common case that Mr O’Callaghan had no

prior notice. Indeed, it seems clear that the Tribunal and its counsel were also taken by surprise. One of Mr O’Callaghan’s complaints

is that the Tribunal made no attempt to stop Mr Gilmartin or to control him. The gravamen of these allegations is summarised at

paragraph 13 of the affidavit of Mr O’Callaghan in the present proceedings. They are conveniently summarised also in the judgment of

Hardiman J delivered on 9th March 2005 in O’Callaghan v Mahon No 1. as follows:

“This evidence featured a number of strongly worded and personalised attacks on Mr. O’Callaghan, whom he described as

a crook and a blackmailer and as someone who had held him up to ransom. His more specific allegations, of which he had

apparently given no notice, may be summarised as follows:

Mr. Gilmartin was shown by counsel for the tribunal the 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.

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.

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.

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

declared bankrupt.

That Mr. O’Callaghan had bribed a named councillor.

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.

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.

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

allegations.”

11. It emerged in the course of cross-examination of Mr Gilmartin on behalf of another party that, in addition to the written statement

of Mr Gilmartin which had been circulated, Mr Gilmartin had provided other written and oral material to the Tribunal. In particular, he

had provided a statement to his then solicitor, which the latter had provided to the Tribunal, though under conditions of strict

confidentiality and subject to other caveats.

12. I do not wish to go into the circumstances in which the Tribunal declined to make these earlier documents available in any detail.

Part of the reasons for the Tribunal’s decisions forms part of the complaint made in these proceedings and I will consider them in that

context. It suffices, I think, to recall the following points. When counsel asked Mr Gilmartin, in the course of cross-examination,

whether he had any objection to counsel for affected parties being allowed to see the earlier material, the Chairman of the Tribunal

intervened to rule that it was not a matter for Mr Gilmartin but for the Tribunal to decide what documents could be referred to. Later,

in the course of exchanges with counsel, the Chairman stated that, if there was any “significant or glaring” inconsistency between

the evidence contained in material which had not been disclosed and the statement of a witness or with his evidence, the material

would be brought to the attention of the Tribunal.

13. In the light of these developments, solicitors for the Appellants wrote to the Tribunal on 18th March and 22nd March 2004 seeking

copies of earlier statements. On 24th March 2004, the Tribunal formally ruled that the documents in question were covered by a

principle of confidentiality. It had, it said, “a duty of confidentiality to persons from whom it has received documents or information in

confidence.” That ruling is set out in full in the judgment of Hardiman J in O’Callaghan v Mahon No 1.

14. Mr O’Callaghan (but not the other Appellants in the present proceedings) promptly applied for leave to apply for judicial review of

that decision. Leave was granted by order of the High Court dated 1st April 2004. The High Court (O'Neill J) granted the relief sought.

An order of certiorari quashing the decision of the Tribunal was made on 14th July 2004. The order included a declaration to the

effect that the refusal of the Tribunal to permit Mr O’Callaghan “through his representatives access to the documents which are

relevant to the present or current module of the inquiry (and not to include notes made by counsel solely for their purpose but to

include information recorded or transcribed from the Notice Party [Mr Gilmartin ] by counsel) recording prior oral and written

statements by Tom Gilmartin to the Tribunal ……for the purpose of cross-examining the said Tom Gilmartin amounts to a failure by the

Respondents to observe and protect [Mr O’Callaghan’s] rights to fair procedures and to natural and constitutional justice.”

15. The Tribunal appealed the High Court order to this Court. By order dated 15th March 2005, this Court dismissed the appeal, but

remitted the matter to the High Court in order to determine the question of what documents should be made available to Mr

O’Callaghan. Hardiman J, in his judgment reviewed the history of Mr O’Callaghan’s dealings with the Tribunal in great detail and

concluded:

“A full and unhampered right to cross-examine a person who makes grave allegations against another at a tribunal of

inquiry is an important constitutional right. It cannot be impinged upon without a firm basis in law, which must itself be

consistent with the Constitution. The only basis suggested here is a unilateral policy of confidentiality adopted by the

tribunal, never communicated to Mr. O’Callaghan and doubtfully, if at all, communicated to Mr. Gilmartin. The tribunal’s

status as master of its own procedures does not extend to interference with so vital a constitutional right: such

interference could not possibly be described as procedural in nature.”

16. Geoghegan J, however, with whom the other members of the Court agreed, while agreeing that the decision of the Tribunal should

be quashed, took a narrower view. He said:

“A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient execution of its work

requires that there be such a policy. A literal application of court procedures will often not be either necessary, desirable

or efficient. A tribunal is also perfectly entitled to conduct separate hearings of separate modules and to try as far as

possible to discipline counsel and the witnesses so that the evidence at any given time is confined to the evidence

relevant to that module.

This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may

have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested

and which may not be available to a court of law, it is always bound to ensure, as far as possible, compliance with

constitutional rights and obligations and that, of course, includes the vindication of a person’s good name. For all the

reasons put forward by Hardiman J. much more eloquently than I would be able to do, it was absolutely essential that the

documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the

extraordinary circumstances where wild allegations were flying around the tribunal against Mr. O’Callaghan and of which he

had no prior notice, be duly produced. The tribunal relies on an understanding of confidentiality. It is not suggested,

however, that the confidentiality was absolute nor could it have been. The tribunal could not possibly ensure absolute

confidentiality relating to information, which, for instance, might turn out to be highly relevant to the very matters that it

was investigating. Any such confidentiality must necessarily be limited to information, in the event found not to be

necessary to be used at an oral hearing. If, however, the information becomes absolutely essential for the purposes of a

cross-examination pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can

be judicially reviewed for doing so.

The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to

particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a

wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that

reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In

particular having regard to the clear views of this court in In re Haughey it would not seem to me to be necessary to

consider to what extent the numerous cases and statutes relating to the law of evidence for the purposes of the courts

must necessarily be applied to every cross-examination in a tribunal.”

17. Following remittal of the case to the High Court, there were ongoing disputes as to the extent to which the Tribunal were entitled

to redact particular documents. These disputes were the subject of rulings by O’Neill J. In a considered judgment of 29th July 2005,

he decided that certain categories of redaction were permissible and that others were not.

18. Following O’Callaghan v Mahon No 1. , the Tribunal discovered additional documents in two stages. Firstly, documents were

discovered in redacted form. An accompanying note listed various reasons for the redactions. These included the fact that the

redaction related to matters that the Tribunal had determined not to investigate in public; that it related to personal details of an

individual and that its publication might constitute unjustified interference with his rights; that, for various reasons the material

redacted did not relate to matters being investigated. Secondly, following the judgment of O’Neill J, some redactions were removed in

compliance with that judgment. It is the discovery of these additional documents which has led to the present proceedings. Mr

O’Callaghan, in his affidavit, states that he was greatly disturbed by the contents of these documents and that the Tribunal, acting in

accordance with any standard of basic fairness and intending to treat all parties appearing before it equally, would have disclosed

these documents from the very beginning. However, these allegations relate to the substance of the claim made in the proceedings

and I will return to consider them more fully at a later point in this judgment.

