Court grants declaration and costs but refuses to compel government report amendment without hearing.

THE COURT OF APPEAL

Neutral Citation Number: [2017] IECA 48

Appeal Nos. 2015/321

Ryan P.

Finlay Geoghegan J.

Irvine J.

BETWEEN/

ALAN SHATTER

APPLICANT / APPELLANT

- AND -

SEAN GUERIN

RESPONDENT

JUDGMENT of Ms. Justice Irvine delivered on the 2nd day of March 2017

1. This judgment deals with one issue only, namely the relief to which the successful appellant, Mr. Shatter, is entitled by reason of

the judgments of this Court delivered on 10th November 2016.

2. In the course of a brief hearing convened for the purposes of considering this issue Mr. Paul Sreenan S.C. on Mr. Shatter’s behalf

submits that the Court should grant the following relief:-

1. A declaration that the conclusions in the respondent’s report dated 6th May 2014 and which are to be found in the

schedule to his statement of grounds, were reached in breach of fair procedures and constitutional and natural justice;

2. an order of certiorari quashing the said conclusions;

3. an order requiring the respondent to deliver to An Taoiseach a copy of the order of this Court;

4. an order requiring the respondent to amend his report of 6th May 2014 by deleting therefrom the conclusions the

subject of the aforesaid order of certiorari and to deliver to An Taoiseach a copy of the said amended reports;

5. an order that the respondent pay the applicant’s costs of and incidental to the proceedings in the High Court and the

appeal, the same to be taxed in default of agreement.

3. The parties are agreed that, in light of the judgments delivered on 10th November last that Mr. Shatter is entitled to the first of

the aforementioned reliefs, namely, a declaration in the terms therein specified.

4. There can also be no real dispute as to Mr. Shatter’s entitlement to an order for his costs in the terms identified by Mr. Sreenan,

albeit that Mr. McDermott S.C. on behalf of Mr. Guerin cannot formally accede to such an order. The starting point for the Court’s

consideration is, of course, Order 99 of the Rules of the Superior Courts which provides that costs shall follow the event unless some

special cause is advanced to justify a departure from that rule. No such cause having been advanced, Mr Shatter is entitled to his

costs as claimed.

5. As to the submission that this Court should make an order requiring Mr Guerin to deliver to An Taoiseach a copy of the order of this

Court, I am not satisfied that such an order is justified or for that matter required. It is not required, as was submitted by Mr.

Sreenan, to give effect to the judgment of the Court. The Court order is a public document and as such Mr. Shatter is in a position to

circulate it to whomsoever he wishes. It is true, as was stated by Mr Sreenan, that the High Court made an order in somewhat similar

terms in proceedings brought by the late George Redmond against the Mahon Tribunal. That order was, however, made with the

consent of the parties following the settlement of the proceedings and is accordingly of scant value as authority to support the

making of such an order where the relief claimed is resisted by the opposing party.

6. The order of certiorari sought on behalf of Mr. Shatter causes me significant concern as does his application for an order requiring

Mr. Guerin to amend and delete from his report the findings and conclusions which this Court has found were made in breach of Mr.

Shatter’s rights to fair procedures and constitutional and natural justice.

7. It does not follow, as was urged upon the Court by Mr. Sreenan, that just because Mr. Shatter obtained leave of the court to

pursue relief in the form of an order of certiorari that he is necessarily entitled to such an order in light of the Court’s findings.

8. The obligation on this Court to vindicate Mr. Shatter’s right to his good name under Art. 40.3.2 of the Constitution is indisputable.

However, as the very language of the accompanying obligation in Art. 40.3.1 makes clear, its obligation is to do so as far as is

practicable and what is practicable may be circumscribed by the circumstances of the case itself and the parties to the litigation. His

rights are to be vindicated within the confines of the litigation.

9. It is in this context that I am satisfied that it is not practicable to grant Mr Shatter an order requiring Mr. Guerin to amend his

report of 6th May 2014 in the manner proposed. I accept the submission made by Mr. McDermott that the report is no longer in his

client’s possession or under his control, the same having been handed over to the Government on 6th May 2014, some months prior to

the commencement of the within proceedings.

10. As to the order of certiorari sought, I am unconvinced, on the facts of this case, that the Court should exercise its discretion to

grant such relief. In this regard it is crucial to recognise that if such an order were to be made, it would have to be directed to the

Government. That being so, I am particularly concerned that the Court should be asked to make an order to quash findings and

conclusions in a report which the Government procured and which was under its control at the time these proceedings were issued,

but where, because it is not a party to the proceedings, it is proposed that it should be afforded no opportunity to make submissions

concerning either the Court’s jurisdiction to make such an order or as to the merits of such an application. The Government might well

have a range of legitimate arguments to advance as to why such an order should not be made. Whatever about granting such relief if

the Government had been heard on the matter, I would not be prepared to make such an order in its absence. To do so would offend

its rights to natural justice and fair procedures, the very rights espoused by this Court in the judgments delivered on the substantive

issue. In such circumstances it is unnecessary to consider whether the court enjoys the jurisdiction to make an order certiorari of the

nature and scope proposed in relation to a report of the type under scrutiny in these proceedings.

11. Returning to the obligation of the court to vindicate insofar as is practicable the good name of Mr Shatter: bearing in mind the

factors to which I have already referred and which circumscribe the court’s powers, I am satisfied that in the circumstances of this

case, the very nature of the decision made by this Court and its affirmation that the findings and conclusions made by Mr. Guerin

were made in breach of Mr. Shatter’s rights to fair procedures and constitutional and natural justice is in itself a sufficient vindication

of his Art. 40 rights.

Ancilliary matters

12. I am reluctant to offer any view as to the nature or extent of any obligations, constitutional or otherwise, imposed upon the

Government by virtue of the judgments and findings of this Court. It follows that I would also refrain from affording guidance as to

how any such obligations might be discharged. After all, the Government is not a party to these proceedings and for that reason has

not been afforded the opportunity of a hearing on either issue.

13. The Government may well have in mind the implementation of measures concerning the report which will satisfy Mr. Shatter’s

concerns regarding any ongoing damage to his reputation. Indeed, it would appear from what was said by counsel for Mr. Shatter in

the course of the most recent hearing, that such a process may already be underway.

14. Should it prove necessary, it is open to Mr. Shatter, in the light of the judgments of this Court and the declaration to which it is

agreed he is entitled, to indicate to the Government, how he believes it might best address the damage to his reputation which will

remain tarnished for so long as the report remains within the public domain in its present form. However, it would be both premature

and wrong for me to anticipate that the Government might not meet in full such proposals as Mr. Shatter might advance as to how his

good name and reputation can best be restored in light of the subsisting report and the findings of this Court.

15. Should he find himself dissatisfied with the response of Government to any such proposals, it will be for Mr. Shatter, presumably in

consultation with his legal advisors, to consider what, if any, remedies are available to him and how they might best be pursued.

Because of the appellate nature of the jurisdiction of this court, it goes without saying that any such remedies would of necessity

have to be pursued before a court of first instance.

16. For all of the reasons earlier advised I would favour granting only the first and fifth of the reliefs sought by Mr Sreenan on behalf

of his client.