High Court of Ireland Decisions

1. This is an application brought pursuant to leave granted by the High Court (Mr. Justice Barr) on 16th March, 1998 for Judicial Review of Orders of Discovery and Production made by the Respondent against the Applicants' bank in respect of bank accounts and other documentation in the possession of the bank in connection with accounts held in the bank by one or more of the Applicants. The reliefs sought take the form of various Orders of Certiorari, various Declarations, an Order of Prohibition and an Injunction. But they are all based on one argument, namely, that the Discovery and Production Orders ought not to be given effect to having regard to the following constitutional and legal considerations.

2. The above represents a fair summary of the grounds upon which relief is sought as set out in the Statement of Grounds but I think it is important to add that both in the written and oral submissions, the overriding argument which is being made and which touches on a number of the stated grounds of relief is that as a matter of law the High Court practice and procedure and jurisprudence relating to non party discovery ought to be applied as far as possible in relation to Discovery Orders made by a 1921 Act Tribunal. This is a novel point of law which as far as I am aware has not featured in any previous case including the recent Haughey application relating to the Moriarty Tribunal. As I see it, the Applicants are placing heavy reliance on this argument because, if sustainable, they would go on to argue that the Tribunal would have to give reasons justifying an Order for Discovery or Production before it issued such an order. Put simplistically, the argument runs that in the case of a Tribunal everybody against whom an Order for Discovery is made and everybody affected by an Order for Discovery is a non party by definition because there are no "parties" to a Tribunal. The Sole Member is a person conducting an enquiry and not an adjudicator of a dispute between two or more persons.

3. Non party discovery is a relatively recent innovation in High Court procedure. It was introduced in Order 31, r.29 of the Rules of the Superior Courts, 1986. The Rule reads as follows:-

4. It is clear from the wording of that rule and from the case law that followed it that there are much stricter requirements before a party can obtain an order for non party discovery in the High Court than exist for the purpose of obtaining an ordinary Order for Discovery against the other party. The ordinary inter partes discovery is made under Order 31, r.12(1) of the Rules. Under that rule, the court can only refuse to make an Order for Discovery if satisfied that the discovery is not necessary or not necessary at that stage of the proceedings. Finlay C.J. made a comparison between the two rules in Allied Irish Banks Plc. -v- Ernst & Whinney , 1993 1 I.R. 375 at p.388. He pointed out:-

5. If a Tribunal of Inquiry under the 1921 Act as amended is confined in its powers of making Discovery Orders to the parameters of Rule 29 of Order 31, this would, I think, considerably curb the Tribunal in its powers of investigation. I have come to the conclusion that the rules relating to Discovery from non parties do not have any application to Tribunals of Inquiry under the 1921 Act for the reasons which I now set forth.

6. Section 1 of the Tribunals of Inquiry (Evidence) Act, 1921 provides that in the case of a Tribunal established in the manner described by the Act, such a Tribunal "shall have all such powers, rights and privileges as are vested in the High Court,..... or a Judge of (that) court, on the occasion of an action" in respect of several matters therein set out, one of them being "the compelling the production of documents". The concept of non party discovery and the special limitations and safeguards relating to it were not in existence or known to Parliament at the time that the 1921 Act was enacted. I am satisfied, especially having regard to the reference to "an action" in the section, that Parliament was intending that even though there are no parties to a Tribunal, the Tribunal nevertheless should have the same power in compelling production of documents as the High Court had, with the same powers, rights and privileges as though the person against whom discovery or production was being sought was in fact a party. What the Act permits, in my view, is ordinary discovery on the assumption that the person against whom the discovery is being made is a party rather than on the assumption that he is a non party. Even though strictly speaking the 1921 Act refers only to the compelling of the production of documents and not to an Order for Discovery as such, I think that the reference to "all such powers, rights and privileges as are vested in the High Court" must include the order to make discovery which is a natural preliminary to an order for the production of documents. But if I am wrong in that interpretation, I am satisfied that the Tribunal would have a power to make Orders of Discovery under Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 which confers on the Tribunal power to make such orders as it considers necessary and it is to have in relation to making such orders all powers, rights and privileges as are vested in the High Court. But as of the passing of the 1979 Act also, non party discovery was not provided for in the Superior Court Rules and was not a practice in the High Court. The Sole Member, therefore, in my view, has power to make an Order for Discovery against a person as though that person was a party. He cannot make an Order for Discovery if such an order would not have been procurable in High Court proceedings as against another party, but he is not bound by any of the restrictions imported into the concept of non party discovery.

