Supreme Court allows appeal quashing Tribunal costs decision based on substantive findings violating constitutional principles.

THE SUPREME COURT

Appeal No. 119/2006

(High Court Record No.2004/4910P)

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

BETWEEN:

JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH MURPHY

STRUCTURAL ENGINEERS LIMITED

Plaintiffs/Appellants

- and -

MR JUSTICE FEARGUS FLOOD (THE FORMER SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS

AND PAYMENTS), HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD

KEYS (THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), IRELAND AND THE

ATTORNEY GENERAL

Defendants/Respondents

JUDGMENT of Mr. Justice Fennelly delivered the 21st day of April 2010.

Introduction

1. Anyone living in Ireland over the past twenty years, when Tribunals have loomed so large in the life of a nation, cannot

be unaware of the cost of tribunals. The Oireachtás establishes a Tribunal of Inquiry to investigate “a definite matter of

urgent public importance.” (Section 1(1) of the Tribunals of Inquiry Act, 1921). It is natural to assume that the cost of

inquiring for public purposes should be borne by the public, the State. Thus, the taxpayer would bear the principal burden.

2. But, investigation of matters of public interest inevitably impacts on individuals. The current edition of Wade and

Forsyth on Administrative Law (10th Ed. Oxford 2009) contains the following statement:

“The inquiry is inquisitorial in character, and often takes place in a blaze of publicity. Very damaging allegations

may be made against persons who may have little opportunity of defending themselves and against whom no legal

charge is preferred.”

The authors omitted a further statement which had appeared in the 9th Edition which the appellants cite in their written

submissions:

“…an inquisitorial public inquiry is not always easily controllable, and its evils would be grave if its use were not

infrequent.”

But individuals have to pay for their generally involuntary involvement. This appeal is concerned with the claim of two

individuals and a company, whose affairs have been scrutinised by a Tribunal, to recover their costs.

3. Hamilton C.J. in his judgment in Haughey v Moriarty [1999] 3 I.R. 1, at page 57, acknowledged the severity of the

encroachment by tribunals on individual rights:

“There is no doubt but that the terms of reference of the Tribunal of Inquiry and the exceptional inquisitorial

powers conferred upon such tribunals under the Act of 1921, as amended, necessarily expose the plaintiffs and

other citizens to the risk of having aspects of their private life uncovered which would otherwise remain private,

and to the risk of having baseless allegations made against them. This may cause distress and injury to their

reputations.”

Nonetheless, these undoubted private rights and interests must yield to the public interest. As the Chief Justice explained

at page 59:

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

urgent public importance be inquired into, particularly when such inquiries are necessary to preserve the purity

and integrity of our public life without which a successful democracy is impossible.”

4. In his High Court judgment in the same case, Geoghegan J made a number of observations about the costs borne by

individuals, to which I will refer later. He stated, in particular, at page 14, that any monetary loss incurred in meeting the

requirements of the Tribunal was “simply an unfortunate consequence of the legitimate right to such hold an inquiry.”

5. Thus, an individual may become entangled innocently or otherwise, but involuntarily, in the workings of a Tribunal. He

may have to pay dearly to protect his good name. Where, after all this, his name is tarnished by the Tribunal’s findings,

must he pay all or part of his costs or even of the costs of the Tribunal? Society pays to uncover the truth; anybody who

is asked must help the Tribunal; if a finding is adverse to the individual who should pay?

The problem

6. The present appeal demands clear answers to these questions. The appellants were centrally involved in an important

part of the Tribunal’s inquiries into corruption in the planning process. They spent many months of their time and a great

deal of money participating in its work. Ultimately, where there were conflicts of evidence, they were not believed. The

Tribunal found them guilty of making corrupt payments. It also found that, by the mere fact of giving the evidence that

was disbelieved, they were guilty of hindering and obstructing the work of the tribunal.

7. The questions which arise, on the appellants’ arguments, are whether the Tribunal, when making the principal,

substantive findings in its reports to the Oireachtás:

• had power to make findings of hindering and obstructing;

• was entitled to conclude that the fact of giving evidence which is not believed amounts, in itself, to “hindering

and obstructing” the work of the Tribunal;

• was bound to give prior notice to the appellants that it was considering making a finding of hindering and

obstructing.

8. A number of separate questions arise in relation to the Tribunal’s refusal to award any costs to the appellants. One of

the principal issues is whether the Tribunal was entitled to found its decision to refuse an order for costs on its

substantive findings of corruption; another is whether the Tribunal made valid findings of obstruction and hindering.

9. The first to fourth named respondents (in effect the Tribunal) raise preliminary objections on the grounds of delay,

which must be considered in detail.

10. These are the principal points to be considered. There is also a challenge to the constitutionality of some of the

legislation providing for costs orders. Well-established principles require the Court address that issue only if it is

unavoidable.

Relevant statutory provisions

11. In order to consider these points it is necessary to explain the context in which they arise. Two statutory provisions

arise for particular consideration.

12. The first is section 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act 1979, which provides:-

“If a person…

(c) wilfully gives evidence to a Tribunal which is material to the inquiry to which the tribunal relates and which he

knows to be false or does not believe to be true, or

(d) by act or omission obstructs or hinders the Tribunal in the performance of its functions…….

the person shall be guilty of an offence.”

13. One of the appellants’ complaints is that the Tribunal’s findings of obstruction and hindering of its work amount to a

decision that they committed a criminal offence.

14. The power to award costs was conferred by section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act

1979. In its original version, that provision read:

“Where a tribunal, or, if the tribunal consists of more than one member, the chairman of the tribunal, is of opinion

that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons

rendering it equitable to do so, the tribunal or the chairman, as the case may be, may by order direct that the

whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing

Master of the High Court, shall be paid to the person by any other person named in the order.”

15. Following amendment by section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997 section 6(1) now

reads:

“Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of the

opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the

resolution passed by each House of the Oireachtás relating to the establishment of the tribunal or failing to

cooperate with or provide assistance to, or knowingly giving false or misleading information to, the tribunal), there

are sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may,

either under the tribunal’s or the chairperson’s own motion, as the case may be, or on application by any person

appearing before the tribunal, order that the whole or part of the costs

(a) of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of

the High Court, shall be paid to the person by any other person named in the Order;

(b) incurred by the tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any

other person named in the order.”

16. The underlined words, which were added in 1997, provided the principal focus of debate on the appeal.

17. In addition, it may be noted that the Terms of Reference of the Tribunal recorded the desire of the Houses of the

Oireachtás that:

“All costs incurred by reason of the failure of individuals to cooperate fully and expeditiously with the Inquiry

should, so far as is consistent with the interests of justice, the borne by those individuals.”

The Tribunal and its reports

18. The first named appellant, Mr Joseph Murphy junior is engaged in the business of property development. At all material

times, he was the chairman of the third-named appellant. The second named appellant was, at the material times,

managing director of the third named appellant, and a contracting company in the Murphy group.

