High Court of Ireland Decisions

6 March 2000



MORRIS P:

Introduction

The applicants in these proceedings are Mr Thomas Bailey and Mrs Caroline Bailey, who are husband and wife, and Bovale Developments Ltd (henceforth "Bovale), a company of which Mr Bailey is a director. The respondent is the Hon Mr Justice Feargus Flood, the Sole Member of the Tribunal of Inquiry into Certain Planning Matters (henceforth "the Sole Member"). This is an application for judicial review of a decision of the Sole Member dated the 8 February, 2000, refusing to make an order pursuant to section 2 of the Tribunal of Inquiries (Evidence) Act, 1921, to hear the evidence of the applicants' financial affairs otherwise than in public. On the 10 February, 2000, the High Court (Carney J) gave leave to apply for various reliefs by way of judicial review and the matter has come before this Court accordingly.

Factual background

The background is as follows. The Tribunal of Inquiry into Certain Planning Matters was established by instrument dated the 4 November, 1997, of the Minister for the Environment, as amended by a further instrument dated the 15 July, 1998, in order to inquire urgently into and report and make such findings and recommendations as it should see fit on the definite matters of public importance set out in a resolution (the "Terms of Reference") passed by Dail Eireann on the 7 October, 1997, and by Seanad Eireann on the following day. The Terms of Reference were extended by further resolutions passed by Dail Eireann on the 1 July, 1998, and by Seanad Eireann on the 2 July, 1998. Clause 4(a) of the-Terms of Reference, to which much reference was made in the course of argument, requires the Tribunal to inquire into:

"The identity of all recipients of payments made to political parties or members of either House of the Oireachtas, past or present, or members or officials of a Dublin local authority or other public official by Mr Gogarty or Mr Bailey or a connected person or company within the meaning of the Ethics 'in Public Office Act, 1995, and the circumstances, considerations and motives relative to any such payment".

The "Mr Gogarty" referred to here is Mr James Gogarty, a witness before the Tribunal, and "Mr Bailey" is Mr Michael Bailey, the brother and fellow Bovale director of Mr Thomas Bailey.

In a sworn statement to the Tribunal dated the 12 October, 1998, Mr James Gogarty made certain allegations against Mr Michael Bailey, among others. For the purposes of the present proceedings, two of those allegations are of particular importance. The first relates to an alleged payment to Mr Raphael Burke by Mr Michael Bailey, and the second to an alleged payment made by Mr Michael Bailey to Mr Gogarty himself.

The first of these allegations may be summarised as follows, which I stress is no more than what is alleged by Mr Gogarty. At a meeting in the offices of Mr Gogarty's employer, Joseph Murphy Structural Engineering Ltd (a company in the Murphy Group, henceforth "JMSE"), held in early June, 1989, attended by Mr Gogarty, Mr Michael Bailey, Mr Joseph Murphy Jnr, and another person, Mr Bailey had participated in the discussion of a proposal whereby he would acquire a 50 per cent interest in all Murphy Group lands in North County Dublin in return for securing the rezoning and planning permissions required in order to allow the lands to be developed. Mr Bailey said that he would be prepared to spend up to £2,000 per acre to obtain the necessary planning permissions and that the money would be used through Mr Raphael Burke, then a TD and Government minister, to ensure that the rezonings were passed by the requisite majority of members of Dublin County Council. Mr Bailey held himself out as a major contributor to Mr Burke. Subsequently Mr Bailey agreed to pay the sum of £40,000 to Mr Burke on the basis that the Murphy Group would make a similar payment. On the 8 June, 1989, Mr Bailey drove Mr Gogarty and Joseph Murphy Jnr, from the JMSE premises in Santry to Mr Burke's home, where Mr Gogarty passed a brown envelope containing £30,000 in cash and a cheque for £10,000 to Mr Burke and Mr Bailey handed over another brown envelope that Mr Gogarty assumed also contained £40,000 as his previously agreed equal contribution. I shall refer to this alleged payment as "the Burke payment".

It was further alleged that an agreement for the sale of seven separate parcels of land or other property (henceforth "the Lands") by the Murphy Group to Mr Michael Bailey and Mr Thomas Bailey (per Bovale) for £2.3 million was eventually reached and that contracts were exchanged at the end of 1989. However, a dispute arose between the parties and at the end of July or early August, 1990, a meeting was held in the Swiss Cottage, Santry, attended by Mr Gogarty, Mr Michael Bailey, Mr Thomas Bailey and Mr Joseph Murphy Jnr, at which Mr Michael Bailey offered to re-sell 50 per cent of the Lands to Mr Joseph Murphy Jnr, for £8 million. This proposal was rejected but Mr Murphy Jnr, said that he would discuss it further with his father, Mr Joseph Murphy Snr.

The second of Mr Gogarty's allegations relevant to these proceedings is this. Having fallen out with the Murphy Group over the terms of his severance package, Mr Gogarty met with Mr Michael Bailey in late August or early September, 1990, at the Skylon Hotel, Drumcondra, where Mr Bailey expressed concern at the ongoing dispute between Mr Gogarty and JMSE. He said that he wanted to avoid a court hearing because of the risk of publicity about the payment to Mr Burke and expressed the worry that he would never again get planning permission for anything should such publicity erupt. As the meeting ended Mr Bailey placed a small envelope in the breast pocket of Mr Gogarty's jacket, which Mr Gogarty discovered on returning home contained a cheque for £50,000 post-dated the 30 September, 1990, drawn in his favour. At the meeting Mr Bailey had made it clear that he wanted Mr Gogarty to forget the past and desist from his proceedings against JMSE and simply to enjoy life. I shall refer to this alleged payment as "the Gogarty payment". On Mr Gogarty's version of events the Gogarty payment was made as what has been called "hush money" during the course of the proceedings. --

Owing to his age, the state of his health and the seriousness of his allegations, the Sole Member decided to proceed to hear Mr Gogarty's evidence immediately. By a letter of the 20 October, 1998, the Solicitor to the Tribunal, at the direction of the Sole Member, wrote to those persons affected by the contents of Mr Gogarty's statement, furnishing them with copies of the statement and affording them the opportunity to reply. Such letters were sent to Mr Michael Bailey and Mr Thomas Bailey, the latter because (a) along with Mr Michael Bailey he was a director of Bovale; (b) again with Mr Michael Bailey, he was a signatory on the contracts for the acquisition of the Lands; (c) he was a person connected with Mr Michael Bailey within the meaning of paragraph 4(a) of the Terms of Reference; and (d) he was alleged by Mr Gogarty to have been present at the Swiss Cottage meeting where the re-sale of the lands to Mr; Joseph Murphy Jnr, was said to have been discussed. The letter stated that the Tribunal intended to deal with all matters concerning Mr Gogarty's allegations before proceeding with any other aspect of its public work. This phase of the Tribunal's inquiry has become known as "the Gogarty Module". Mr Thomas Bailey was informed that he would be allowed to attend at the sittings of the Tribunal for the taking of Mr Gogarty's evidence and to cross-examine Mr Gogarty on that evidence. He was also required to give a statement dealing with the matters in Mr Gogarty's statement and was requested to furnish a statement of the evidence that he proposed to give. He was also asked to provide the names and addresses of any persons he wished to call in evidence and statements of such evidence. Mr Thomas Bailey never furnished any narrative statement of the evidence he proposed to give, nor has he identified any other relevant witness.