7. I now turn to deal with each of the specific grounds as summarised above. I started with the non party discovery point, as in my view, it underlies most of the objections to the Tribunal's procedures being raised in this case. I will now, however, deal with the objection that the Sole Member has been carrying out his functions in private and in particular has made the Orders for Discovery in private. I have already expressed the view in Haughey -v- Mr. Justice Moriarty , unreported judgment delivered 28th April, 1998 that it is inherent in the nature of a Tribunal of Inquiry that the evidence gathering part of the process would be carried out in private and that the 1921 Act, in so far as it referred to the entitlement of the public to be present at any proceedings of the Tribunal unless an order was otherwise made by it refers to the actual hearings and not to the evidence gathering. At any rate it is clear that Mr. Justice Flood decided to make these Orders of Discovery without any public hearing, there is no reason not to draw the inference that he considered it in the public interest expedient to do so. There is no hard and fast rule about procedures during the evidence gathering process. It is interesting that Mr. Justice McCracken in the Dunnes Payments Tribunal, Mr. Justice Moriarty in the Haughey Tribunal and Mr. Justice Flood in this Tribunal have each adopted slightly different procedures but none of them held a public hearing before seeking discovery. It has been pointed out at the hearing of this case that there is nothing in the 1921 Act or the amending acts which requires there to be counsel for the Tribunal at all and indeed it is clear from a reading of the Report of the British Royal Commission on Tribunals chaired by Lord Justice Salmon (as he then was) that very different procedures were adopted in the U.K. in the early days. We know that in a Tribunal conducted in the early nineteen forties in this jurisdiction, there was no Registrar taken from the Central Office and no Counsel fort he Tribunal as such but simply a Secretary who was a practising barrister. Furthermore, there is no evidence before me of anyone being actually refused permission by Mr. Justice Flood to attend any work of the Tribunal. One can assume that members of the public would not be permitted to attend the evidence gathering process. In my view, therefore, this ground of objection fails.

8. The next question to be considered is whether it was a breach of natural and constitutional justice to make Orders for Discovery affecting the Applicants without giving prior notice of intention to do so to the Applicants or affording the Applicants an opportunity to make representations thereon. In the Haughey case cited above, I expressed the view that in the case of "connected persons" at least, there should be some opportunity given to them apart from exceptional cases to either object to the orders being made or to apply to have the orders discharged or varied. In my view, it would have been obvious to Mr. Michael Bailey or to Bovale Developments Limited that having regard to the Terms of Reference, Discovery Orders against their banks would be likely. One of the matters that had to be enquired into in the Terms of Reference was:-

9. It would be unthinkable that any Tribunal carrying out its work efficiently would not seek discovery and production of all documentation held by the banks of Mr. Gogarty, Mr. Bailey or any connected person or company. Bovale Developments Limited is a company effectively controlled by Mr. Bailey or at the very least his knowledge of the Terms of Reference must be imputed to that company. I do accept that Mrs. Bailey might be in a somewhat different position in that one would have to postulate at least that she might not be aware of the details of the Terms of Reference. However, what the Tribunal in fact did was to serve Discovery Orders on the bank with the following subsidiary order contained in the order itself:-

10. As I already indicated in the Haughey case , I see nothing wrong in a procedure whereby instead of giving advance notice of an intention to make an Order for Discovery, an Order for Discovery is served with an opportunity given to apply to have it varied or discharged. I think, therefore, that the procedure adopted by Mr. Justice Flood was prima facie a fair procedure but unfortunately copies of the Discovery Orders on the banks were not served by the Tribunal on the account holders nor was any notice of the orders given to the account holders by the Tribunal. If on that account, there was a defect or element of unfairness in the procedure, it was entirely cured by the fact that the bank itself notified the Applicants of the orders and furnished copies. It is argued, on behalf of the Tribunal, that it would have been assumed all along that that would happen. That may be so but at any rate it did happen. In these circumstances, I do not think that any of the Applicants can be heard to object to the procedure. They were aware from the terms of the orders that they were entitled to apply to the Tribunal to have the orders varied or discharged but they did not avail of that opportunity. Instead, they instituted these Judicial Review proceedings. That course was not justified though it is important to understand the reason for it or at least what I perceive to be the reason for it.