19. The Planning Tribunal was established by order of the Minister for the Environment and Local Government dated 4

November 1997, pursuant to resolutions of both Houses of the Oireachtás passed respectively on 7th and 8th October

1997 to inquire into specified matters of urgent public importance set out in its Terms of Reference. The specified matters

all related, so far as the appellants are concerned, one way or the other, to allegations made by Mr James Gogarty, who

has since died.

20. The Terms of Reference were amended on 15th July 1998 so as to oblige the Tribunal to "inquire urgently into and

report ……………” on whether any corrupt payments were made to Mr Ray Burke connected with any public office or

position held by him. Mr Burke had held, inter alia, several ministerial posts in the government. According to the Tribunal,

this amendment had the effect of requiring it to investigate the entire public life of Mr Burke from 1967 to 1997.

21. The appellants participated in approximately 163 days of public hearings at the Tribunal between 12th January 1999

and 14th July 2000. They provided extensive discovery and made statements to the Tribunal.

22. In its Second Interim Report, the Tribunal reported, inter alia, on the payment of money to Mr Burke at a meeting

attended by Mr James Gogarty in the period immediately prior to 15th June 1989.

23. The Third Interim Report dealt with two separate sums of money alleged by Mr James Gogarty to have been paid by

way of corrupt payment to Mr George Redmond, who had for many years held the position of Assistant City and County

Manager of Dublin.

24. The Tribunal made findings in the two reports to the effect that the appellants had made corrupt payments,

respectively, to Mr Burke (the Second Interim Report) and to Mr George Redmond (the Third Interim Report). It has to be

emphasised that the appellants have never, and do not in these proceedings, mount any challenge to the validity or

correctness of these substantive findings. The following discussion of those findings may, nonetheless, cast light on the

justification for the contemporaneous findings, in each report, that the appellants, or some of them, had hindered and

obstructed the work of the Tribunal.

Second Interim Report

25. The second interim report dealt with three distinct "modules." The appellants and this appeal are concerned only with

what it called the “Gogarty Module.” The Tribunal identified the core allegation as one made by Mr James Gogarty to the

effect that he had witnessed the handing over of two envelopes, said to contain IR£40,000 each, to Mr Burke at a

meeting which took place at Mr Burke’s home at Swords on or in the days immediately before 15th June 1989. The

payments were claimed to have been made corruptly in order to secure the support of Mr Burke in achieving rezoning and

planning changes with regard to certain lands owned by the Murphy companies.

26. The same report contains findings relating to "Co-operation with the Tribunal," which are closely linked, on the one

hand, to the substantive findings and, on the other hand, to the ruling regarding costs. For that reason, it is necessary to

give a brief account of the nature of the substantive findings.

27. A central, perhaps even the decisive, controversy surrounded the question of who had attended the meeting at Mr

Burke's house when the alleged corrupt payment was made. Mr Gogarty insisted that Mr Joseph Murphy junior was one of

those present. Mr Burke and Mr Michael Bailey, who were admittedly present, equally strongly maintained that he was not,

as did Mr Murphy himself. In short, of the three people admittedly present at the meeting, only Mr Gogarty claimed that

Mr Joseph Murphy, junior was there.

28. The Tribunal heard evidence from a number of witnesses and devoted a major part of its report to examining and

resolving a large body of evidence related to this dispute. Mr Murphy was normally based in and lived and worked

principally in London. The extent and number of his visits to Ireland in June 1989 were examined in minute detail. The

Tribunal concluded that Mr Murphy “could have” attended meetings in Dublin, even when he was shown to have been in

London at some time on the same day. Its findings in respect of three disputed meetings over this period were as follows.

29. In relation to the first alleged meeting:

“However, it is clear that notwithstanding the alibi evidence offered in relation to Mr Murphy Junior’s meeting with

friends in Waterford, a meeting could have taken place with Mr Bailey on either 31st May or 1st June, and still have

allowed Mr Murphy Junior to attend his meeting in Waterford later on 1st June.”

30. In relation to the second alleged meeting:

“The Tribunal is satisfied that Mr Murphy Junior could have attended a meeting in Dublin on 8th June 1989

notwithstanding the evidence that he received telephone calls in London, both that morning and that night. A

meeting could have taken place at JMSE’s premises on the afternoon of 8th June provided Mr Murphy Junior had

flown from London to Dublin and returned on the same day.”

31. In respect of the crucial third meeting in Mr Burke’s house the Tribunal’s finding is in the following terms:

“The Tribunal is not convinced by the alibi evidence offered to the Tribunal that Mr Murphy Junior could not have

attended a meeting in Dublin in the week commencing 12th June 1989 and recognises that for such a meeting to

have taken place on 12th June it would involve a rejection of the alibi evidence offered as to Mr Murphy Junior’s

movements that day by Mr Greene. The Tribunal believes that it is possible that Mr Murphy Junior could have

attended an afternoon meeting at the JMSE premises in Dublin on 8th June but still have attended his workplace in

London earlier that day. If Mr Murphy Junior returned to Ireland on either 13th or 14th to attend a meeting it

would involve the rejection of the evidence of Mr Mycroft, a JMSE engineer, in so far as he believed that Mr

Murphy Junior was working all day in London on each of those dates.”

32. In its final resolution of the dispute the Tribunal, rather than explicitly preferring the evidence of Mr Gogarty to that of

Mr Murphy, expressed itself in the negative as follows:

“ in weighing the evidence of the alibi witnesses in the totality of the evidence surrounding the making of the

payment to Mr Burke, the Tribunal , concludes that the alibi evidence does not prove that Mr Joseph Murphy Jnr.

could not have attended at least three meetings in Dublin between 31st May and 15th June 1989.”

33. The Tribunal, in its Third Interim Report, found that Mr Joseph Murphy junior had made two separate corrupt payments

to Mr George Redmond. The first payment, in a sum found to be not less than IR£12,246 was for devising a strategy

resulting in the service charges and levies payable respect of certain lands of the Murphy group being fixed at a

beneficially low level. The second was in a sum £15,000 found to have been paid by Mr Joseph Murphy junior to Mr

Redmond at a meeting at Clontarf Castle Hotel attended by Mr Gogarty, Mr Michael Bailey, Mr Frank Reynolds and Mr

Joseph Murphy junior. With the exception of Mr Gogarty himself, all those persons denied that any such meeting had

taken place at all. The evidence, which the Tribunal accepted, with regard to the second payment was that Mr Joseph

Murphy junior informed Mr Gogarty sometime after the payment had been made that he had "sorted out" Mr George

Redmond with regard to the loans in question. Mr Joseph Murphy junior denied that he had made such a statement or

made such a payment. He was supported in the latter respect by the evidence of Mr Redmond.

34. It will become clear at a later point that these conclusions of the Tribunal on the substantive issue had a decisive

bearing on its findings in the chapter on cooperation with the Tribunal.

Co-operation with the Tribunal; hindering and obstruction

35. The Tribunal included a separate chapter in its Second Interim Report under the title: "Co-operation with the

Tribunal.” It referred to the general obligation of all parties to provide truthful information, adding that failure to do so had

the “capacity to hinder and obstruct the Tribunal….” It proceeded as follows:

“Any person, duly summoned to do so, who gives evidence to the Tribunal which is material to its enquiry, which

that person wilfully [sic] knows to be false or does not believe to be true or who by act or omission obstructs or

hinders a Tribunal in the performance of its functions, commits a criminal offence.”