19. On 13th September 2005, the solicitors for the Appellants wrote to the solicitors for the Tribunal. The stated purpose of the letter

was to “complain about the unfairness of the manner in which the tribunal [had] proceeded against [their] clients as compared to the

tribunal’s star witness (and principal accuser in respect of [their] clients) Tom Gilmartin.” The letter contained a lengthy account of

the Appellants’ complaints. In particular, it accused the Tribunal of actual bias. The letter accused the Tribunal of huge disparity of

treatment between that afforded to the Appellants and that afforded to Mr Gilmartin, who was described repeatedly throughout the

letter as the Tribunal’s “star witness.” All of this led to the following paragraph:

“In the light of the foregoing our clients cannot have any faith in the fairness of the process or procedures of the tribunal.

They are firmly of the view (and we have so advised) that this tribunal cannot fairly adjudicate upon the allegations of

impropriety against them. In particular, our clients reasonably suspect bias and partiality on the part of the tribunal in

their treatment of Mr Gilmartin on the one hand and our clients on the other. In those circumstances, we are writing to

invite you now to confirm that in the light of the foregoing the tribunal will desist from further investigating or making any

findings in relation to matters affecting our clients or any of them.”

20. The letter concluded by stating that, in that absence of a positive response, proceedings would be commenced.

21. The substantive response of the Tribunal was contained in a lengthy letter dated 26th September 2005, which endeavoured to

provide a detailed and point-by-point rebuttal of the allegations made in the letter of 13th September. The letter contained the

following penultimate paragraph:

“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. Notwithstanding this belief on the part of the Tribunal, your

clients may rest assured that the Members of the Tribunal will continue to act fairly and impartially in carrying out the

tasks given them by the Oireachtas and that they will reach such conclusion as may be open to them only on the basis of

the evidence heard at public sessions with which all affected parties will have been afforded the opportunity of exercising

their constitutional rights.”

22. This exchange of correspondence has been characterised as “robust” in the course of the hearing of the appeal. The Appellants

took immediate strong objection to the first sentence of the paragraph quoted immediately above, claiming that it meant that they

had been “devious and untruthful.” They rely upon it as one of their allegations of objective bias. The very least that might be said

about it is that it was unwise. I will deal with the substantive complaint based on it later in this judgment. The Tribunal attempted in

subsequent correspondence to explain it away. In a latter of 27th October 2005, the solicitor for the Tribunal stated that the

objectionable sentence related not to the clients of the solicitors but to the solicitors themselves and continued: “Once again I am

directed by the Tribunal to reiterate that the Tribunal has not concluded that your clients have been devious or untruthful in their

dealings with it and, indeed, have never used these words in connection with either you or your clients.”

23. On 28th November 2005, the High Court (Abbot J) made an order granting leave to the Appellants to apply by way of judicial

review for an order of prohibition or an order of certiorari so as to prevent the Tribunal from further investigating or making any finding

in relation to matters affecting them. The gist of the complaints identified as grounds for the application is as follows:

- Mr Gilmartin made a large number of profoundly serious allegations against the Appellants;

- These allegations were false;

- They affected the Appellants’ good name and reputation in business;

- The Appellant had no prior notice of these allegations;

- The Tribunal did not either directly or through its counsel attempt to prevent Mr Gilmartin from making these allegations;

- In the course of cross-examination, it emerged for the first time that Mr Gilmartin, in meetings with the Tribunal team,

had made certain oral and written statements, which had not been circulated with the written brief;

- The Tribunal ruled that it would not conceal from interested parties information which suggested that there was a

glaring inconsistency between an account given on a previous occasion and one given publicly;

- The Tribunal, nonetheless, refused to allow counsel for the Appellants to have access to earlier documents or to cross-

examine about them;

- The Tribunal’s further ruling of 24th March 2004 and the history of O’Callaghan v Mahon No 1. was then recounted;

- The Tribunal’s refusal to permit the Appellants to cross-examine on the basis of the undisclosed documents was a

breach of the principles of natural and constitutional justice and basic fairness of procedures;

- From the disclosure of documents it was evident that Mr Gilmartin had had contact with counsel for the Tribunal on at

least 36 occasions and they travelled to London to meet him;

- The information and documents which had not been disclosed were highly relevant and disclosed serious inconsistencies

with the evidence given by Mr Gilmartin;

- Knowing of these inconsistencies, the Tribunal determined that there were no inconsistencies;

- A member of the Tribunal made a remark to the effect that Mr O’Callaghan knew one of the key witnesses at the

Tribunal;

24. The key allegation is contained in the following:

“The Applicants cannot have and do not have any faith in the fairness of the process or procedures of the Tribunal. They

are of the view and are entitled to have the view that the Tribunal cannot fairly adjudicate upon allegations of impropriety

against them. The Applicants reasonably suspect bias and partiality on the part of the Tribunal in the treatment of Tom

Gilmartin on the one hand and of the Applicants on the other hand. Alternatively there is a real likelihood of bias or

partiality.”

25. As the case was presented to the High Court, it was summarised by the learned trial judge, Smyth J, as consisting of two central

claims: Firstly, that from a reading of the documents newly disclosed as a result of O’Callaghan v Mahon No 1. , it was clear that the

Tribunal had denied the Appellants fair procedures and had not treated them fairly in comparison with Mr Gilmartin; secondly, that

there was an appearance of bias and partiality on the part of the Tribunal. Those have remained the two broad headings of complaint,

as presented in the course of the appeal.

26. The learned trial judge noted the Appellants’ contention that the Tribunal could not credibly have found that there were not

inconsistencies, which were, to use the Tribunal’s own language, “gross, or glaring or significant.” He considered that any prior

erroneous assessments of the consistency or inconsistency of evidence stood set aside and could be addressed in open session at

any future hearing of the Tribunal. In a passage which has been subjected to particular criticism on this appeal, he found it

inappropriate to “examine in minute detail a large number of issues which relate to factual events or to carry out microscopic

investigation in relation to decisions made by the Tribunal in the course of its deliberations in relation to particular documents or

events.” He was satisfied that the Tribunal had adapted its policies following O’Callaghan v Mahon No 1. and was anxious that Mr

O’Callaghan be given a full opportunity to cross-examine.

27. The learned trial judge reviewed and rejected a large number of individual complaints of unequal treatment. He did not accept that

there was any evidence of inequality of treatment. I will refer, at a later point, to the findings of the learned trial judge on the issue

of fairness.

28. He also rejected the allegation of objective bias, i.e., that the Tribunal had formed a view that certain inconsistencies were

insubstantial and could not, therefore, any longer assess the credibility of Mr Gilmartin. He said that, whatever view the Tribunal had

taken prior to O’Callaghan v Mahon No 1. , must now be reviewed by it: the effect of the decision in that case was that “once any

inconsistency appeared it was the entitlement of the Applicants to be informed of it and it was not the prerogative of the Tribunal to

determine the significance or effect of same until after such had been subject of cross-examination and/or submissions thereon;……

any tentative views that may have been formed must be recast………”

29. The learned trial judge reviewed at length the authorities with regard to the interpretation of the test for the establishment of

objective bias. Since these will need to be reviewed later in this judgment, it suffices to say that the learned trial judge concluded

that no case for objective bias had been made out.