Mr Michael Bailey did provide a statement, which was received by the Tribunal on the 11 January, 1999, the day before public sittings commenced. In this statement Mr Bailey vigorously contested many of the allegations made by Mr Gogarty and in particular denied that he had ever made the Burke payment. He also made a bare denial of having paid money to Mr Gogarty in exchange for his agreement to forget about pursuing proceedings against JMSE and simply to enjoy life. It was in cross-examination of Mr Gogarty by Mr Colm Allen, SC, counsel for Messrs Bailey and Bailey and Bovale, that Mr Michael Bailey's version of events surrounding the Gogarty payment emerged. On the 25 March, 1999 (day 34 of the public sittings), Mr Allen stated that Mr Bailey would be giving evidence to the following effect. During the negotiations for the purchase of the Lands, Mr Gogarty had made it clear that he would require to be paid a finder's fee of £150,000. Mr Michael Bailey had agreed to pay this sum in three equal instalments of £50,000 each and on the 23 November, 1989, the first of these payments was made to Mr Gogarty, in cash, at the Royal Dublin Hotel on O'Connell Street in Dublin. The other payments were made at the same meeting by handing over two cheques post-dated the 31 March, 1990 and the 30 September, 1990, respectively. Mr Gogarty was paid £162,000 in total because of his insistence that he be paid interest in respect of the delayed payment of certain monies; Counsel for the Tribunal stated that this was the first time that this information had been conveyed to the Tribunal and asked that the relevant accounts and bank accounts of Bovale be produced in order to show from where this money had come. Mr Allen stated that such documents had already been discovered.

The cross-examination of Mr Gogarty by Mr Allen finished on the 26 March, 1999, and the Sole Member directed the Tribunal Solicitor, Ms Maire Ann Howard, to write that day to the solicitor for Messrs Bailey and Bailey and Bovale, Mr TK Smith of Smith Foy & Partners, requesting a further detailed statement to be furnished to the Tribunal by Mr Michael Bailey and a statement to be provided by Mr Thomas Bailey, giving detailed accounts of their knowledge of and involvement in any matters in respect of which evidence had been given by Mr Gogarty. In a reply dated the 31 March, 1999, Mr Smith stated that there was no obligation on their clients to furnish statements.

In giving his evidence before the Tribunal, commencing on the 19 July, 1999 (day 72), Mr Michael Bailey controverted Mr Gogarty's version of the Gogarty payment and stated that the cheque for £50,000 had been paid to him as part of a finder's fee. He also stated that Mr Gogarty had been paid in total £162,000 by way of this fee and claimed that there were accounting records of this payment, which would be available from Mr Joe O'Toole of Messrs McGrath & Co, auditors of Bovale.

The Sole Member then directed that Mr Joe O'Toole should be summoned to give evidence before the Tribunal and this evidence commenced on the 14 July, 1999 (day 75). The earliest documents produced by Mr O'Toole to the Tribunal related to the financial year 1 July, 1990 to 30 June, 1991. He explained that the documents relating to the previous year, within which the contracts in relation to the Lands were exchanged and the alleged meeting at the Royal Dublin Hotel took place, were unavailable. He assumed that this was because they had been among a number of documents destroyed by water damage at his firm's offices in Celbridge on the 30 December, 1992.

Mr Michael Bailey again gave evidence on the 15 July, 1999 (day 76). He said that a pocket notebook, known as the "Kitten Notebook" because it bore a picture of a kitten on its front cover, contained handwritten entries concerning three payments to Mr Gogarty, namely, in June, 1990 a payment of £5,000; on the 26 July, 1990, a payment of £10,000; and on the 11 October, 1990, a payment of £15,000. He had not known, he said, of the existence of the Kitten Notebook until after the commencement of the work of the Tribunal, when it had been produced to him by Mr Thomas Bailey as proof of his having made payments to Mr Gogarty. He said that the handwriting in the notebook was that of Mrs Caroline Bailey.

The Solicitor to the Tribunal, Maire Ann Howard, in an affidavit sworn on the 17 February, 2000, deposes to the fact that at the conclusion of the evidence of Mr Michael Bailey and Mr Joe O'Toole, the Sole Member took the view that Mr Thomas Bailey and Mrs Caroline Bailey, who had been a book-keeper for Bovale, had either been actively involved in or had been observers of certain events that were the subject of inquiry at that time. I should say at this point that all parties to the present proceedings accept that this affidavit fairly reflects the views of the Sole Member. Consequently Mrs Caroline Bailey, by letter of the 23 July, 1999, was asked to assist with the Tribunal's inquiries in relation to the accounts of Bovale. At her request, on the 26 July, 1999, she was served with a witness summons and she gave evidence on the 22 November, 1999 (day 106). She was questioned closely about the book-keeping practices within Bovale. In particular, she was asked about the contents of the Kitten Notebook. She stated that this notebook was used as a memory aid for Mr Thomas Bailey for bonuses he would have paid to the employees. There was, she said, no record of these Kitten Book payments going through the books of accounts. She did not know from where the opening balance of £5,207.90 derived, although she thought that it was probably another cash account, and stated that it would have been Mr Thomas Bailey who had this cash. She and her husband would reconcile the entries in the Kitten Notebook together, on a weekly basis. She stated that the payments to Mr Gogarty were none of her business and that she had no interest in them.

Mr Thomas Bailey gave evidence on the following day. As he had not furnished a narrative statement to the Tribunal it was envisaged that he would be examined in order to take preliminary evidence and that he would then stand down to be recalled on a later date after the Tribunal and any affected persons had had the opportunity to peruse the evidence given. He confirmed Mr Michael Bailey's version of events in relation to the Gogarty payment, namely that it had been made as part of a finder's fee rather than as "hush money".