36. The foregoing paragraph, apart from the misplacing of the word, “wilfully,” follows the wording of section 3(2) of the

Tribunals of Inquiry (Evidence)(Amendment) Act 1979, quoted above.

37. The Tribunal further remarked that the failure of a witness to give a truthful account "can amount to a failure to

cooperate with the Tribunal.”

38. The Tribunal then proceeded, in Chapter 17, in the case of some 20 witnesses, to make a finding as to whether the

specified witness had either “obstructed or hindered” or "failed to co-operate” with the Tribunal. It made the following

finding regarding Mr Joseph Murphy Jnr.:

“The Tribunal is satisfied that Mr Joseph Murphy Jnr. obstructed and hindered the Tribunal by:

a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at the

home of Mr Burke in June 1989 at which he handed to Mr Burke a sum of not less than £30,000,

b) Failing to give a truthful account of his dealings with Mr Michael Bailey with regard to the

participation proposal, in which it was envisaged that Mr. Michael Bailey would receive 50% of the

value of the Murphy’s’ North Dublin lands in return for procuring planning permission and building bye

law approval in respect thereof.

c) Giving a false account of the involvement of Mr. James Gogarty in the sale of the Murphy lands and

the role played by him in connection with the payment of JMSE monies to Mr. Burke.

d) Giving a false account of his dealings with Mr. Michael Bailey subsequent to the publication of the

Sunday Business Post articles.

e) Falsely constructing an alibi which was untrue.”

39. In the case of Mr Frank Reynolds, it found:

“The Tribunal is satisfied that Mr Frank Reynolds obstructed and hindered the Tribunal by:

a) Failing to give a truthful account of his involvement in the assembly of funds which were paid to Mr

Burke by JMSE.

b) Falsely ascribing to Mr Gogarty a role in the payment of monies to Mr Burke which he knew to be

untrue.

c) Failing to give a truthful account of his dealings with Mr Michael Bailey

d) Failing to give a truthful account of the steps taken by him subsequent to the publication of the

Gogarty allegations in the Sunday Business Post editions of 30th March and 6th April 1996.

e) Colluding with Mr Joseph Murphy Snr. and Mr Joseph Murphy Jnr. to present a false account to the

Tribunal of the role played by Mr James Gogarty in the payment of JMSE monies to Mr Ray Burke.”

40. Chapter 8 of the Third Interim Report was also headed “Co-operation with the Tribunal.” It contained very similar

findings of obstruction and hindering against Mr Joseph Murphy junior and Mr Frank Reynolds, in each case, based on the

substantive findings which the Tribunal had made preferring the evidence of Mr Gogarty to that of the two appellants.

41. Neither report made any findings of failure to co-operate with the Tribunal in any respect other than the giving of

false evidence. For example, none of the appellants were found to have failed to co-operate with the Tribunal during its

preliminary investigative stages by failure to make proper discovery, to provide documents or to attend hearings. In fact,

it will later be seen that the Chairman accepted that there had been co-operation specifically in respect of the discovery

of documents over a long period of time.

42. The appellants have complained, without being contradicted, that the Tribunal never at any time gave notice to any

of them that it was considering making findings that they had hindered or obstructed the work of the Tribunal.

Procedure for dealing with the costs

43. By a letter dated 16th April 2003, the then Sole Member of the Tribunal gave notice to the appellants of his intention

to hold a public sitting on 6th May 2003:

“on the principles which should be applied by him in exercising his discretion under this section in relation to the

costs claimed by persons who fall within the category of persons against whom findings of corruption were made

or who have been found to have obstructed or hindered the Tribunal or to have failed to cooperate with or to

provide assistance to the Tribunal as requested.”

44. The procedure was to involve a decision, in the first instance, on the principles, which the Tribunal would apply.

Thereafter, the Tribunal would hear applications for costs "from individuals who fall within the aforementioned category

who are seeking an order for their own costs to be paid by the State.”

45. Only the Second Interim Report had then been published. The hearing was to relate, therefore, only to individuals who

might wish to recover costs, which they had themselves incurred. No question has yet arisen about recovery of costs

incurred by the Tribunal itself or others against the appellants. The hearing was to relate only to persons who had been

found by the Tribunal:

• to have been guilty of corruption, or

• to have obstructed or hindered the Tribunal, or

• to have faded to cooperate with or to provide assistance to the Tribunal.

46. The hearing proposed for 6th May did not take place. Mr Justice Flood, who had up to that time served as Sole

Member, retired on 27th June 2003. The Tribunal was reconstituted and the two relevant costs hearings took place before

His Honour Judge Mahon, as Chairman.

47. By letter dated 14th May 2004, the Tribunal, as newly constituted, gave notice that it was the intention of the

Chairman to hear submissions regarding costs on the 14th and 15th of June 2004. The hearing would now relate to

conduct which was reported on in both the Second and Third Interim Reports. The letter mentioned findings of corruption

and of failure to cooperate, but did not make reference to obstruction or hindering. In the meantime, on 21st April 2004

the appellants had commenced the present proceedings. Their Plenary Summons disputed the power of the Tribunal to

make findings of obstruction or hindering.

48. The chairman heard oral submissions on the 14th and 15th of June 2004. He was empowered by section 2 of the

Tribunals of Inquiry (Evidence) Act, 2004 to determine issues of costs arising from the reports of Mr Justice Flood. Nothing

turns on that power. The appellants made extensive submissions in support of their applications for costs pursuant to

section 6(1).

49. On 30th June 2004 the Chairman of the Tribunal made a ruling on the principles he would apply to applications for

payment of their costs by persons in respect of whom findings of corruption had been made. He noted that the Second

and Third Interim Reports "included findings of corruption and/or findings of non-co-operation with the Tribunal on the

part of certain named parties.”

50. He concluded inter alia that the Tribunal was required to have regard to the findings of the Tribunal when exercising

its discretion on costs. He based this on the provisions of section 6(1) of the Tribunals of Inquiry (Evidence) Act, 1979,

as amended in 1997. He ruled:

“ I am firmly of the view that the word "findings" in the context of the present inquiry means the findings of

corruption, and that I am entitled to have consideration [sic] to such findings when exercising my discretion as to

whether or not to award costs to any party to whom representation was granted. In so holding I wish to

emphasise that a finding of corruption does not of itself mean that I must, in the exercise of my discretion, refuse

the costs of a person who has been found to have been corrupt. It is a factor to which I am entitled to have

regard in determining, whether in all the circumstances, it is equitable to make an award of costs, whether in

whole or in part.”

51. The chairman mentioned four matters which he said he was required, in accordance with the section, to have regard

and listed a large number of other matters including "non-co-operation or failure to assist." At no point, however did he

make any reference to the findings that the appellants had hindered and obstructed the Tribunal.