30. It is not necessary to set out in full the grounds of appeal advanced in the notice of appeal of the Appellants. They amount to a

comprehensive challenge to the High Court judgment. The principal criticisms of the High Court judgment are:

· Confusion of subjective and objective bias;

· Applying the incorrect test for objective bias or misinterpreting the test;

· Considering irrelevant matters, in particular the assurances of the Tribunal that they would respect the Appellants’ right

to fair procedures and to test Mr Gilmartin’s evidence in cross-examination;

· Failure to consider the detailed individual complaints of the Appellants;

· Failure to consider the decisions made by the Tribunal as to inconsistencies between the evidence of Mr Gilmartin and

the documents;

· Wrongly stating that the Tribunal was entitled to assume that Mr Gilmartin had not set out to perpetrate deliberate

falsehoods;

· Failure to hold that Mr Gilmartin had been given special or privileged status.

31. The Appellants have presented very detailed written and oral arguments to the Court in their appeal. The submissions are made

under two headings:

§ The Appellants have not been fairly treated by the Tribunal: they have been denied fair procedures and have been

treated in an unequal manner in comparison with Mr Gilmartin; this cannot now be put right;

§ There is an appearance of or reasonable suspicion of bias and partiality on the part of the Tribunal.

32. In truth it is difficult to segregate these two headings. Counsel for the Appellants did not really develop the first of these

complaints as a separate heading. In particular, Mr Paul Gallagher, Senior Counsel, appearing for the Appellants confined his oral

arguments almost entirely to the issue of objective bias. The Tribunal cannot, of course, as it rightly accepts, any longer defend its

decisions not to disclose prior statements of Mr Gilmartin. Those decisions were quashed in O’Callaghan v Mahon No 1. It is common

case that the Tribunal is bound to respect the rights of the Appellants to have access to all those documents which became the

subject of the ultimate order of O’Neill J in July 2005 and to use them to cross-examine Mr Gilmartin. Hence, it cannot be contended

that the Tribunal is disabled by the mere fact of its earlier decisions not to disclose this material from continuing with its inquiry into

the affairs of Mr O’Callaghan and the other Appellants.

33. There remains, as part of the complaint of denial of fair procedures, only the argument that the Tribunal has shown itself by its

actions to be so protective of and favourable to Mr Gilmartin that it cannot be presumed to be able to judge the affairs of the

Appellants fairly. This argument overlaps to a very large extent with the claim based on objective bias. The factual basis of this

allegation can be summarised as follows. The Tribunal had shown itself to be unduly favourable to and protective of Mr Gilmartin. He

had enjoyed privileged access to Tribunal counsel. The material disclosed demonstrates some 56 individual contacts between Tribunal

counsel and Mr Gilmartin. They travelled to England to meet him. They assisted him in the preparation of an affidavit. Mr Gilmartin was

recorded as attributing remarks to Tribunal counsel to the effect that the latter had had a strong case in litigation with a bank and

that they would prove fraud against Mr O’Callaghan. This allegation of Mr Gilmartin has been expressly denied on behalf of the

respondents. That denial is now accepted. The Appellants maintain the complaint insofar as the Tribunal failed to disclose that Mr

Gilmartin had made this allegation, which it did not itself believe.

34. Responding to the argument based on lack of fair procedures, counsel for the Tribunal argued that there was no reason to

suppose that fair procedures would not be respected. It was accepted that an error had occurred when the Tribunal refused to

disclose the documents, but this did not mean that the Appellants would not obtain a fair hearing. There is a distinction between

cases where substantive decisions have been taken on the merits following an unfair procedure and the present case, where no

findings have been made by the Tribunal.

Conclusion on unfairness

35. The unfairness argument is essentially that the Tribunal has unduly favoured and protected Mr Gilmartin in comparison with Mr

O’Callaghan. It is distinct from the bias argument. It alleges actual unfairness. The learned trial judge judged this issue, which is

essentially a matter of fact. He concluded: “I am satisfied that the construction sought to be placed on the dealings of the Tribunal

with Mr Gilmartin do not in any objective sense amount to an inequality of treatment and are explained in the replying affidavits of the

Respondents.” I am satisfied that this was a reasonable conclusion and that it has not been shown to be in error. It was based on an

evaluation of the evidence advanced by the Appellants in support of their charge of unfairness against the Tribunal. Mr Gilmartin had

made a number of allegations which the Tribunal considered to be relevant to its terms of reference. The Tribunal was obliged to

investigate them. The performance of that obligation requires the Tribunal to take such steps as it thinks proper in the conduct of

that investigation. The Appellants do not contest these propositions. They complain that the Tribunal afforded excessive and

privileged access to its services and attention to Mr Gilmartin as compared with Mr O’Callaghan. That argument fails, in my view, to

take account of the fact that Mr Gilmartin was making allegations: Mr O’Callaghan was not. The Tribunal necessarily had to take care

to investigate the allegations. From time to time, those investigations took unusual forms. Certainly, counsel appear to have engaged

in work which does not normally fall to barristers. It is not for this Court to pass judgment on those matters or on the decisions made

by the Tribunal as to the course of its investigations. A particular focus of the Appellants’ criticism of the judgment of the learned trial

judge is the following dictum:

“The Tribunal, if it did form a preliminary view as to the veracity of what Mr Gilmartin was saying at the time or would say

in the future were, in my judgment, entitled to consider that he would be telling people the truth. They were in my

judgment not unreasonably entitled to assume that the man did not set out to deliberately perpetrate falsehoods.”

36. The Appellants, in their written submissions strongly, but in my view unjustly, criticise this dictum as “extraordinary.” They allege

that it means that “so far as the Tribunal is concerned the appellants are starting from a presumption that what they are saying is

untrue………The Tribunal had determined that what Mr Gilmartin was telling the truth and the appellants were not……” I regard those

assertions as completely unjustified. The Tribunal must, in the first instance, investigate allegations. It must decide whether

allegations which have been made to them justify proceeding to public hearing. Final conclusions are reached only after full public

hearings. The Tribunal has asserted that it holds this position time out of number. The Appellants’ submissions fail to appreciate the

absolute necessity for the Tribunal to do its work in stages, or to appreciate the distinction between the preliminary investigative and

the public hearing phase and to the obvious practical need for the Tribunal to make provisional decisions as to how to proceed with

its work at various stages. These do not entail judgments on credibility, but judgments that allegations are worthy of being advanced

and tested at public hearing. I believe that all the complaints of alleged unfair treatment by favouring Mr Gilmartin can be answered in

that way. I am satisfied that Smyth J was completely entitled to reach the conclusion he did. He has not been shown to have been in

error. I would dismiss the appeal insofar as it relates to alleged unfairness.

