the supreme court appeal no. 119/2006 (high …webfiles... · between: joseph murphy, frank...
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THE SUPREME COURT
Appeal No. 119/2006
(High Court Record No.2004/4910P)
Denham J. Harriman 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.