52. The Chairman of the Tribunal made his final substantive ruling on the applications for costs of the appellants on 9th

November 2004. While no estimate of the amount of costs had been submitted, he thought they would undoubtedly be

"very substantial".

53. "On the issue of cooperation with the Tribunal,” he noted and summarised the findings of obstructing and hindering.

He also noted that the two personal appellants had been found "to have knowingly engaged in or assisted corruption.” He

remarked that it was "not unreasonable…... to emphasise the substantial compliance with the Tribunal discovery

requirements… over a prolonged period of time.” He described the issue which he had to consider as being whether “the

incidences of co-operation on the Applicants’ part were such as would enable me to, for good reason, exclude or

separate them from the very serious adverse findings relating to co-operation that were found by the Tribunal in both

the Second and Third Interim Reports.” Cooperation by a person could not be viewed as positive "if the overall thrust of

his involvement with the Tribunal was to have been knowingly untruthful, destructive and misleading."

54. The ultimate decision requires to be quoted in full:

“Taken as a whole, the adverse findings of obstructing and hindering the Tribunal made against the Applicants was

so serious, so extensive and so far reaching, as to clearly lead any reasonable person considering them to the

conclusion that the individuals concerned, …………were intent from the outset in ensuring that the Tribunal would

not find the truth.

To put it more simply, the conduct of the Applicants in their dealings with the Tribunal was unlawful and

disreputable, and amounts to a fundamental disregard for the very purpose of the Tribunal, and their legal duty to

cooperate with it.

In spite of the serious findings of corruption on the part of some of the Applicants, I would have considered

awarding them a portion of their costs had they chosen to fully and honestly cooperate with the Tribunal. I am

firmly of the few that there should be a strong incentive for a party who fully cooperates with the Tribunal by

giving a truthful account of their knowledge of the events under enquiry can reasonably expect to recover at least

a significant portion of his or her costs notwithstanding adverse findings on substantive issues such as corruption.

In all the circumstances therefore, I do not believe it would be appropriate to award any costs to the Applicants

and I therefore refuse the application.”

55. The tribunal acknowledged that the appellant's legal representatives had participated fully in public hearings of the

tribunal, as well as the extensive discovery that had been made by the appellants over a prolonged period of time. The

reasons for the decision to refuse to award any costs to the appellants were: a) the adverse findings of hindering and

obstruction; b) the substantive findings of corruption. The Chairman did not suggest that there were any other grounds

upon which his decision could have been based.

The proceedings

56. There have been two interim reports from the Tribunal, two decisions relating to the appellants’ applications for costs

and two sets of legal proceedings. I will provide below a brief chronology to make it easier to understand the objections

on grounds of delay raised by the respondents. First, I will endeavour to give an account of the legal proceedings.

57. It is right to note it at the outset that the appellants issued no proceedings within the judicial-review time limits

seeking to challenge the Second Interim Report. This is a principal plank of the delay objection.

58. In their Plenary Summons of 20th April 2004 the appellants disputed the findings made by the Tribunal in both the

Second and Third Interim Reports on the subject of obstruction and hindering, raising a number of legal grounds, to which

it will be necessary to return. They also sought a declaration that section 6 (1) of the Act of 1979, as amended, is invalid

having regard to the provisions of the Constitution.

59. The proceedings, therefore, were issued barely within three months after the publication of the Third Interim Report,

but some 19 months later than the publication of the Second Interim Report. On the other hand, both the Plenary

Summons and the Statement of Claim, delivered on 4th May 2004, pre-dated any of the decisions on costs made by the

Chairman of the Tribunal and even the letter of the Chairman dated 14th May 2004. In their original form, these

proceedings sought declarations that the findings of obstruction and hindering made in the two reports had been made

ultra vires that they were null and void and that they could not be taken into account for the purposes of decisions as to

costs.

60. I turn now to the judicial review proceedings. Although they did not take the normal course and have, in effect, been

absorbed into the plenary proceedings, they are highly material on the delay issue.

61. The appellants formulated a statement required to grant an application for judicial review dated 2nd February 2005.

Mr Joseph Murphy junior swore a grounding affidavit on 27th January 2005. On 23rd February 2005, the appellants,

without apparently applying ex parte for leave, issued a Notice of Motion returnable for 7th March 2005. The Appellants

sought, in those proceedings, firstly, various declarations as to the constitutionality of the legislation, principally section

6(1) of the Act of 1979, but secondly, an order of certiorari of the decision of the Tribunal of 9th November 2004,

refusing them their costs.

62. The application for leave came before Kelly J by way of Notice of Motion in the High Court. He made an order:

1. That there be no order on the Judicial Review application and that there be liberty to apply

2. That the costs of the application be costs in the cause of the plenary proceedings

3. that the parties do amend their pleadings in the plenary proceedings

4. providing for the notice of trial and the listing of the action.

63. The effect of this order appears to have been to merge the application for judicial review into the plenary

proceedings.

64. The appellants duly amended the Statement of Claim on 6th April 2005. The pleadings, as so amended, contested the

validity of the findings of obstruction and hindering in the two interim reports, the ruling of 30th June 2004 regarding the

principles governing an award of costs and the decision refusing costs made on 9 November 2004.

High Court judgment

65. Following a hearing lasting six days, Smyth J delivered judgement on 14 February 2006.

66. The respondents had advanced two preliminary objections. The first was that it was an abuse of process on the part

of the appellants to challenge the findings of the Tribunal by way of plenary proceedings. They should have proceeded by

way of judicial review. Smyth J rejected this objection: there was no single exclusive procedure; the English decision in

O'Reilly v Mackman [1983] A.C. 237 had not been followed in this jurisdiction. There is no appeal on this point, though it

reappears in the written submissions of the respondents.

67. On the other hand, the learned judge considered that there had been delay. The considerations as to time, applicable

in the case of judicial review, should be applied so as not to enable a plaintiff to circumvent the provisions of Order 84 of

the Rules of the Superior Courts. (see O’Donnell v Dun Laoghaire Corporation. [1991] I.L.R.M. 301).

68. The learned judge held the proceedings to be out of time insofar as they involved a challenge to the Second Interim

Report, but not in respect of the Third. The reports were distinct and separate. He did not think that it was reasonable

for the appellants to await the outcome of the Third Report before challenging the Second. He also held that the

appellants were within time to challenge the decision on costs of 9th November 2004.

69. He rejected the appellants’ attack on the findings of obstruction and hindering: the Tribunal was entitled to make a

finding of obstruction and hindering at one and the same time as its primary findings; the distinction between failure to

cooperate, on the one hand, and obstruction and hindering was a question of degree; the Tribunal was under no

obligation to give notice of the possibility of a finding of hindering and obstructing. He thought that “findings of hindering

and obstructing may fairly be regarded as incidental and consequential upon those things which the Oireachtás

authorised.”

70. He also held that the Tribunal was entitled to base its decision on costs on the substantive findings of corruption.

Referring to the dictum of McCarthy J in Goodman v Hamilton [1992] 2 I.R. 542 at page 605, he expressed the view that

“the amendment [to section 6(1)] effected by the Act Of 1997 was directed towards the difficulties imposed by perhaps

a perceived narrow interpretation of the act of 1979 in the Goodman decision.”