Consideration of the argument on objective bias

37. The principal argument and almost the entire focus of the Appellants’ case was that there is to an objective observer a

reasonable suspicion of bias and lack of impartiality on the part of the Tribunal.

38. I am driven by the scale and detail of the Appellants’ submissions to make one preliminary observation, to which I will return. The

learned trial judge, in a passage heavily criticised by the Appellants, remarked:

“It is inappropriate for the court to examine in minute detail a large number of issues which relate to factual events or to

carry out a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in

relation to particular documents or events.”

39. As I have already noted, the notice of appeal complains of the failure of the learned trial judge to “address the individual and

specific issues raised by the Applicants……” The written submissions of the Appellants to this Court express the Appellants’ complaint

about the impugned passage in the following terms:

“This was not a case of seeking to challenge the merits of a decision by placing it under the microscope. Rather this was

a fundamental challenge to the entire manner in which the Tribunal had treated the appellants as well as a claim of

objective bias. It is the learned judge who erred in placing some incidents complained of under the microscope separately

instead of stepping back and looking at the pattern of behaviour of the Tribunal which was disclosed. The pattern of

behaviour by the Tribunal loomed over the whole horizon and did not need a microscope or for that matter a telescope to

see it. It was there in front of everyone.” (emphasis in the original).

40. I confess to having great difficulty with this passage. It is, after all, key to the Appellants’ approach. The learned trial judge had

not referred to placing a single “decision” under the microscope. It is clear that he understood that he was being invited to carry out

“a microscopic investigation in relation to decisions [plural] made by the Tribunal in the course of its deliberations……” It will become

apparent later that whether, as a matter of law, objective bias can be inferred from a pattern of individual decisions is very much in

contention between the parties. If that is indeed the Appellants’ case, I do not see how detailed - I avoid repeating the word

“microscopic” - examination of individual decisions can be avoided. It is true that counsel for the Appellants disavowed any wish to

infer bias from a series of decisions. Nonetheless, they criticise the learned trial judge for failing to examine the decisions of the

Tribunal. In fact, the approach that was adopted to the facts was to examine at least seven separate aspects of the Tribunal’s

conduct in minute detail. Mr O’Callaghan’s grounding affidavit takes some fourteen pages and forty eight paragraphs to detail a large

number of individual complaints regarding the decisions of the Tribunal. Mr Gallagher’s oral argument, while reducing the number to

seven, nonetheless, involved highly detailed analysis of individual items of evidence.

41. It might be inferred that the Appellants were taking a different approach from the concluding sentence of the paragraph of their

submissions which I have quoted above: “It was there in front of everyone.” That sentence seems to imply that the Tribunal had

expressed in clear and overt terms a preference, in advance of hearing any evidence or cross-examination, for the evidence of Mr

Gilmartin over that of Mr O’Callaghan. That would be to prejudge the credibility of the witnesses. The Appellants do, in fact, allege

apparent or objective bias against the Tribunal on this key credibility issue. However, they have not pointed to any a priori or

advance statements of prejudgement. This aspect of the case was discussed in the context of two Australian decisions.

42. The essence of the Appellants’ case on objective bias is as follows.

43. Mr Gilmartin has made very serious allegations against the Appellants. They are disputed. Thus credibility is and will be central to

the hearings before the Tribunal. In reality, this conflict exists almost, though not entirely, between Mr Gilmartin and Mr O’Callaghan,

in particular. The Tribunal is necessarily obliged to maintain an open mind on all issues.

44. The Tribunal, in January 2004, circulated a brief in respect of its Quarryvale 1 module. In explanatory memoranda circulated both

before and contemporaneously with the circulation of the brief, the Tribunal stated that documents and information it had assembled

in the course of its preliminary investigations had been considered for their relevance to the public hearings. The brief would be

supplemented when new documents or issues came to light. Thus it contained all relevant documents.

45. At the time of circulation of the brief, the Tribunal had, in its possession, documents evidencing prior statements by or interviews

with Mr Gilmartin. These contained material which was directly or indirectly inconsistent with the single statement of Mr Gilmartin

which was circulated.

46. On 3rd March 2004, Mr Gilmartin in his evidence at a public sitting of the Tribunal, made a number of extremely serious allegations

against Mr O’Callaghan, of which he had no notice. It emerged in the course of examination by counsel for another person, that the

Tribunal had other material in its possession. This also contained material which was inconsistent with the evidence of Mr Gilmartin.

The Tribunal stated that it would disclose documents or information which revealed inconsistencies with the evidence of Mr Gilmartin.

It used different words to qualify the sort of inconsistency which would lead to a document being revealed. They were variously:

“gross;” “glaring;” “significant.” The Tribunal had such material in its possession. Its failure to disclose it was contrary even to its own

stated standard.

47. I have already summarised the decisions whereby the Tribunal declined to disclose these other documents and other information.

The Appellants claim that these decisions meant that the Tribunal was determining that the undisclosed material was either not

relevant to the matters being inquired into or that it was not inconsistent with the evidence of Mr Gilmartin and, in either event, that

an independent and unbiased onlooker in possession of all the facts would reasonably apprehend that the Tribunal thereby had

determined that Mr Gilmartin was a credible witness and that Mr O’Callaghan was not. Thus, the case of objective bias was

established.

48. This Court has, in O’Callaghan v Mahon No 1., determined that those decisions of the Tribunal, whereby it refused to disclose the

earlier statements of Mr Gilmartin, were unlawful. They were set aside. O’Neill J determined the extent of the documents which had to

be disclosed. The Tribunal now explicitly accepts, as it must, that its earlier decision not to disclose was wrongful and in breach of

the Appellants right to fair procedures.

49. Mr Gallagher insisted, in his oral presentation, that the Appellants were arguing only for the appearance of bias and that they did

not and did not need to go further. There was an appearance of pre-judgment by the Tribunal on the issue of credibility. The

Tribunal’s insistence that the Appellants now have a complete right to cross-examine cannot remedy the wrong which has already

been done. The Tribunal has made repeated rulings that documents should not be disclosed.

50. He cited Lawlor v Flood [1999] 3 I.R. 107; State (Hegarty) v Winters [1956] I.R. 320; Dublin Wellwoman Centre Ltd and others v

Ireland and others [1995] I.L.R.M. 408; O’Neill v Beaumont Hospital [1990] I.L.R.M. 419; Orange Communications Ltd. v Director of

Telecommunications Regulation and another [2000] 4 I.R. 159; Spin Communications Ltd v Independent Radio and television

Commission [1001] 4 I.R. 411; Joyce v Minister for Health and Children and others [2004] 4 I.R. 293; Landers v Director of Public

Prosecutions [2004] 2 I.R. 363; R v Watson, ex parte Armstrong 919760 50 A.J.L.R.; Locabail (UK) Ltd. v Bayfield Properties Ltd

[2000] 2 W.L.R. 870; Bula Ltd. v Tara Mines Limited and others [2000] 4 I.R. 412.