Having heard all this evidence, Ms Howard avers that certain matters appeared to be the case to the Sole Member. Many of these matters relate to particular aspects of the manner in which Bovale's finances were operated, aspects that I have foregone from detailing here. However, I think it is fair to say that the Sole Member's view may be summarised by saying that it appeared to him that the financial affairs of Mr Michael Bailey, Mr Thomas Bailey, Mrs Caroline Bailey and Bovale itself were so inextricably bound up together that it was impossible to separate one from the others.

Now we come down to the heart of the matter. There followed numerous requests for further documentation and information, culminating in a letter of the 20 January, 2000, whereby Ms Howard wrote to Mr Smith seeking to obtain, prior to the resumption of the evidence of Mr Thomas Bailey, Mrs Caroline Bailey and Mr O'Toole, certain financial details under the following six headings: (1). Source of lodgments to personal bank accounts; (2) Bank accounts re Kitten Book; (3) Personal monies withdrawn from Bovale; (4) Sale of land in Donabate; (5) Grange lands; and (6) Celtic Helicopters. Under heading (1), Source of lodgments to personal bank accounts, the letter requested inter cilia "a schedule of all the principal assets, acquired by your clients previously outlined in the period from the 1 July, 1987 to the 30 June, 1991 and copy contracts (if any) relating to purchase of land/property, and details of the source of funds used to finance such purchases, cross referenced to the relevant bank/loan account statements". In his affidavit sworn on the 10 February 2000, Mr Thomas Bailey avers, at paragraph 34:

"As appears from the letter of the 20 January, 2000, information was sought as to the intimate financial affairs of myself and my wife (the second named applicant). Specifically, the following information, inter alia, was sought:

(i) Schedule of all assets held by myself and my wife as at the 1 July, 1987 and at the 30 June, 1991;

(ii) Details of the accounting treatment applied in producing the audited financial statements of Bovale Developments Limited in respect of cheques withdrawn from its bank accounts and lodged to our personal accounts;

(iii) Details of the accounting treatment applied in producing the audited financial statements of Bovale Developments Limited in respect of cash payments recorded in the kitten book;

(iv) A formal statement with regard to any other monies withdrawn from Bovale Developments Limited in the period from the 1 July, 1988 to the 30 July, 1991."

In his reply of the 24 January, 2000, Mr Smith asserted that neither statements nor documents volunteered to a tribunal of inquiry attract the privileges provided for under section 5 of the Tribunals of Inquiry Act, 1979, and that in the circumstances his clients had instructed him that "whereas they will, of course, provide evidence on oath before the Sole Member, they are not in a position to furnish the information now sought other than in the form of the sworn evidence or to produce documents other than pursuant to order". Mr Smith also expressed difficulty in understanding the relevance of the private financial affairs of his clients over an extended period to the work of the Tribunal, in particular to the allegations made by Mr Gogarty. He called on the Sole Member to explain how he had interpreted the Terms of Reference so as to make this information relevant.

In her reply to this letter, dated the 25 January, 2000, Ms Howard requested Mr Thomas Bailey and Mrs Caroline Bailey to furnish the Tribunal with any relevant documentation prior to their re-examination. She went on to explain why it was considered necessary to inquire into their financial affairs, stating:

"The inquiries which involve consideration of your client's financial affairs arise from the fact that the documents provided to the Tribunal to date and the evidence of your clients suggest that your clients' business affairs are transacted to a significant degree [through] the personal bank accounts of the individual directors and in some cases through the accounts nominally held in the name of the wife of one of the directors namely Caroline Bailey. The evidence also suggests that substantial sums of money were being taken by the directors of the company either without being properly accounted for in the books and records being maintained by the company or by being attributed to headings in respect of which the expenditure was not actually incurred.

In view of the evidence of James Gogarty to the effect that your client Michael Bailey informed him that he could procure planning permission in Dublin County Council, by reason of his control over certain elected public representatives and in view of the evidence to the effect that your client Michael Bailey purported to pay Ray Burke a sum of money equal to that paid by James Gogarty on behalf of Joseph Murphy Structural Engineers Limited, it is clear that an examination of your clients' financial affairs is necessary as it may establish the fact of such payments having been made as alleged.

In addition your clients have alleged that James Gogarty has given false evidence to the Tribunal in his denial of receipt of the sum of £162,000 which was allegedly paid to him by your clients over a period of years between 1989 and 1996. The examination of your clients' financial affairs may either establish or disprove the veracity of these allegations.

The Tribunal has sought to inquire into the relevant matters in a manner in which (sic) would limit the extent to which your clients' financial affairs are publicly aired so as to avoid unnecessary publication. However, in view of the stance adopted by your clients in response to requests to provide a narrative statement of events and relevant information it is necessary for the proper conduct of the inquiry to pursue the investigations in public."

This letter provoked a response dated the 27 January, 2000:

"27 January 2000

Dear Ms Howard

Re: Tribunal of Inquiry into Certain Planning Matters and Payments Our Clients: Bailey/Bovale Developments Limited

Request for written statement/information

Your letter of 25th instant refers.

We note that the Sole member intends to permit examination of our clients in relation to their personal financial affairs on the basis that same may be relevant to issue of payments to Mr James Gogarty (specifically, a payment of a finder's fee of IR £162,000).

As stated in previous correspondence, the question of payments to Mr Gogarty is a collateral issue only ie, it is not directly relevant to the terms of reference, and is not a matter in which the Sole Member is required to address in his report: Mr Gogarty is not a public official within the meaning of A.3 or A.4 of the terms of reference. In the circumstances, the Sole Member is not required to conduct an exhaustive inquiry into all possible sources of these payments; this is particularly so where the matters is essentially a private matter between the parties. The Sole Member has heard two conflicting versions of the cheque of IR£50,000 of September, 1990. The Sole member is entitled to have regard to this evidence and such documentary evidence as is put forward in support of same, but is not required to extend his inquiry so as to trawl through the private financial affairs of our clients. There must be some limit to the pursuit of collateral matters. We wish to have an objection to the relevance of the proposed examination formally noted.

Even if one were to accept (and same is not conceded) that the collateral issue of payments to Mr Gogarty permitted an examination of the private financial affairs of our clients, it is apparent that the scope of the proposed examination greatly exceeds the latitude that even an extended reading of the terms of reference could reasonably permit. For example, our clients are requested to provide a detailed explanation of the book-keeping and accounting treatment of Bovale Developments Limited with respect, such an explanation could only be relevant to an inquiry into compliance with company law requirements and/or revenue law requirements. Such an inquiry is not mandated by the Sole Member's terms of reference, and it is further submitted that any attempt to employ the extensive powers under the Tribunals of Inquiry legislation as a substitute for, or supplemental to, an investigation under either the company legislation or the revenue legislation would be ultra vires.