The appeal

71. It was agreed between counsel at the hearing that the Court had the following issues to decide on this appeal:

1. Was the Tribunal entitled to take into account its substantive findings of corruption when exercising its

jurisdiction in respect of costs?

2. Was the Tribunal entitled to make findings of obstruction and hindrance either:

a. As a matter of vires;

b. In the manner in which it did?

3. To what extent are the appellants precluded from advancing issues by reason of delay?

4. Was the learned High Court Judge correct to preclude an argument on the constitutionality of section 6 of the

1979 Act as amended by reference to the rule in Todd v Murphy?

72. The appellants have made no attempt to challenge the substantive findings of corruption made against them in the

Second and Third Interim Reports. For the purposes of this appeal, those findings must be taken as they stand. The

fundamental objective of the litigation is to set aside the decision of the Chairman of the Tribunal refusing to award them

any of the costs incurred by them in participating at the Tribunal. The appellants advance two legal bases: firstly, that

the substantive findings of corruption should not be taken into account; secondly, that the Tribunal, for a number of

reasons, should not have taken account of the findings of obstruction and hindering.

73. It appears to me that, if either of those grounds is made out, the decision of 9th November 2004 cannot stand. First,

however, it is necessary to consider the objection based on delay.

Delay

74. The following chronology will help an understanding of the relevant time periods:

26th September 2002 Second Interim Report Published

21st January 2004 Third Interim Report published.

20th April 2004 Plenary Summons issued

30th June 2004 Judge Mahon rules on costs principles

28th July 2004 Amended statement of claim

9th November 2004 Judge Mahon final ruling on costs

2nd February 2005 Judicial review commenced

75. The appellants wish to challenge:

• Second Interim Report

• Third Interim Report

• Costs rulings (9th November 2004)

76. The learned trial judge held that the appellants were in time in respect of their challenge to the Third Interim Report

and the costs ruling of 9th November 2004. However, the respondents continue to rely on delay with regard to the

challenge to the Third Interim Report by the plenary summons issued on 20 April 2004. Firstly, they continue to maintain

that the proceedings should have been brought by way of judicial review. Secondly, they were issued a matter of a day

to within the three-month period: thus, they were not issued promptly.

77. I do not think that either of these arguments is viable. The learned trial judge was clearly correct. Unlike the cases of

planning and immigration decisions, there is no statutory provision making judicial review the exclusive means of

challenging Tribunal decisions of the sort at issue here. The decision in O'Reilly v Mackman has never been applied in Irish

law. This is not to say that the judicial review time limit can be circumvented by resort to plenary action. O’Donnell v Dun

Laoghaire Corporation represents long-established authority to that effect. Nor do I accept that the appellants claim can

be defeated on the ground that they did not move "promptly". In the absence of some special feature, such as prejudice

to a third party, the normal rule should be that judicial-review proceedings commenced within the period allowed by O.84,

r, 21 (1) of the Rules of the Superior Courts are in time. As I stated in my judgement in O'Brien v Moriarty [2006] 2 I.R.

221 at page 237, “matters have not reached the stage where an application made within time can be defeated in the

absence of some special factor.” Moreover, if the appellants had moved by way of judicial review to quash the Third

Interim Report, the appropriate relief would have been certiorari, for which the specified time is six not three months.

78. It follows that the appellants were within time to challenge the Third Interim Report.

79. Equally, and for similar reasons, there is no doubt that the challenge to the costs decision of the Tribunal of 9th

November 2004 was commenced within time. The appellants sought leave to apply for judicial review by way of certiorari.

The order of Kelly J preserved the rights of all parties. The effect of this order was to consolidate the application for

judicial review of the decision of 9th November 2004 with the already existing plenary proceedings.

80. There remains, therefore, the question of whether the appellants should be permitted, by means of the plenary

proceedings commenced on the 20th of April 2004, to attack the second Interim report. They were clearly out of time to

do so. The appellants must convince the court that there is “good reason” to extend the time. The learned trial judge

was not convinced by the reasons proffered by the appellants.

81. Firstly, I should address the issue of prejudice raised in submissions by both sides. The respondents legitimately

criticise the appellants’ reliance on absence of prejudice to the opposing party. I agree that the absence of prejudice to

the opposing party can never, on its own, justify an extension of time. In my judgment in Dekra Eireann Teoranta –v-

Minister for the Environment and Local Government [2003] 2 I.R. 270 at page 304, I said that an applicant “cannot

without more … invoke the absence of any prejudice to the opposing party as the sole basis for the suggested good

reason”. The respondents are entitled to rely on any prejudice which they would suffer as a result of an extension of

time. They rely on two points. Firstly, they say that, if the appellants had made their challenge to the Second Interim

Report in time, the Tribunal would have been obliged to alter “some of its procedures which led to the Third Report.” But

that Report was already in existence in September 2002. The respondents are scarcely suggesting that it would have

been altered before publication. This suggestion is, at best, speculative. In substance, what it suggests is impossible. The

procedures had already been followed. No suggestion is made as to how they could have been remedied. The second

heading of alleged prejudice is also unmeritorious. It is that “amending legislation was introduced on the 5th May 2004

which may have been in a different form or to a different effect had there been a Court decision on the Appellants’

complaints (and particularly if the Appellants’ complaints had been upheld).” Speculative is a mild word to apply to this

submission. Assuming that the word “may” ought to read” might,” it seems to imply that the Tribunal was potentially in a

position to influence the legislature so as to cure retrospectively a defect in its own procedures. In my view, this Court

could not give countenance to such a proposition.

82. I have come to the conclusion that there is good and sufficient reason to extend time in the present case.

83. There is an unusual combination of circumstances linking the two reports with the decision on costs. In particular,

there is a very close link between the two interim reports both inter se and when viewed in combination with the decision

on costs. Each of the reports finds one or more of the appellants to have been guilty of obstructing and hindering the

work of the Tribunal.

84. The validity of these findings is contested on legal grounds, which are essentially identical. In summary, they are that

they involved findings of the commission of a criminal offence, that they were made without any notice and that the

grounds for the findings were identical with those of the substantive findings. The two reports were prepared by the

Tribunal at the same time. Publication of the Third Interim Report was postponed for a reason unconnected with the

appellants. It would be wrong, unjust and anomalous if the Court were to be permitted to reach a conclusion that the

findings in the Third Interim Report were invalid but allow the Second to stand. That would create an undesirable legal

anomaly. The findings of one report would have been declared invalid by the court. Similar findings in the other report

would be objectively invalid for the same reason, but without any judicial ruling.

85. An even more difficult problem arises when one considers the links between the reports and the rulings on costs. As

and from 14th May 2004, the Tribunal treated the recovery of costs in relation to the two reports as a single issue. There

was one hearing in June 2004 and one decision on costs including the hearings on 30th June 2004 and on 9th November.