51. As to bias, the proper test was whether a reasonable man, who knew all the relevant circumstances, would consider that there

was a real likelihood of bias. Mr John M Fitzgerald, Senior Counsel, for the Tribunal said that he would not. It was relevant to note

that the three members of the Tribunal were judges of a court established under the Constitution. The Appellants had to prove bias in

the sense that the members of the Tribunal had reached a fixed final decision, that they had set minds that they had pre-determined

the matter. He cited R v Watson. There was no such evidence. He submitted, on the authority of Orange Communications, that bias

could not be inferred from a number of errors or a series of errors made in the course of the decision-making process. He cited the

judgment of Murray J, as he then was, in Spin Communications. Something occurring outside the process is required. The process

here commenced with the appointment of the former sole member, Mr Justice Flood. Mr Fitzgerald cited the Australian case of

Vakauta v Kelly (1989) 87 A.L.R., and Landers v Director of Public Prosecutions as examples of cases where a judge had made

statements which would excite, in the minds of reasonable persons, an apprehension that the judge might not bring an unprejudiced

mind to the matter before him. Mr Michael Collins, Senior Counsel, also referred to AMEC Capital Projects v White City Estates (20050

1 All ER 723.

The cases on bias

52. Modern Irish case-law is rich with examples of alleged or established objective bias. The parties did not disagree significantly with

regard to the applicable principles, save for one nuance concerning whether the affected party’s own perception in respect of bias

forms part of the test or whether the test is exclusively objective. This discussion turned on one passage from the judgment of Finlay

C.J. in O’Neill v Beaumont Hospital. That case was one of alleged pre-judgment in that the Chairman of the Board of the defendant

Hospital was recorded as having confirmed the opinion of the chief executive officer of the hospital, in a sense adverse to the

plaintiff’s interest in the extension of his contract of employment. Finlay C.J. said:

"I am satisfied that the proper standard to be applied by this Court………is the question of whether a person in the position

of the plaintiff, Mr O’Neill, in this case who is a reasonable man, should apprehend that his chance of a fair and

independent hearing of the question as to whether his services should be continued or terminated does not exist by

reason of pre-judgment of the issues which are involved in that by members of the board.”

53. At a later point of the judgment the learned Chief Justice repeated the expression, “a person in the position of the plaintiff who is

a reasonable man…” At one point in the argument, Mr Gallagher, in reliance on this passage, added that Mr O’Callaghan was or was

accepted to be a “reasonable man.” He submitted that this could be taken into account. I do not think, however, that the Chief

Justice was making a finding that the plaintiff in the case before the Court was a “reasonable man.” Nor was his conclusion based on

such a finding. Insofar as the plaintiff was drawn into the test at all, it was in the sense of a hypothetical person in the position of

the plaintiff, who was also a reasonable man.

54. Denham J used similar language in, speaking for a unanimous Court, and having cited the passage from O’Neill, in her judgment in

Dublin Wellwoman Centre:

“What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being

a reasonable person, should apprehend that his chance of a fair and independent hearing of the question does not exist

by reason of the previous non-judicial position, statements and actions of the learned High Court judge ……”

55. However, the introduction of the perception of the affected party into the test tends to confuse its strictly objective quality.

Denham J reviewed a number of judgments from various jurisdictions in her subsequent judgment in Bula Ltd. v Tara Mines Limited.

Those authorities included the dictum of Mason C.J. and McHugh J in Webb v. The Queen (1993-1994) 181 C.L.R. 41, a judgment of

the High Court of Australia:

"But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is

more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the

public to the irregularity in question. References to the reasonable apprehension of the 'lay observer' Vakauta (1989) 167

C.L.R., at pp. 573 to 574, the 'fair-minded observer' Livesey (1983) 151 C.L.R. 300; Laws (1990) 170 C.L.R. 87, the 'fair-

minded, informed lay observer' ibid., at p. 92, 'fair-minded people' Watson (1976) 136 C.L.R. at p. 263, the 'reasonable or

fair-minded observer' Vakauta (1989) 167 C.L.R. at p. 585, the 'parties or the public' Ex parte Hoyts Corporation Pty. Ltd.

(1994) 68 A.L.J.R. at p. 182; 119 A.L.R. at p. 210, and the 'reasonable person' Vakauta (1989) 167 C.L.R. at p. 576,

abound in the decisions of this Court and other courts in this country…"

56. McGuinness J, in the same case cited the dictum of Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon [1969] 1

Q.B. 577 at p. 599:

"in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at

the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if

there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at

the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded

persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And

if he does sit, his decision cannot stand."

57. The statement of principle made by Denham J at page 441 of Bula v Tara Mines seems to me to be decisive:

“The submissions in relation to the test to be applied roved worldwide. However, there is no need to go further than this

jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the

circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial

judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the

apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.” (emphasis

added)

58. In my opinion, principle requires that the test be strictly objective. Otherwise, it would be susceptible to variation dependant on

the attitude of the individual party. The court is not required to find whether the complaining party is or is not reasonable. An

unreasonable affected person is as much entitled to complain of objective bias as a reasonable one. It is the hypothetical objective

observer that matters. He or she is always deemed to be reasonable.

59. Only one addition is necessary. As stated by Finlay C.J. in O’Neill v Beaumont Hospital, the hypothetical reasonable person is one

who is not “either over-sensitive or careless of his own position.” This is probably comprehended in the notion of a reasonable

observer. It is, of course, necessary that a party who apprehends that there is a risk of bias invoke its existence. After that, the test

is purely objective.

60. It should be added that, as appears from these and other judgments that the standard to be met is, as stated by Denham J, one

of “reasonable apprehension.” This is also well grounded in the authorities. I say this because there were points in the submissions of

Mr Collins on behalf of the Tribunal when a higher standard of proof seemed to be implied: one which imputed to the Appellants a

requirement to argue that the only inference that could be drawn from its behaviour was that the Tribunal was actuated by bias.

Indeed Finlay C.J., in O’Neill v Beaumont Hospital, considered that, in applying the test to the particular facts a judge “should take

the interpretation more favourable [to the plaintiff] where there is ambiguity…” In that case he was interpreting the minutes of a

minute with a view to deciding whether the chairman had given an appearance of pre-judgment. The standard, as consistently

enunciated, is one of reasonable apprehension.

61. In considering whether pre-judgment giving rise to a reasonable apprehension of objective bias has been established in the

present case, two lines of authorities need to be considered. The first concerns the question of whether bias can be inferred from a

pattern of decisions. The second concerns the quality or extent of prejudicial statements required to satisfy the test for pre-

judgment.

62. Firstly, counsel for the Tribunal submit that bias cannot, on the authorities, be inferred from a number of erroneous decisions of

the decision-making body. Here, the Appellants allege that that the Tribunal has made repeated rulings on the relevance of the

undisclosed material and that, these rulings were wrong, in the manner related above, and consequently that it had adjudicated on

the matter of credibility.