11. Although the Applicants never entered into any correspondence with the Tribunal in relation to the Orders for Discovery served on the bank they did do so in relation to Orders for Discovery served on themselves. That dispute with the Tribunal is still ongoing and indeed there is a threat of a separate Judicial Review proceeding relating to it. Although the correspondence in that dispute was fully opened to this court, I do not intend to review it in any detail but rather to summarise the effect of it as it undoubtedly has some peripheral relevance in this case. The solicitors for the Applicants initially asked for "a copy of any order made by the Tribunal pursuant to the provisions of Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921 at which it was determined in the opinion of the Tribunal that was in the public interest expedient to sit otherwise than in public for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given in relation to any matter concerning our clients". That particular query was replied to in the following manner:-

12. Further correspondence ensued in which the validity of the Tribunal's orders was challenged by the solicitors for the Applicants and this culminated in a letter from the Tribunal dated 13th March, 1998 in which the following sentence appeared:-

13. Effectively, what then happened was that the Applicants sought to apply to the Tribunal to have the Discovery Orders discharged on grounds relating to their alleged validity including what might be loosely described as natural justice grounds. The Tribunal on the other hand took the view as expressed in the correspondence that it would not entertain any application based on those kind of arguments but would entertain an application based on "factual matters". Effectively, what the Sole Member was saying was that he would entertain any applications to vary or discharge the Discovery Orders which were based on arguments on the merits but he would not entertain arguments as to the validity of the orders. As I understand it, the Tribunal was at all stages willing to entertain an application to vary or discharge the Discovery Orders on the kind of merits grounds that any party to a proceeding might make in resisting an application for discovery such as, for example, irrelevancy or that excessive documentation was being required having regard to the Terms of Reference, etc. I have little doubt that the Applicants' primary interest is to defeat the Orders for Discovery altogether on either jurisdictional grounds or on the grounds that the Tribunal had not satisfied the requirements of the High Court in relation to non party discovery and that they were not interested in confining themselves to so called "factual grounds". As they would have anticipated that they would be met by a similar response from the Tribunal in relation to the Discovery Orders on the banks as they had met in relation to the Discovery Orders on themselves, they went the route of Judicial Review in the High Court.

14. If the Applicants had taken up the invitation to apply to the Tribunal to vary or discharge its orders it could have made to the Tribunal two of the main complaints which Counsel for the Applicants made at the hearing of this application. The first of these is that the Orders for Discovery against the bank did not have any commencement or termination dates whereas that was not so in relation to the Orders for Discovery against the Applicants. Counsel for the Tribunal was unwilling to commit himself to any reason for this difference and I am left with the impression that it was in fact a mistake or rather that the absence of commencement date was a mistake. But whether it was a mistake or not, it is something that could have been raised before the Tribunal. The Applicants cannot complain against the Tribunal when the Tribunal gave them the opportunity to make their objections. The same is true of the other main complaint that the discovery could prove very costly (and indeed there is evidence that it would be very costly) and that the Applicants might be on jeopardy of having to pay that cost. Again this point could have been raised before the Tribunal and I do not think that it is a legitimate matter to raise in Judicial Review proceedings when the opportunity was not taken up to make any point about it before the Tribunal.

15. There would appear to be no merits either in the argument that the Tribunal should have made use of the Bankers' Books Evidence Act rather than discovery. In my view, the two procedures are quite different and for different purposes and there is no connection between them.

16. The next matter that has to be considered is the alleged unconstitutional invasion of privacy. It is not necessary to consider whether there is a constitutional right to privacy in relation to a bank account or other documentation in possession of the bank. Even if there is, it is perfectly clear provided the bank accounts are relevant to the Terms of Reference, the interference with the right created by the Orders of Discovery was a reasonable one in balancing the rights of the individual and the rights of the public.

17. For the reasons which I have indicated I have concluded that I should refuse the Judicial Review sought. But there is one matter which concerns me. It would appear that the Applicants may have at least arguable grounds for seeking a variation of the Discovery Orders made but they were unwilling to make the application to the Tribunal because of their hope and expectation that they might be able to attack the validity of the orders altogether. Counsel for the Tribunal has assured this Court that even at this stage the Tribunal will entertain an application to vary or discharge the orders provided that the application is confined to factual matters. As I have already pointed out, there is a problem about the absence of dates on the orders and there could arguably be a question of cost. I am pleased, therefore, that the Tribunal is willing to entertain such an application. That is the correct forum in which the complaints should be made.