The final ruling of 9th November 2004 took into consideration “the adverse findings of obstructing and hindering,” taking

them “as a whole.” It would be impossible to segregate the findings of obstruction and hindering made in the two reports,

since the Tribunal itself treated them as one whole. Thus, if the appellants were to succeed in their challenge to the

findings of the Third Report, but could not attack the Second, the decision of the Chairman would be based in part on

findings declared to be invalid and in part on identical rulings, upon which the court could not rule.

86. This is a unique set of circumstances. Even assuming the appellants to have been at fault in failing to challenge the

Second Interim Report in time, their clear right to challenge the Third Report and the costs ruling virtually compels the

Court to extend the time and I would do so.

87. It is then necessary to consider, in an appropriate sequence, the agreed issues, as set out above. It will not be

necessary to address the question of constitutionality of the legislation if the appellants succeed on either of the first

two issues. I propose to consider Issue number 2 in the first instance.

Hindering and obstruction

88. The agreed issue is:

Was the Tribunal entitled to make findings of obstruction and hindrance either:

a. As a matter of vires;

b. In the manner in which it did?

89. The appellants contest the findings of obstruction and hindering on a number of grounds, which I identify as follows:

• The Tribunal formulated the findings as findings that the appellants had committed criminal offences;

• The Tribunal gave no advance warning that, at the same time as its substantive findings of corruption, it was

considering making findings of obstruction and hindering against the appellants;

• The findings were indistinguishable from and seemed to flow automatically, with no independent consideration,

from the substantive findings of corruption:

90. These arguments are very closely related and cannot be considered in isolation from each other. Ultimately, their

importance for these proceedings is that they played a crucial part in the decision of 9th November 2004, whereby the

Tribunal declined to order that any of the appellants recover any of their costs.

91. Since what is at stake is the appellants’ right to have their costs applications considered, it seems best to commence

by recalling the provisions of section 6(1) of the Act of 1979 as amended.

92. I am not at this point considering the Tribunal’s reliance on substantive findings. The relevant words, as interpolated

in parentheses by the Act of 1997, are: “the terms of the Resolution passed by each House of the Oireachtás relating to

the establishment of the Tribunal or failing to cooperate with or provide assistance to, or knowingly giving false or

misleading information to, the Tribunal.”

93. Section 6(1), even after amendment, contains no reference to obstruction or hindering. Thus, the Tribunal had no

power to investigate allegations of obstruction and hindering as a separate matter. The learned trial judge considered the

distinction between obstruction and hindering and failure to co-operate to be a mere matter of degree. Normally, I would

agree with him. It would depend on the words used. In this case, it is clear that the Tribunal, in Chapter 17 of its Second

Interim Report, advisedly chose to use the precise wording of 3(2) of the Tribunals of Inquiry (Evidence)(Amendment)

Act, which makes it a criminal offence where a person “by act or omission obstructs or hinders the Tribunal in the

performance of its functions………” The Tribunal expressly stated that such a person "commits a criminal offence.”

Furthermore, it drew a distinction throughout Chapter 17 of the Second Interim Report and Chapter 8 of the Third Interim

Report between obstruction and hindering and failure to co-operate.

94. It is, of course, perfectly clear that the Houses of the Oireachtás may pass a resolution asking a tribunal of inquiry to

investigate and report on whether criminal offences have been committed. Finlay C.J. in his judgment in Goodman v

Hamilton held that:

“… an inquiry…… into the question as to whether criminal acts have been committed, even to the extent of

inquiring whether criminal acts have been committed by a named person or persons, and the reporting of the

truth or falsity of such an allegation to the Legislature by the sole member of the Tribunal cannot under any

circumstances be construed or deemed as a trial on a criminal charge or an offence within the meaning to be

attached to those phrases in Article 38 of the Constitution."

95. This case is, however, different. The Terms of Reference do not refer to hindering and obstructing and a finding of

such behaviour cannot be said to be within their scope.

96. Paragraph 17-04 refers to the obligation which is "upon every witness called to the Tribunal to give a truthful

account of the matters upon which they are questioned…” The entire of that introductory paragraph relates to witnesses

and evidence. That chapter does not refer to any other form of failure to cooperate with the Tribunal. As has been stated

above, the ensuing list of witnesses heard by the Tribunal distinguishes between those found to have “obstructed and

entered” it and those who have “failed to cooperate”. This analysis strongly suggests that the Tribunal equated

obstruction and hindering with the giving of evidence, which it disbelieved.

97. This conclusion receives some support from an examination of the Tribunal’s treatment of the evidence. I tend to

agree with the statement in the written submissions of the appellants that it treated the evidence of Mr Joseph Murphy

junior as an attempt to set up an alibi, which would disprove the possibility that he did in fact attend the meeting at Mr

Burke’s house. It may be going too far to suggest, as the appellants do, that this amounted to a reversal of the onus of

proof. Nonetheless, it does appear from a close reading of the report that the conclusion that the alibi did not exclude the

possibility of Mr Murphy's attendance led, as the appellants suggest, "seamlessly and without further analysis or finding to

the conclusion that he had in fact attended the meeting".

98. This is not, of course, to question in any way the conclusion of fact reached by the Tribunal, which was entirely

within its province and which, moreover, has not been contested by the appellants. What does appear, however, is that

the evidence was finely balanced, that the conclusion turned significantly on the fact that the alibi or alibis did not

exclude the possibility of Mr Murphy having attended one or other of the meetings. The report does not state that the

evidence of Mr Gogarty is credible and that that of Mr Murphy is not. In short, other than the conclusions in Chapter 17,

the report contains no statement to the effect that Mr Murphy gave false evidence.

99. Thus, I do not think that the findings of the Tribunal on obstruction and hindering were validly reached. The Tribunal

did not directly address the question whether the appellants had failed to cooperate, which is one of the matters

mentioned in section 6(1). Instead, it addressed the different question of whether they had “hindered and obstructed”

the Tribunal. I do not say that they might not have used one or other of both of those words in an appropriate context.

The actual context leaves little room for doubt that it was making a distinction between a section that created a

statutory offence and the section, which gave it jurisdiction in relation to costs. Furthermore, the Tribunal appears to

have treated its own conclusion that a person’s evidence was to be rejected on a substantive issue as leading

automatically and without any further analysis to the conclusion on obstruction and hindering.

100. Finally, I turn to the question of notice. It is alleged by the appellants and not contested that the Tribunal did not at

any stage alert the appellants to the possibility that it was contemplating making findings in relation to obstruction and

hindering. The case for the respondents is simple. It says that no notice was necessary. The learned trial judge agreed.

101. The appellants complain that they were denied a fair hearing, because the Tribunal gave them no warning that it

was considering making a finding of obstruction and hindrance. They say that the Tribunal was required to apply a

heightened standard of fair procedures to any proposed findings of such gravity. The findings affect them in their

reputation, good name and their liability to incur substantial costs; they should have been given an opportunity to

comment on the Tribunal’s primary findings for the specific purpose of resisting a consequent finding of hindrance or

obstruction: at a minimum the Tribunal should have put its primary findings in relation to the resolution of the evidential

conflict before the parties before making findings of obstruction or hindrance arising out of those self same findings.