63. Keane C.J. in Orange Communications reconsidered the law on objective bias at some length. He cited, inter alia, a well-known

passage from the judgment of the Court of Appeal in England in Locabail (UK) Ltd. v Bayfield Properties Ltd, which is cited above. He

proceeded to observe that the case before the court was one of alleged objective bias and proceeded:

“But the difficulty of proving actual bias remains and we are, of course, concerned with a case in which the trial judge

found that there was no actual bias. The authorities, however, lend no support whatever to the proposition which found

favour with the trial judge in the present case, i.e. that the court is entitled to infer from the establishment of a number

of errors in the impugned decision, or the process leading to the decision, that the decision itself was vitiated by the

existence of bias which can be equated to objective bias.

It is not surprising that no authority has been cited in support of such a proposition because it is entirely contrary to

principle. In the case of a decision by a court, a litigant who succeeds in identifying errors in a judgment is entitled to feel

aggrieved, unless they are of little consequence to the result. The law affords him an ample remedy in almost every case

by way of appeal to a superior court. In the case of decisions of the High Court, that remedy is to some extent qualified

by the reluctance of this court to interfere with findings of fact where they are based on credible evidence, but no one

has ever suggested that either at this level, or at any other appellate level, the courts are in the position that the normal

appellate machinery is not capable of remedying injustice brought about by clear errors of fact or law on the part of the

court concerned and that, in order to achieve justice in such cases, it is necessary to have recourse to so strained and

artificial a concept of bias.”

64. Barron J, in his concurring judgment stated that: “Bias always exists before the hearing or other process…” (page 221). At page

228, he said:

“However, it seems to me that the essence of bias is the existence of some factor as already explained that constitutes a

set of circumstances from which a reasonable observer might conclude that there was a real possibility that such factor

would cause the decision maker to seek a particular decision or which might inhibit him or her from making his or her

decision impartially and independently without regard to such factor. As I have already indicated, this factor must predate

the decision complained of or the contemplated hearing.”

65. Murphy J at page 241 added:

“To condemn as biased the decision of a judge or other decision maker involves two conclusions. First, that the

adjudicator is affected by some factor external to the subject matter of his decision and, secondly, that in relation to the

particular decision the external factor operated so as to tilt the judgment in favour of the successful party. The

distinction is crucial. The existence of the extraneous factor must be proved as a fact on the balance of probabilities: the

operative effect of an impermissible factor (where it does exist) is presumed.”

66. He also stated at page 245:

“……no authority was cited in support of the proposition that bias could be inferred from a series of adverse findings in a

particular case.”

67. Having quoted from the relevant conclusion of the learned trial judge in that case, he continued:

“In my view the fallacy of these conclusion results from the fact that the learned judge used her findings, and the

inferences which a reasonable person might draw therefrom, for two different purposes. First, to establish the existence

of a unacceptable extraneous factor with the potential for influencing the decision of the evaluators and, secondly, the

suspicion, belief or perception that such extraneous factors did, or might have, become operative in the instant case. The

standard of proof of the existence of bias on the one hand, and its operation on the other, are very different. It is

possible to suspect the unconscious operation of an extraneous factor but that does not prove its existence. The plaintiff

sought to prove the existence of an extraneous factor and its operation by the same evidence. In my view the evidence

was wholly inadequate to prove the fact of bias - I hesitate to use the words objective fact of bias - and without that

the reasonable observer could not prove its conscious or unconscious operation.”

68. Geoghegan J spoke to similar effect at page 254:

“I have deliberately listed in full the instances given by Lord Bingham of situations where normally bias would not be held

to exist on the one hand and situations where bias would be held to exist on the other hand. I have done this with a view

to demonstrating the type of situations which are envisaged. In every single instance Lord Bingham is talking about some

outside fact which could conceivably be seen influencing the judge. There is not the slightest suggestion that bias could

ever be established as a consequence simply of the decisions of the judge.”

69. To similar effect, Murray J, as he then was, at page 431 ofhis judgment in Spin Communications, cited above, having cited

Orange, stated:

“Moreover, for objective bias to be established it must be shown that there existed some external factor extraneous to

the decision making process which could give rise to a reasonable apprehension that the decision maker might have been

biased. Furthermore, this external factor must exist prior to the decision made.”

70. The result of all these judgments is that objective bias cannnot be inferred from the fact that a court or tribunal has made a

number of erroneous decisions. Bias, if it exists, must flow from some element external to the decision-making process. There are

many examples. The best known are some personal or financial interest of the decision-maker either in the subject-matter of the

decision-making process or in relation to the parties to the dispute over which the decision-maker is to preside. Overt and declared

bias is, of course, another example. That comes under the heading of pre-judgment. The case of O’Neill v Beaumont Hospital was

such an example.

71. The Appellants claim that this is a case of pre-judgment. They claim that that they have a reasonable apprehension, or more

precisely that a reasonable independent observer would have such an apprehension, that the Tribunal has pre-determined the issue of

credibility in favour of Mr Gilmartin and against Mr O’Callaghan.

72. As already stated, this is based on the repeated decisions, already mentioned in detail, of the Tribunal not to disclose material

damaging to the credibility of Mr Gilmartin.

73. Mr Gallagher relied, in particular, on the decision of the High Court of Australia in R v Watson, ex parte Armstrong, cited above. In

that case, a judge at the interlocutory stage of family-law proceedings, and at a time when he had not seen either party in the

witness box, ruled that “he would not accept the evidence of either party – or even an admission – unless it was corroborated.” This

was the principal complaint but there were others. A majority of the court took the view that the judge “was not at that stage

entitled to form the settled view that neither party was worthy of credit, or to impose on them both the extra-legal requirement that

their evidence must be corroborated, but a reasonable observer would have been justified in thinking that he had done so.” (emphasis

added). An order of prohibition was made. Mr Gallagher pointed to the approval of this decision in Orange Communications. Barron J,

in his judgment in Orange Communications, described R v Watson as one based on predetermination: “The judge would have

approached the case upon the basis that he would not be able to accept the evidence of either party.” (Page 224 of the judgment.)

74. The Irish case principally cited in support of the pre-judgment argument was State (Hegarty) v Winters, where the property

arbitrator had visited the lands in respect of which he was to assess compensation. He was accompanied by the engineer employed

by one party. There was no representative of the opposing party. The former Supreme Court was asked to apply to those

circumstances the rule that “in any proceedings before any tribunal called upon to decide any issue between parties not alone must

justice be done, but it must seem to be done.” (Page 334 of judgment.) Maguire C.J. cited R. v Sussex Justices, ex parte McCarthy

[1924] 1 K.B. 256, where Lord Hewart C.J. made that celebrated statement, and where the complaint was that the justices’ clerk had

retired with the magistrates. Maguire C.J. concluded:

“The action of the arbitrator in going upon the lands the subject-matter of the arbitration might, in the view of this Court,

reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. The

fundamental rule that it is necessary not alone that justice be done, but that it must seem to be done was broken and in

our opinion the award cannot be allowed to stand.”