The scope of the proposed examination is also excessive insofar as it is intended to require our clients to disclose what is described as a 'schedule of all assets' held at certain dates. Such a requirement represents a disproportionate interference with our clients constitutional rights (in particular, the right to privacy, and the right against self-incrimination). It is submitted that a Tribunal of Inquiry has no power, as a matter of law, to impose such a requirement. Further, or in the alternative, it is submitted that the Sole Member's terms of reference do not permit the imposition of such a requirement.

Without prejudice to the foregoing, in the event that the Sole Member intends to permit examination of the type objected to above, our clients will be applying to have the evidence heard otherwise than in public. We cannot accept the suggestion contained in the ultimate paragraph of the letter under reply that it is necessary for the Tribunal of Inquiry to pursue its proposed investigations in public. Our clients will also be seeking an undertaking that the evidence will not be produced to either the revenue authorities or to the regulatory authorities under the company legislation. In this connection, please confirm whether or not your office has been in contact with either, the revenue authorities or to the regulatory authorities under the company legislation.

Finally, in connection with the request that our clients provide documentation to the Tribunal' of Inquiry, we repeat our statement (set out in our letter of 24 January 2000) that for reasons arising from the limited nature of privileges afforded under the Tribunals of Inquiry (Evidence) Acts, our clients are not in a position to provide documentation to the Tribunal of Inquiry other than pursuant to a formal order made pursuant to the procedures laid down by the Supreme Court in Bailey v Mr Justice Flood 28 July, 1998. You might note, however that certain of the documentation requested has already been furnished pursuant to earlier orders for example the relevant contract documentation in respect of the Donabate lands has been discovered and produced.

Without prejudice to any more specific submissions which our clients might wish to make in respect of any proposed orders for discovery or production, it is oppressive to request our clients to produce a volume of documentation at less than a week's notice. Certain categories of documents were sought for the first time by letter dated 20 January, 2000. The Tribunal of Inquiry has been conducting public hearings for in excess of a year now and it is difficult to understand the urgency with which documentation is now sought.' It is not unreasonable to expect that our clients would be afforded a realistic amount of time to collate such documentation.

Yours faithfully,

TK Smith

Smith Foy & Partners

Ms MA Howard

Solicitor to the Tribunal of Inquiry into

Certain Planning Matters and Payments, --

State Apartments,

Upper Castle Yard,

Dublin Castle

Dublin 2

By hand"

Ms Howard replied on the 28 January, 2000.

"28 January 2000

Strictly Private & Confidential -- Addressee Only

Kevin Smith Esq

Smith Foy & Partners

Solicitors

59 Fitzwilliam Square

Dublin 2

Re: Your Clients: Balley/Bovale Developments Limited

Dear Sir,

I acknowledge receipt of your letter of the 27th inst. Insofar as your contentions are based on the premise that examination of your clients in relation to their financial affairs is based solely upon the relevance of the issue of payments to James Gogarty, I refer you to my earlier correspondence which states the actual basis upon which such questioning may be relevant. Your objections to such evidence being led are noted

The fact that your client's financial records may be of interest to the Revenue authorities -- or to regulatory authorities under the Companies Act legislation is incidental to the purposes for which your clients are being examined. 'As you have already been informed information provided to the Tribunal is provided on a confidential basis and is not circulated to any party by the Tribunal unless the Sole Member determines that it is appropriate to circulate such information to affected parties prior to evidence -being adduced at a public hearing which might affect them. Neither the Revenue authorities nor any regulatory authority under the Companies Act has representation before this Tribunal and no circulation of documentation to those parties has taken place.

The scope of the proposed examination has been dictated by your client's failure to voluntarily provide the information sought by the Tribunal to date, had they done so it might have been possible to narrow or indeed eliminate certain areas of their financial dealings from, public examination.. On the basis of the information obtained by the Tribunal to date it is necessary to pursue the line of questioning set out in our correspondence. In the event that your client had furnished details of their actual expenditure during the relevant periods it would have been possible to identify and quantify the amounts available to them from which the alleged payments could have been funded, the absence of such information obliges the Tribunal to inquire into your client's expenditure and any consequential intrusion into your client's privacy is constitutionally permissible.

The contention that the Tribunal has acted oppressively in seeking the documentation set out in my letter of 20 January 2000 is rejected The documents which your clients are requested to have available are described in sufficient detail to allow for them to be identified and the Tribunal is not aware of any basis upon which it is suggested that the volume of documentation is significant.

Yours faithfully,

Maire Anne Howard

Solicitor"

The final episode in this series of correspondence consists of a letter from Mr Smith to Ms Howard dated the 31 January, 2000. In it Mr Smith denied that an examination of financial transactions conducted after June, 1989, the time of the Burke payment, could be relevant to that payment. He reiterated his objection to pursuing the hare of the Gogarty payment, which he said was collateral and went to credibility only. Mr Smith informed Ms Howard that an application would be made to have any evidence heard otherwise than in public.

In his affidavit, Mr Thomas Bailey elucidates on his objection to the course of action being proposed by the Sole Member. He states:

"41. As appears from the correspondence, in the absence of a written statement from me or my wife (the second named applicant), the Tribunal intended to require oral evidence on these matters at a public hearing of the Tribunal.

42. I say and believe that we could be greatly prejudiced by any such public ventilation of our personal financial affairs.

43. The proposed examination, if conducted in public, would expose our intimate and personal financial transactions to public scrutiny. The information sought, (in particular in connection with the schedule of assets) would involve stripping bare our private affairs in public.

44. In the circumstances, I instructed my solicitor to make a formal objection to the proposed course of examination. Submissions were duly made on behalf of myself and my wife at a public hearing of the Tribunal on the 7 February, 2000 and the 8 February, 2000 . . ."

Mr Colm Allen, SC, made the submissions to which Mr Bailey refers. It does not seem to me to be necessary to set them out, since they were much the same as the submissions that have been very ably made to this Court by Mr Gordon, SC and Mr Hugh O'Neill, SC. In his response to Mr Allen's submissions, Mr Desmond O'Neill, SC, counsel for the Tribunal, stated on the 7 February, 2000 (day 136 at page 82), in a passage of which much has been made by the applicants:

"I say that the trawl which is being made of the private affairs of these individuals is no greater than in merited by the extent of the inquiry and the purpose for which the inquiry is being conducted. It is in no sense Sior, a roving commission as it is suggested in this submission. It is a specific and directed inquiry into financial affairs. It has of course, an element of uncertainty about it because the Tribunal does not know what the end result will be, but must inquire into it."