102. The basic position of the respondents, upheld by the learned trial judge, is that the appellants, in fact, had sufficient

notice, even if they had no specific notice that findings of hindering and obstructing were under consideration. The

Tribunal has power to award costs. Those appearing before it, being legally represented, must be aware of the possibility

of a finding of non-co-operation.

103. In resolving this issue, it seems right to take, as a starting point, the fact that the Tribunal enjoys an express

statutory power to award costs. The Tribunal itself treated this as a distinct function when it commenced the procedure

leading up to the costs hearings, firstly, on 16 April 2003 and, secondly, when the newly appointed Chairman gave notice

on the 14th May 2004. It is certainly true that the primary obligation of the Tribunal to report, in accordance with its

Terms of Reference, to the Houses of the Oireachtás and its power to award costs pursuant to section 6(1) of the Act of

1979, as amended, are distinct and separate functions.

104. In applying the rules of natural justice to these procedures, it must be borne in mind, as is acknowledged by the

applicants, that the requirements of natural justice vary according to the character of the proceedings and the gravity of

findings. The fact that the Tribunal is entitled to have regard, inter alia, to its view as to whether a person has failed to

cooperate with it does not necessarily mean that there has to be a separate hearing on that issue, so long as persons

potentially affected have reasonable notice of the possibility of such findings. It might well, nonetheless, be good practice

for a Tribunal to give some advance notice of the relationship between cooperation with the Tribunal and any decision

regarding costs, which it might later make.

105. In any event, that is not what happened in the present case. The Tribunal made considered findings that the two

personal appellants had hindered and obstructed its work. It is not contested that the appellants had no notice of the

possibility that such a finding might be made. It requires no expansion of the rules of natural justice to state that anyone

exposed to the risk of adverse findings of that character, amounting to an accusation of criminal conduct, should receive

reasonable advance notice. On that separate ground, I do not believe that the findings of hindering and obstructing the

work of the Tribunal made in the Second and Third Interim Reports can be allowed to stand.

Effect of invalidity of findings of hindering and obstructing on costs ruling

106. The decision of the Chairman of the Tribunal of 9th November 2004 was dually motivated. It was based in part on

“the serious findings of corruption”. The Chairman explained that he “would have considered awarding [the appellants] a

portion of the costs had they chosen to fully and honestly cooperate with the Tribunal,” which necessarily implies that he

would have deprived them of part of their costs by reason of the corruption findings, in any event. Moreover, he had

already ruled, as a matter of principle, on 30th June 2004 that he was entitled to have regard to those findings.

107. The Chairman could not have been clearer in stating, in addition, that “the adverse findings of obstructing and

hindering the Tribunal made against the Applicants were so serious, so extensive and so far reaching, as to clearly lead

any reasonable person considering them to the conclusion that the individuals concerned, ………… were intent from the

outset in ensuring that the Tribunal would not find the truth.”

108. The decision was, therefore, founded upon two reasons. The parties have not referred the court to any authorities

concerning decisions made for mixed reasons. In Kennedy v The Law Society [2002] 2 I.R. 458, this court held that a

power exercised for two purposes at an equal level of importance, one of which was unlawful, had been invalidly

exercised.

109. There cannot be any doubt but that the adverse findings of hindering and obstructing constituted a major reason for

the decision of the Tribunal. I have come to the conclusion that the findings of the Tribunal on obstruction and hindering

were not validly reached. They could not, therefore, have lawfully been taken into account when deciding on costs. Such

a decision falls within the less well known part of the judgment of Greene M.R. in Associated Provincial Picturehouses

Limited v Wednesbury Corporation [1948] I K.B. 223 that a decision may be quashed if an applicant can show that the

decision-maker has taken into account a legally irrelevant consideration. As Finlay C.J. expressed it in his judgment in P. &

F. Sharpe Ltd. v Dublin City and County Manager [1989] I.R. 701 t 717, “the decision-making authority must have regard

to all relevant and legitimate factors which are before it and must disregard any irrelevant or illegitimate factor which

might be advanced.”

110. I am satisfied that the decision of 9th November 2004 must be quashed as having been made, at least in part, on

the basis of a legally irrelevant consideration.

111. At this point, in this judgment, the appellants have established their entitlement to the central relief which they

seek. The decision refusing them costs should be set aside. The consequence is, however, that the matter will have to be

reconsidered by the Tribunal. For this reason, it is not possible to avoid addressing the first of the agreed issues.

Taking account of substantive findings of corruption when exercising its jurisdiction in respect of costs

112. The Chairman of the Tribunal, following detailed submissions on the question, reached a clearly expressed conclusion

that he was bound, in the exercise of his discretion regarding the award of costs, to have regard to the substantive

findings made by his predecessor, Mr Justice Flood, that the appellants were guilty of making corrupt payments. He

emphasised that he was not bound to refuse costs but that the corruption constituted “a factor to which [he was]

entitled to have regard in determining, whether in all the circumstances, it is equitable to make an award of costs,

whether in whole or in part.”

113. The appellants say that, both on principle and on authority, the Tribunal was not entitled to have regard to their

substantive findings when deciding the issue of costs.

114. Section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, in its original form, provided that a

tribunal was to make its decision “having regard to the findings of the Tribunal and all other relevant matters…”

115. It was in that form that the section came to be interpreted in the dictum of McCarthy J in Goodman v Hamilton,

cited above. The full statement upon which the appellants rely reads:

“Section 6: the liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of

the Inquiry. When the Inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be

represented at the Inquiry should have their costs paid out of public funds. The whole or part of those costs may

be disallowed by the Tribunal because of the conduct of or on behalf of that party at, during or in connection with

the Inquiry. The expression ‘the findings of the Tribunal’ should be read as the findings as to the conduct of the

parties at the Tribunal. In all of the cases the allowance of costs at public expense lies within the discretion of the

Tribunal, or, where appropriate, its Chairman.”

116. Three written judgments were delivered in that case, i.e., by Finlay C.J. and by Hederman and McCarthy JJ.

O’Flaherty and Egan JJ. expressly agreed with each of the judgments delivered. Thus, the judgment of McCarthy J would

appear to express the unanimous view of the Court on the points upon which he expressed views.

117. The respondents submit, however, that that the statement of McCarthy J is an obiter dictum. Furthermore, they say

that the amended section makes it clear that substantive findings may be taken into account.

118. I am quite satisfied that the dictum of McCarthy J, which I have just quoted, is not obiter. The principal argument of

the plaintiff in that case was that the establishment of the tribunal invaded the constitutionally reserved judicial sphere.

Both the High Court and the Supreme Court rejected that contention. Finlay C.J., at page 590 of the report, by way of

contrasting the function of the tribunal with the judicial function remarked that it was no “part of the function of the

judiciary in our system of law, to make a finding of fact, in effect, in vacuo.” Again, he said that it was no part of the

judicial function “to ascertain the truth or falsity of facts and report them to Parliament." The plaintiff had argued, in

part, that the tribunal had power to impose upon it a liability for costs. This is what McCarthy J addressed in the passage

quoted above. Thus, the reasons given by McCarthy J form part of the reasoning of the Court. The possibility of an award

of costs being made against the plaintiff was one of the arguments made for the plaintiff. (see page 569 of the report).