75. Counsel for the Respondents cited other cases concerning pre-judgment. Most striking among these was a further decision of the

High Court of Australia: Vakauta v Kelly, cited above. In a case of assessment of damages for personal injury, the trial judge, before

hearing the evidence of the appellant’s medical witnesses, referred to them as “an unholy trinity.” He continued: that they belonged

to “the usual panel of doctors who think you can do a full week’s work without arms or legs;” whose “views are almost inevitably

slanted by the [Government Insurance Office] by whom they have been retained consciously or unconsciously.” The High Court of

Australia, with one dissenting judgment, ordered that the judgment of the trial judge be set aside. The principal judgment was

delivered by Toohey J, with whom Brennan, Deane and Gaudron JJ agreed in a separate concurring judgment. It is interesting to note,

however, that those three judges, in their concurring judgment were at pains to state that normal judicial interventions, including

debate and argument and, presumably, the expression of strong though necessarily provisional views on the subject-matter of the

litigation, would not normally be considered to justify a finding of bias. The following helpful observations appear in that judgment:

“It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the

reliability and impartiality of some medical witnesses in his or her court………That does not mean, however, that the judge

is disqualified from hearing the particular action or any other action involving the medical expert as a witness. The

requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one

which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a

judge carries with him or her the knowledge that some medical witnesses………are likely to be less sceptical of a plaintiff’s

claims……… If it were so infringed, the administration of justice in personal injuries cases would be all but impossible………

Nor will that requirement of the reality and the appearance of impartial justice be infringed if a judge with preconceived

views ……disclose the existence of such views in the course of dialogue between Bench and Bar which is so helpful in the

identification of real issues and real problems in a particular case………It seems to us that a trial judge who made

necessary rulings but otherwise sat silent throughout a non-jury trial with the result that his or her views about the

issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions

in his or her judgment would not represent a model to be emulated.”

76. The concurring judgment went on to say that there was “an ill-defined line beyond which the expression by a trial judge of

preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice.”

77. I find myself in full agreement with these views. It is an inherent and invaluable part of the common-law system of justice that

open sometimes even vigorous argument takes place between bar and bench. Judges, on a daily basis, express opinions in the form of

questions, statements or argument in the course of a hearing. The whole purpose of these exchanges is to enable the parties to

address doubts or difficulties raised by the judge. Arguments are tested and contested. This can and frequently does enable counsel

to change the judge’s mind. On other occasions, the weakness of an argument is exposed. If judges did not come to the process with

some clear, even strongly-held, views, based on the experience they bring to the judicial process, they would be of little value as

judges. Parties and their legal advisers assess how a case is going. They discern the approach of the judge. This may lead to a

settlement. I am aware that there exists a different culture in the courts of some European countries. I understand that in some it is

unheard of for the judge to intervene. I can only say that I do not agree. Of course, a judge may so behave that he steps outside his

judicial role. If he does, it will be obvious. In my view, that is what is required, something quite outside the bounds of proper judicial

behaviour to establish objective bias, based on judicial statements.

78. Some cases of irregular or even improper behaviour or remarks by judges in the course of summary trial have been cited. I do not

think these are necessarily very helpful.

79. It seems to me that the most relevant decision of this Court on the issue of pre-judgment bias is that in Dublin Wellwoman

Centre, though it was not, in fact, expressly considered under that heading. There it was held that the learned High Court judge

should have discharged herself from hearing the case. Denham J delivered the unanimous judgment of this Court on the appeal. That

case was concerned a submission made by the judge to government completely outside the judicial process. The plaintiffs, who were

engaged in the provision of non-directive counselling to pregnant women, brought an action seeking a declaration that they were

entitled to make information available regarding the availability of abortion services in other Member States of the European

Community. That contention was contested by the appellants. The disputed issue involved an interpretation of Article 40.3.3 of the

Constitution. The trial judge had written, in her capacity as Chairperson of the Commission on the Status of Women, a letter to the

Taoiseach in which, as summarised by Denham J she had “voiced a view on the constitutional Article in question.” The judgment

stressed the particular importance and relevance of the case and that it involved one of “the most emotive and divisive topics in our

community today.” She held that there was a reasonable apprehension of bias. It is clear that the extra-judicial statement of the

judge could reasonably have been interpreted as an expression of opinion on the precise issue in the case. Clearly, the case was an

exceptional one.

80. The principles to be applied to the determination of this appeal are thus, well established:

(a) Objective bias is established, if a reasonable and fair-minded objective observer, who is not unduly sensitive, but who

is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision-make will not be fair

and impartial;

(b) The apprehensions of the actual affected party are not relevant;

(c) Objective bias may not be inferred from legal or other errors made within the decision-making process; it is necessary

to show the existence of something external to that process;

(d) Objective bias may be established by showing that the decision-maker has made statements which, if applied to the

case at issue, would effectively decide it or which show prejudice, hostility or dislike towards one party or his witnesses.

81. I have given careful consideration to the contention of the Appellants that the Tribunal has so prejudged the issue of credibility

between them, particularly Mr O’Callaghan, and Mr Gilmartin that an independent person in possession of all the facts would have a

reasonable apprehension that the applicants would not have a fair and impartial hearing. The core and substance of the complaint is

that the Tribunal has predetermined that Mr Gilmartin is a credible witness and that, inferentially, Mr O’Callaghan will not be believed.

82. The Tribunal has made no determination in terms on this credibility issue. The Appellants do not point to any statement of the

Tribunal to the effect that they believe Mr Gilmartin. They ask the Court to infer such a determination from the decisions of the

Tribunal not to disclose documents. The Tribunal has repeatedly and consistently stated from its very beginning that it does not make

any findings of fact until all the evidence has been heard. It has constantly repeated this prior to and during the course of these

proceedings. It is, of course, clear on the authorities that this is not a decisive consideration. The Appellants go further. They say

that it is irrelevant. There have undoubtedly been findings of objective bias even in cases, such as Dublin Wellwoman, where the

judge or tribunal has insistently proclaimed his, her or its impartiality. That does not mean, however, that the stated position of the

tribunal is irrelevant. Denham J took careful note of the declared position of the learned High Court judge in that case. If the

hypothetical independent observer is deemed to know all the relevant facts, that must be one of them. The statements of the

Tribunal cannot simply be ignored. They must carry some weight in the balance. That is especially so, where, as here, the Appellants

do not allege that the tribunal has made an explicit determination of the issue in contention and the Tribunal repeatedly asserts that

it has not done so.

83. The Appellants accept that, on the authority of Orange Communications, that they cannot ask the Court to infer bias from a

series or pattern of erroneous decisions. Nonetheless, in their written submissions, already quoted, they criticise the learned trial

judge for his failure to step back and look “at the pattern of behaviour of the Tribunal which…… loomed over the whole horizon…”

Although they relied on the Australian decision in R v Watson, where the judge had expressly ruled in advance that he would not

accept the uncorroborated evidence of either party, they can point to no corresponding statement on the part of the Tribunal.