In his affidavit Mr Thomas Bailey states at paragraph 46 that this submission bears out his concern that the Tribunal wishes to engage in a trawl through his and his wife's financial affairs without establishing any proper evidential basis.

The Sole Member delivered his formal ruling on the 8 January, 2000 (day 137). He said:

"I have carefully considered the submissions of counsel on the issues raised by Mr Allen.

I am satisfied that an inquiry into the personal bank accounts and financial dealings of Tom Bailey and Caroline Bailey falls within the Terms of Reference of this Tribunal and in particular clause 4(a) thereof.

My inquiries to date establish that the financial affairs of Bovale Developments Limited, of Michael Bailey, of Tom Bailey and of Caroline Bailey are so intermeshed that an investigation into a possible payment by Michael Bailey on behalf of Bovale Developments Limited must necessarily extend to cover not only the accounts of the company itself but also the personal accounts and financial dealings of the directors and their wives.

The evidence adduced before the Tribunal to date suggests that some company funds passed to the individual directors for their own purposes and do not appear to have been properly accounted for in the company's accounts. Equally the examination of bank accounts furnished to the Tribunal by Bank of Ireland since Mrs Bailey last appeared before the Tribunal suggests that monies from accounts held in the name of Caroline Bailey were expended for the purposes of the company.

I believe that the inquiry into the topics outlined in the Tribunal's letter of the 20 January, 2000 is relevant to the Gogarty allegations and to issues raised in this module of evidence."

The Sole Member then summarised Mr Gogarty's allegations in respect of both the Burke payment and the Gogarty payment and drew attention to the counter-allegations made by Messrs Bailey and Bailey in relation to the finder's fee. He noted that an examination of the financial affairs of Mr Gogarty had not revealed any inconsistency in the evidence given by him to the Tribunal and continued:

"The intended examination of the witnesses [Mr Thomas Bailey and Mrs Caroline Bailey] would seek to establish further details in relation to such accounts and transactions with a view to establishing whether there is -- any -- evidence of such payments having been made or alternatively and with a view to establishing that such payments could not in fact have been made. A consideration of the bank accounts of these individuals is therefore necessary. The scope of the inquiries which would be made must cover the time periods in which it is alleged such payments were made and the financial year accounts in respect of which it might be expected that such payments would be accounted for."

The Sole Member then explained why he considered it necessary to proceed to hear this evidence in public. He referred to the judgment of Hamilton CJ in Lawlor v Mr Justice Flood (Unreported, Supreme Court, 8 October, 1999) [FL 1856] where it was said (at pages 44-45) that "when it comes to the formal exercise by the tribunal of its powers to examine witnesses this must be done by the Tribunal itself and, except as provided by law, must be done in public". He then continued:

"It has been urged upon me that in view of the private nature of the proposed inquiry touching as it does upon the expenditure of money and acquisition of assets by the parties that such inquiries should be conducted in private. The Tribunal of Inquiries Evidence Act specifically provides for the evidence to be heard in public unless it is expedient to the public interest that I sit in private. I do not believe that there are sufficient grounds open to me to conduct the intended examination of the witnesses in private in the public interest and accordingly I believe that the examination of the witnesses should proceed."

Judicial review proceedings

It is against this ruling of the Sole Member that the present judicial review proceedings are directed. As I have already mentioned, on the 10 February, 2000, Carney J gave leave to apply for various reliefs by way of judicial review. Those reliefs are set out in the statement required to ground the application under the heading "(d) Relief sought":

"(i) An order of certiorari by way of application for judicial review quashing the decision of the respondent dated the 8 February, 2000 refusing to make an order pursuant to section 2 of the Tribunal of Inquiries (Evidence) Act, 1921 to hear evidence of the applicants' personal financial affairs otherwise than in public;

(ii) Further or in the alternative, a declaration by way of application for judicial review that the hearing of evidence of the applicants' personal financial affairs in public represents a disproportionate interference with their constitutional rights having regard to the nature of the evidence and the limited relevance (if any) of same to the terms of reference;

(iii) A declaration that the respondent does not have jurisdiction to require the disclosure of a schedule of assets whether by way of oral evidence or otherwise at all;

(iv) An order of certiorari by way of application for judicial review quashing the decision of the Respondent dated the 8 February, 2000 permitting examination of the applicants in relation to their personal financial affairs;

(v) A declaration by way of application for judicial review that evidence of the applicants' personal financial affairs is not relevant to the respondent's terms of reference;

(vi) Further or in the alternative, a declaration by way of application for judicial review that evidence of the payment of a finder's fee to Mr James Gogarty is not relevant to the respondent's terms of reference."

The applicants also sought certain ancillary relief and a stay pursuant to Order 84 rule 20(7)(a) of the Rules of the Superior Courts, 1986, restraining the Sole Member from proceeding to hear any further evidence from the applicants pending the determination of these proceedings. Discovery was also sought but this has been abandoned. Carney J granted leave to apply for all the reliefs outlined above and also granted the stay. On the 17 February, 2000, the Sole Member in his statement of grounds of opposition joins issue with the applicants. He states:

"1. The respondent acted intra vires, in directing his ruling of the 8 February, 2000 that evidence relating to the financial affairs of the applicants be heard in public.

2. The respondent is required to inquire urgently into and report to the Clark [sic] of the Dail and make such findings and recommendations as he sees fit in relation to the matters of urgent public importance set forth in the Terms of Reference including the matters set out at paragraph 4(a) and the admitted and alleged payments to Mr Raphael P Burke.

3. On or about the 20 October, 1998 the respondent formed the opinion that it was in the public interest to proceed to a full public hearing to hear all evidence relating to and arising from the sworn statement of Mr Gogarty.

4. A Tribunal of Inquiry established pursuant to the Tribunal of Inquiry (Evidence) Acts, 1921-1998 may devise its own model of practice and procedure in relation to its inquiry work.

5. A Tribunal of Inquiry established pursuant to the Tribunal of Inquiry (Evidence) Acts, 1921-1998 is not required to adopt the lis inter partes procedures in the public hearings of the Tribunal.

6. The respondent made the ruling of the 8 February, 2000, after consideration of the Terms of Reference of the Tribunal, having heard legal submissions on behalf of the applicants and by counsel to the Tribunal and having decided that it was necessary to hear further evidence in public from Thomas and Caroline Bailey for the purpose of its functions. In making the said ruling the respondent did not infringe any legal or constitutional right of the applicants either -- by not giving prior notice of his intention to make the said ruling or by not specifying the reasons for making the said ruling or otherwise."