There is no distinction in principle between an order of that kind and an order depriving a party of his costs, as has

occurred here.

119. The key point made by McCarthy J was that costs might be disallowed "because of the conduct of or on behalf of

that party at, during or in connection with the Inquiry,” but not by reference to the findings made "as to the subject

matter of the inquiry." It is true that the learned judge spoke of "a single disaster" when expressing his view that a party

should normally be represented at public cost and counsel for the respondents relied strongly on this point. I see no

reason, however, to restrict the principle in that way. There is no distinction of principle, so far as costs are concerned,

between an inquiry into a single disaster and one into corruption whether in the beef industry or in the planning process.

A tribunal of inquiry is established to serve the public interest. It is in the public interest that every person in possession

of relevant information should co-operate with the inquiry. It is beyond question that the obligation to cooperate may

impose greatly on individuals and expose them to very substantial legal expense. They must incur those costs without any

advance assurance of reimbursement. I think that the ordinary presumption should be in favour of reimbursement.

Otherwise, the obligation to co-operate with Tribunals would impose loss without compensation on individuals.

120. Geoghegan J expressed similar sentiments by way of an obiter dictum in his High Court judgment in Haughey v

Moriarty, cited above. Referring to awards of costs against individuals, he said:

“In my opinion, power to award costs under the Act of 1997 is confined to instances of non co-operation with or

obstruction of the Tribunal but that of course would include the adducing of deliberately false evidence and that is

why the statutory provision specifically requires regard to be had to the findings of the Tribunal as well as all other

relevant matters.”

121. The next question is whether the words interpolated in parentheses by amendment in 1997 affect the principle

enunciated by McCarthy J. As a pure matter of construction, there is some force in this contention. The interpolated

words appear after the expression “all other relevant matters,” and may be said to qualify only that expression, leaving

“the findings of the Tribunal” standing alone. This approach certainly found favour with the Law Reform Commission in its

consultation paper published in 2003, where it said:

“It is critical that there can, therefore, be no room for the suggestion that the phrase “the findings of the

Tribunal” should be taken to mean a finding as to whether a person has failed to co-operate with the Tribunal.

Instead, this key phrase must bear its natural meaning, that is, the findings of the Tribunal as to the substantive

issue.”

122. The significance of this suggested interpretation, which is also advocated by the respondents, must be grasped. It

means that the findings of the Tribunal are no longer mere findings of the truth or falsity of allegations the subject matter

of the inquiry made, to use the expression of Finlay C.J., in vacuo. It is instructive also to recall two judicial statements

from the High Court of Australia, which had been cited with approval by Costello J in his judgment in Goodman v Hamilton

at pages 561 and 562. The citations are from a decision on the functions and role of commissions of inquiry in Victoria v.

Australian Building Construction Employees' and Building Labourers' Federation (1982) 152 C.L.R. 25, concerning a Royal

Commission which had inquired into alleged unlawful behaviour of a trade union or its members. In responding to a

challenge to these powers, Stephen J stated:

“The appointment of a commissioner to inquire into and report upon the commission of a crime creates no

prerogative criminal court; his report can neither commit anyone nor involve those consequences which a curial

finding of guilt entails. The only direct consequence of his reported conclusion that a particular person committed

a crime is that the mind of the executive is informed of his conclusion.”

123. Brennan J spoke to similar effect at pages 152-153:

“A commission of mere inquiry and report - affecting no rights, privileges or immunities, imposing no liabilities,

exposing to no legal disadvantage - cannot be (unless the circumstances are exceptional) either an authority for

the assumption of judicial functions or an interference with the judicial process. Even if a commissioner be

directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile of legal

effect . It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry

as judicial . . . The absence of any legal effect in the findings of a royal commissioner appointed merely to inquire

and report denies any suggestion that such a commissioner is exercising judicial power.”

124. This Court in Goodman v Hamilton dismissed the challenge to the powers of the tribunal in that case, because the

Court held that the powers given to the tribunal were not an invasion of the judicial function. A tribunal, in the view of

the Court, was limited to making findings of fact, in vacuo, (per Finlay C.J.). They were “sterile of legal effect” (per

Brennan J cited with approval by Costello J).

125. If it be the case that the amendment to section 6(1) has the effect of investing in the Tribunal the power to refuse

to award costs by reason of the substantive findings it has made, it is difficult to see how its findings could any longer be

described as being devoid of legal consequence, made in vacuo or sterile. I cannot accept the submission made on behalf

of the respondents that the necessary intervention of the taxing master or of processes of execution alters that

fundamental fact. It is incumbent on this Court to address, only in the last resort, a question as to the constitutional

validity of a statute. To that end, the Court must, so far as the words used by the legislature so permit, interpret those

words so that they do not conflict with the Constitution. In the present case, that task is simplified by the availability of

the judgments in Goodman v Hamilton. The link created by section 6(1) of the Act of 1979, as interpreted by the Tribunal

and as upheld by Smyth J, appears to empower the Tribunal to penalise a witness before it in respect of costs by reason

of its substantive findings. Clearly, this Court, when delivering judgment in that case did not contemplate any such

possibility. The dictum of McCarthy J avoids conferring that power on the Tribunal. If this Court had thought otherwise,

the result of Goodman v Hamilton might well have been otherwise. At the very least, the reasons given by Finlay C.J.

would of necessity have had to be different.

126. The Oireachtás can be taken to have been aware in 1997 of the decision in Goodman v Hamilton. If the legislature

had intended to negative the effect of the judgment of McCarthy J, it could have adopted clear wording to that effect. In

fact, it has left intact the words which were interpreted by McCarthy J. I agree that if the section, in its present form,

were the only matter to be interpreted, it is at least open to the meaning that the Tribunal may have regard to its

substantive findings when deciding on costs. The matter is not, however, res integra. This Court has said, per McCarthy

J, that a tribunal may not have regard to its substantive findings when deciding on costs. The words which he interpreted

are still in this section. The additional words interpolated in 1997 do not inevitably reverse the principle enunciated by the

Court in 1992. It is possible, without doing violence to language, to interpret the words in parentheses as qualifying both

“the findings of the Tribunal” and “all other relevant matters.” In the light of the decision in Goodman v Hamilton and the

obligation to interpret in conformity with the Constitution, I think that is the correct interpretation.

127. I am satisfied, therefore, that the Tribunal, in making a decision as to whether to award costs is not entitled to have

regard to its substantive findings on the subject matter of its Terms of Reference

Conclusion

128. For these reasons, I would allow the appeal. I would make a declaration that the Tribunal was not entitled to make

findings of hindering and obstructing in respect of the appellants contained in its Second and Third Interim Reports. I

would also make an order, by way of certiorari quashing the decision of the Tribunal dated 9th November 2004.