84. Finally, and most essentially, they ask the Court to infer from a detailed examination of the decisions and related behaviour of the

Tribunal that it has predetermined or prejudged the issue of credibility. If that exercise is different from the one condemned by this

Court in Orange Communications, I have to confess that the distinction is too fine from me. The Appellants not only ask the Court to

look at the pattern of behaviour of the Tribunal, but they have engaged, at the hearing in this Court, in the most minute examination

of individual pieces of evidence. The objective being to establish that the Tribunal has determined the credibility of Mr Gilmartin, they

necessarily engaged in a fine and detailed comparison of individual statements of Mr Gilmartin with earlier statements and sometimes

omissions to make statements.

85. I have remarked, earlier in this judgment, on the problems posed by this exercise. I suggested during the hearing that it involved

the Court in conducting a “mini-tribunal.” For that very reason, I find the exercise fundamentally objectionable. It is the Court that is

invited to engage in pre-judgment. I do not propose to embark on such an exercise. The range of conclusions the Court is being asked

to reach, based on minute analysis of the documents, include the following broad categories: finding that the omission of Mr Gilmartin

to refer to a particular fact on an earlier occasion cast doubt on his credibility; that he had made earlier inconsistent statements,

which equally raised such doubts; that he on earlier occasions made outrageous and unfounded allegations against Mr O’Callaghan and

others and was thus not to be believed. On the converse hypothesis, this Court might examine a piece of evidence and conclude that

it did not appear to raise any such doubts. Should the Court do that? The Appellants throughout their submissions allege, and

implicitly invite the Court to decide, that there were gross or glaring or significant inconsistencies between Mr Gilmartin’s evidence and

his earlier statements. Should the Court run the risk that it would conclude that there was no prior inconsistent statement of Mr

Gilmartin capable of persuading the Court that the Tribunal, in not producing it, was not guilty of bias? Either course would place this

Court in a position of expressing opinions on the very matters which are so hotly in contention before the Tribunal. Any judgment of a

judge of the Court pronouncing on the discrepancies, if any, between the evidence of Mr Gilmartin and earlier statements would be

bound to be used before the Tribunal in an attempt to persuade it either of the credibility of Mr Gilmartin or the reverse. I am fortified

in my preference for this rule of restraint by a reading of the judgments delivered today by Denham J and Hardiman J. Each of those

judgments contains a minute and careful examination of the facts under the several headings of complaint under which Mr Gallagher

invited the Court to examine the decisions of the Tribunal. Denham J and Hardiman J reach opposite conclusions. I agree, however,

with the strictures expressed by Denham J “on the use of fact, to micro-analyse decisions of the Tribunal, as if this were an appeal

process” and that this represents “an inappropriate use of the process of judicial review.”

86. I remain of the view that it is for the Tribunal alone to examine the facts. To quote Geoghegan J in his judgment in O’Callaghan v

Mahon No 1.: “In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal

while the hearings are still running.”

87. A large part of the argument of the Appellants concerned the various rulings of the Tribunal that they would disclose material

inconsistent with the evidence of Mr Gilmartin if the inconsistencies were “gross, or glaring or significant.” It was said that the

Tribunal failed to follow even the standards it had set for itself. There is no reason to repeat that the Tribunal’s earlier decisions were

incorrect in law. It does not now dispute that some of the material it failed to disclose was inconsistent with the evidence even to

the extent suggested by those tests. Unless, however, those rulings were evidence of bias as defined, they are irrelevant to the

present appeal. Geoghegan J, in his judgment in O’Callaghan v Mahon No 1, referred to the policy of confidentiality enunciated by the

Tribunal as the basis of its rulings. He said that it was “perfectly entitled to formulate a policy and indeed the efficient execution of

its work requires that there be such a policy.” He also noted that it “did not claim that it was absolutely hide-bound by its own policy

or by any rules or systems which it may have devised.” By the same process of reasoning, I have arrived at the conclusion that the

rulings of the Tribunal would not persuade our hypothetical independent observer that it had formed, using the language of the High

Court of Australia in R. v Watson, any sort of settled view in favour of the credibility of Mr Gilmartin.

88. I should not omit, finally, to refer to the statement made in the letter from the Tribunal’s solicitor to the Appellants’ solicitors

dated 26th September 2005. This is separate from the complaints regarding inconsistencies between the evidence of Mr Gilmartin and

material not disclosed by the Tribunal. That statement was:

“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.”

89. That statement should never have been made. Does it, however, establish objective bias? In the context in which the Tribunal’s

very lengthy letter of rebuttal was written, I do not think it does. Counsel for the Appellants did not shrink, at the hearing, from

accepting that their own clients’ letter of 13th September contained the most serious possible allegations against the Tribunal. The

letter was not at all written in the careful terms, now adopted by counsel, of the “reasonable apprehension of the appearance of

bias.” It contained a large number of allegations of actual bias: of being prepared to do anything to protect Mr Gilmartin in his

involvement with this inquiry; of setting out to prove fraud against Mr O’Callaghan; that The Appellants were firmly of the view that

this tribunal cannot fairly adjudicate on the allegations of impropriety against them. The Tribunal was therefore responding in detail to

many serious allegations of actual bias. Such allegations, of course, went to the root of the personal honour and integrity of the

Tribunal members as such and as judges.

90. The Tribunal should have had the dignity to refute the allegations in the Appellants’ letter, without personalising the matter.

Nonetheless, I do not believe that a reasonable and fair-minded independent observer in possession of all the facts, particularly of the

Appellants’ letter of 13th September, would have had an apprehension that the Tribunal had predetermined any matter. That

hypothetical observer would have read the entire letter and would have seen how serious the allegations were. He would have

appreciated that they amounted to an assault on the integrity of the Tribunal. He would also have read the entire of the letter in

reply and would have seen, inter alia, the clear restatement of the Tribunal’s policy that “no decision as to the credibility of witnesses

whose evidence was challenged would be made until such time as all their evidence in relation to all matters in respect of which they

were giving evidence was heard.”

91. My conclusions on the issue of bias are as follows: the Appellants cannot, as they accept, establish objective bias based on a

series of adverse decisions of the Tribunal; they do not claim that the Tribunal has made any express advance finding about the

credibility of Mr Gilmartin; not being able to succeed on either of the preceding grounds, the Appellants ask the Court to examine in

detail the decisions of the Tribunal not to release documents; such a procedure cannot succeed for the reasons already given;

furthermore, it would implicate the Court in detailed evaluations of alleged conflicts between the evidence of Mr Gilmartin and earlier

documents; the Court should not, as a matter of principle engage in that exercise, which is quintessentially the function of the

Tribunal; it is the function of the Tribunal, not the Court to assess and pass judgment on the credibility of witnesses.

92. For these reasons, I would also dismiss the appeal insofar as it is based on alleged objective bias. I agree with Denham J that bias

has not been established and I would agree with her also that the appeal should be dismissed. I would affirm the order of the High

Court.