Some ancillary issues

At this point, having devoted some considerable time to describing the history of these proceedings, I think it appropriate to attempt to outline the issues between the parties. Before dealing with what I consider to be the main aspects of this application, however, I would like to clear the ground by addressing some other less important points that were raised in argument.

(a) Celtic Helicopters

The first such issue concerns the request in the letter of the 20 January, 2000 for information relating to Celtic Helicopters Ltd. Ms Howard in her affidavit avers at paragraph 72 that the Tribunal established the existence of five cheques for £5,000 each payable to Celtic Helicopters Ltd in the audited accounts of Bovale and has sought to clarify the purpose for which this expenditure was incurred. She goes on to say that "(no) decision had been taken to raise this matter in public until such time as the Sole Member had determined that such payment may be relevant to his inquiry". Contrary to what is submitted by the applicants, I do not take the view that this vitiates the decision of the Sole Member to proceed to hear the evidence of the applicants and accept the submission of Mr Clarke, SC, counsel for the Sole Member, that it would be premature for the Court to review the Celtic Helicopters issue as it is in reality one in respect of which a decision has yet to be taken. Should the Sole Member decide at some future date to inquire into the matter it would then be open to the applicants to invoke the supervisory jurisdiction of this Court in that regard.

(b) Statutory protection

The point was constantly made by the applicants in the course of their correspondence with the Tribunal that they were unable, in the light of the decision of the Supreme Court in Lawlor v Mr Justice Flood (Unreported, Supreme Court, 8 October, 1999) [FL 1856], voluntarily to provide the information being sought, on the ground that were they to do so they would not enjoy the benefit of the protection afforded by the Tribunals of Inquiry (Evidence) Act, 1921 as amended and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979. Under section 1(3) of the Act of 1921 "A witness before any such tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court or the Court of Session". Section 1(4), as amended by section 2 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997, states that "A person who produces or sends a document to any such tribunal pursuant to an order of that tribunal shall be entitled to the same immunities and privileges as if he were a witness before the High Court". And under section 5 of the Act of 1979 "A statement or admission made by a person before a tribunal or when being examined in pursuance of a commission or request issued under subsection (1) of section 1 of the [Act of 1921] shall not be admissible as evidence against that person in any criminal proceedings (other than proceedings in relation to an offence under subsection (2)(c) . . . of that section) and subsection (3) of that section shall be construed and have effect accordingly".

I consider it to be clear beyond argument that in giving the evidence requested of them before the Tribunal, the applicants will be entitled to rely on the Protection afforded by these provisions. The applicants were of course entitled to stand on their rights and to refuse to volunteer any statements or documentation to the Tribunal as requested, and no criticism may be made of them for choosing this course of action. It may be that the matter could have been handled with something approaching the discretion that they now seek, but they made their decision and have stood over it. However, I do not think that it is now open to the applicants to argue that they can invoke the privilege against self-incrimination in order to prevent the Tribunal from hearing the evidence in question. Even if it were to reveal some facts that might point to a criminal offence having been committed, I am satisfied that the protection offered by the provisions I have just mentioned is sufficient to obviate any threatened infringement of the privilege.

(c) Preliminary inquiry

It was submitted by the applicants that, under the Terms of Reference, the Sole Member would be entitled to take the evidence of the applicants by way of preliminary investigation before proceeding to a public hearing in connection with that evidence. The Court was directed to clause B.(i) of the Terms of Reference, whereby the Tribunal is enjoined:

"To carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts, in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters".

It was said on behalf of the applicants that this clause gave authority to the Tribunal to scrutinise privately the evidence to be provided by the applicants before deciding whether or not to go public with it, in order to sort the wheat from the chaff. I must say that I cannot agree with this interpretation of clause B.(i). It is my view that this provision is directed to preliminary investigations to be conducted before any public sitting is held. By its reference to investigations the purpose of which is "to determine whether sufficient evidence exists in relation to any of the matters referred to above", I do not consider that the provision is stating that such an investigation may be conducted in respect of every such matter, at the discretion of the Sole Member. On the contrary, I think it clear that if the Sole Member, on a preliminary investigation, found sufficient evidence in relation to even one issue, then he should proceed to public sittings. The clause is directed towards nipping a tribunal in the bud, should it be determined that there is absolutely no evidence to support any of its inquiries. Presumably, the purpose is to prevent the needless expenditure of public monies that would accompany public sittings of a tribunal that has nothing into which to inquire. This interpretation is strengthened when one considers clause B.(iv) which states:

"In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a fully public inquiry, to report that fact to the Clerk of the Dail and to report in such a manner as the Tribunal thinks appropriate on the steps taken by the Tribunal to determine what evidence, if any, existed and the Clerk of the Dail shall thereupon communicate the Tribunal's report in full to the Dail".

It is little short of absurd to contend that the Sole Member, every time he heard in private evidence that he did not consider sufficiently germane to the Tribunal's work to ventilate in public, would then be obliged to report to the Clerk of the Dail on the matter. These provisions in the Terms of Reference are clearly directed to a preliminary investigation before any public sitting 'has taken place, and to explaining to the Dail, should the Tribunal never proceed to such a sitting, why this decision was taken. If the evidence at issue in these proceedings is to be given in private, the justification for such a course of action must be found in the governing legislation.

The main issues

The primary submission of the applicants is that the proposed examination of the applicants is not relevant to the work of the Tribunal under the Terms of Reference. In the alternative, Mr O'Neill submits that, even if relevant, having regard to the applicants' right to privacy, the evidence is so tangentially relevant that it ought not to be admitted. Again in the alternative, he submits that even if the evidence may be admitted, having regard to the potential prejudice to the applicants and to the limited value of the evidence, it ought to be heard in private rather than in public.

There are, in my view, three separate but related issues. The first is whether or not the evidence it is proposed to admit is relevant. This is a threshold issue, for if the evidence is not relevant to the Terms of Reference then the Sole Member has no discretion to admit it at all, whether in public or in private. The second is whether or not the Sole Member has the power to take this evidence in private, should he be minded to do so. Thirdly, if it is accepted that the threshold is crossed and that the evidence has at least some measure of relevance, that does not determine the manner in which it should be heard, or indeed even if it ought to be heard at all. It is here that the question of proportionality, which was addressed by both parties, becomes important. What is involved is a balancing exercise between the rights of the applicants on the one hand and the public interest in the public administration of the Tribunal on the other. I propose to take these three issues in turn, but before I do so it is important to decide according to what standard the decisions of the Sole Member are to be measured.

(a) The test

Of the three issues I have outlined as central to this application, it is clear that only one, the second, is a pure matter of law. The question of whether or not the Sole Member is entitled to hold private hearings depends on the construction of the governing legislation. The other two questions, whether or not the evidence is relevant and whether or not the Sole Member was correct in his decision to hear that evidence in public, are first and foremost questions for the Sole Member himself. The only basis upon which these decisions of the Sole Member are challenged is that they are unreasonable, having regard to the context in which they were made. It is important, therefore, to determine the standard according to which the Court should exercise its review jurisdiction.

Supreme Court pronouncements, which of course bind this Court, have laid down the principle that the decision of a body subject to judicial review should be interfered with on the ground of reasonableness alone, only when it "plainly and unambiguously flies in the face of fundamental reason and common sense". So held Henchy J in The State (Keegan) v Stardust Victims' Compensation Tribunal [1986] IR 642 at page 658. In The State (O'Keeffe) v An Bord Pleanala [1993] 1 IR 39 at page 71 Finlay CJ said:

"The Court cannot intervene with the decision of an administrative decision making authority merely on the grounds that (a) it is satisfied that on the facts as found it would have raised different inferences and conclusions, or (b) it is' satisfied that the case against the decision made by the authority was much stronger than the case for it."

The Court must generally ask itself whether or not the impugned decision is so unreasonable that no reasonable decision-maker could ever have arrived at it. But in this case the applicants contend and the respondent agrees that another standard of review should apply. The Court was referred to R v Lord Saville ex parte A [1999] 4 All ER 860, where the Court of Appeal in England considered an application for judicial review brought by seventeen military witnesses to a tribunal investigating the "Bloody Sunday" killings in Deny, in respect of a decision of the tribunal not to allow the witnesses to give evidence anonymously. Essentially, the argument was that by revealing the identities of these witnesses the tribunal would be placing their lives or at least' their safety in jeopardy. Lord Woolf MR, who delivered the judgment of the Court of Appeal, said that:

"What is important to note is that when a fundamental right such as the right to life is engaged, the options available to the reasonable decision-maker are curtailed. They are curtailed because it is unreasonable to reach a decision which contravenes or could contravene human rights unless there are sufficiently significant countervailing considerations. In other words, it is not open to the decision-maker to risk interfering with fundamental rights in the absence of compelling justification. Even the broadest discretion is constrained by the need for there to be countervailing circumstances justifying interference with human rights. The courts will anxiously scrutinise the strength of the countervailing circumstances and the degree of the interference with the human right and then apply the test accepted by Bingham MR in Ex parte Smith which is not in issue."

The test in R v Ministry of Defence, ex parte Smith [1996] QB 517 was based on the submissions of counsel, which were in these terms (at page 554):

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied . . . that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

The Parties have proposed and I am prepared to accept this as the correct statement of the test that the Court ought to apply when reviewing a decision that impinges on constitutionally guaranteed rights. However, it must at all times be borne in mind that the jurisdiction of this Court is limited to the review of the decision. The fact that the constitutional rights of a person affected by the decision are implicated is not a licence for the Court to stand in the shoes of the decision-maker and to speculate as to whether or not it would have come to the same conclusion. The function of the High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal, not whether or not it was correct. The freedom to exercise a discretion necessarily entails the freedom to get it wrong; this does not make the decision unlawful. Consideration of the alternative position can only confirm this view. The effective administration of a tribunal of inquiry would be impossible if it were compelled at every turn to justify its actions to the High Court. The legislature has entrusted a broad measure of discretion to such tribunals, including the discretion to decide how the inquiry will proceed and what evidence will be admitted, and it is no part of the duty of this Court to whittle down that discretion, with the inevitable deleterious effects that would have on the effective discharge of the important public tasks with which tribunals of inquiry are burdened. No case has been made out to satisfy me that the Sole Member, in determining this issue in accordance with the appropriate test, failed to come to an improper decision in the sense envisaged by Finlay CJ in the State O'Keeffe v An Bord Pleanala.

1(b) Relevance

I have described this as a threshold issue because in fact the same or a very similar issue arises when considering the proportionality question. The question the Court must ask itself is whether or not the Sole Member could reasonably have arrived at the view that the evidence requested of the applicants is or could be relevant to the Terms of Reference, and particularly to the Gogarty module. It was strenuously contended by Mr O'Neill, for the applicants, that the evidence being sought was not relevant.

While Mr O'Neill argued that an examination of the accounts of the applicants after June, 1989 could have no possible relevance to the Burke payment. It is clear that the Sole Member took the view, legitimately, it seems to me, that the financial affairs of each of the applicants and of Mr Michael Bailey were so intermeshed as to be inseparable, one from the other. The mere fact that the Burke payment was alleged to have been made in June, 1989 does not mean that traces of it could only be found in accounts prior to that date. If such a payment was made out of funds personally available to Mr Thomas Bailey, Mr Michael Bailey or Mrs Caroline Bailey, it might have been thought necessary to reimburse that outlay from company funds. There is every possibility that tracks might have been covered in accounts relating to dates after the alleged payment. At any event, it seems to me to be impossible to contend that it was unreasonable of the Sole Member to take this view.

Mr O'Neill also says that, insofar as the evidence is relevant to the Gogarty payment, this is a collateral issue that is not directly relevant to the terms of reference and goes only to credit. Payments to Mr Gogarty are not themselves within the Terms of Reference since' he is not a public official within the meaning of clause A.4(a). However, there is a direct conflict of evidence between Mr Michael Bailey and Mr Gogarty in relation not only to the Gogarty payment but also the Burke payment. In this situation the credibility of the two witnesses is of the utmost importance, bearing as it does on a matter at the heart of the Tribunal's Terms of Reference. The Sole Member has already taken the view that the financial affairs of Mr Michael Bailey cannot be disassociated from the affairs of the applicants, and in these circumstances it is' imperative that the Tribunal pursue its proposed inquiry. This inquiry may perhaps show that Mr Gogarty has been lying and if so found by the Sole Member this fact would have a significant bearing on the fundamental question at the centre of this Inquiry. I cannot accept Mr O'Neill's submission that in pursuing this line of enquiry the proceedings of the Tribunal are adversarial in nature, with the effect that it is up to the parties and to the parties alone to decide what evidence they wish to call. The proceedings of a tribunal of inquiry are inquisitorial and in seeking the evidence at issue the Sole Member is inquiring into a matter that may be crucially important, albeit only indirectly, to one of the central disputes before the Tribunal. For this reason I do not find the decision in George Ballantine & Son Ltd v FER Dixon & Son Ltd [1974] 1 WLR 1125, referred to by the applicants, of assistance, it is my view that the Sole Member would likely be subject to justifiable criticism if he were not to, attempt to pursue this line of inquiry. The Court therefore rejects the contention that the evidence being sought by the Sole Member is not relevant. In my view, for the reasons stated, the submission of the Applicants that the evidence is not relevant, fails.

(c) Private/public hearing

I have already stated that, alone among the three main issues to be considered by the Court, this one involves a 'question of law. It is useful to turn first to the relevant section of the Tribunals of Inquiry (Evidence) Act, 1921. Section 2 states, inter alia:

"A tribunal to which this Act is so applied as aforesaid:-

(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given . . ."

It is readily apparent that if the public is to be excluded from any of the proceedings of the Tribunal, there must be a public interest related to either the subject matter of the inquiry or the nature of the evidence to be given. In these proceedings it is urged by Mr O'Neill that there is just such a public interest involved. He says that this is a case in which the applicants' right to privacy is clearly implicated. There is no real issue as between the parties on this score and I am fully prepared to accept, on the basis of the decisions of this Court in Kennedy v Ireland [1987] IR 587 and of the Supreme Court in Redmond v Mr Justice Flood [1999] 1 ILRM 241 at page 249 that an inquiry into the private banking and financial affairs of the applicants has the potential adversely to affect their vested constitutional right to privacy. Mr O'Neill goes on to submit that the protection of constitutional rights can legitimately be said to be in the public interest and that on this basis there is a strong public interest pulling in favour of excluding the public from the proceedings at which the evidence of the applicants is admitted. Although I must confess to some difficulties with this transformation of an individual right into a public interest, since the matter did not seem to me to be pressed particularly strongly by Mr Clarke I am prepared to accept, without deciding, that the protection of constitutional rights can constitute a public interest that might justify the exclusion of the public from the proceedings of a tribunal of inquiry. I think, however, that this process cannot add to the strength of the applicants' case, since what is now ranged against the public interests in favour of having the public present at tribunal proceedings is not anything with the immediacy of an individual right but rather a more diffuse interest in the upholding of rights generally.

(d) Proportionality

Having held that the Court is not entitled to interfere with the determination of the Sole Member that the evidence in question is relevant to the inquiry of the Tribunal, and having also accepted that the Sole Member may, in certain circumstances, be entitled to hear evidence in private, I now come to the proportionality issue. As I have already mentioned, the mere fact that evidence is sufficiently relevant to justify its admission does not determine the manner in which it should be heard. However, I again emphasise the fact that the Court is engaged in a review procedure and that the test outlined above will therefore apply.

It seems to me that there are three possible conclusions that the Court might reach on this issue. They lie on a spectrum from, at one extreme, exclusion of the evidence, to public admission of the evidence at the other. In between, there is the possibility that the evidence could be admitted at private proceedings. If I may take the first of these, exclusion, the argument must be that, notwithstanding that the evidence is of sufficient (minimal) relevance to justify its admission, the injury to the rights of the applicants, or the public interest in upholding those rights, is so grave that the evidence ought nevertheless to be excluded. This would be somewhat akin to the exercise of a trial judge in a criminal trial exercising his discretion to exclude relevant evidence because its prejudicial effect exceeds its probative value. I am satisfied that it would not be appropriate for this Court to interfere with the decision of the Sole Member to admit the evidence of the applicants; It is plainly not unreasonable for him to do so, although this does not determine whether or not the evidence should be heard in public. I note that Mr O'Neill frankly conceded that a private hearing would allay most of the concerns of the applicants. If the applicants are to be successful on this issue, therefore, the Court must hold that it was unreasonable of the Sole Member to decide to admit the evidence in public in circumstances where he might have chosen to do so in private.

The applicants have sought to set what they consider to be the great weight to be accorded to the infringement of their rights against the small relevance of the evidence to the Terms of Reference and the fact that the Tribunal could, they say, operate just as effectively if it were to elect to take the evidence in private first.

The applicants correctly say that the right to privacy is a fundamental constitutional right. However, as Mr Clarke points out, any inquiry of a tribunal into the affairs of a person is likely to infringe upon his or her personal rights. To accord the weight contended for to the right to privacy, or more precisely in this context, the public interest in upholding the right to privacy, would have the effect of hamstringing this and all future tribunals of inquiry.

To this the applicants say, not so, for it is only in this sort of case, where the interests opposed to the right to privacy are weak that the right to privacy will triumph. However, it seems to me that the applicants have grossly underestimated the weight to be accorded to these interests. The applicants essentially contend that the possible relevance of the evidence sought ought to be discounted by the low probability that it exists at all. It is pressed strongly that the evidence it is proposed to take from the applicants is not of any definite value to the Tribunal. They say that this was acknowledged by Mr Desmond O'Neill in his reply to the submissions to the Sole Member of Mr Allen, when he described the process as a "trawl". They refer to the judgment of Geoghegan J, in Murphy v Mr Justice Flood (Unreported, High Court, 30 April, 1999), which was endorsed by the Supreme Court on appeal (Unreported, Supreme Court, 26 January, 200). That was an application for leave to apply for judicial review of a decision of the Sole Member to admit publicly the contents of an affidavit of a deceased person that contained certain grave allegations, against the applicant, which application was refused by the learned judge. However he commented that he might have taken a different view had the Sole Member not already read the affidavit so that he was aware of its contents. It is sufficient to note that the comments of Geoghegan J, were, of course, obiter, and were in any event made in the context of a leave application, in which, all that the applicant need show is a stateable case. Moreover, the relevance of the allegations contained in the affidavit at issue in that case went only to explaining the context in which the applicant took certain actions. I have already expressed my opinion that the evidence it is sought to lead in this case may be of central, indeed possibly determinative, importance to the Sole Member's inquiries in the Gogarty module. I therefore take the view that, even discounting the value of the evidence by reference to the possibility that a blank will be drawn, the weight to be attached to it remains significant.

It is clear that it is of fundamental importance that, where possible, the proceedings of a tribunal of inquiry should be conducted in public. The very reason for the establishment of such a tribunal is that urgent matters causing grave public disquiet need to be investigated in order either to root out the wrongdoing or to expose the concerns as misplaced. If a tribunal is to accomplish its purpose on either count it is profoundly important that it be seen to conduct a thorough, methodical inquiry in which no special treatment is accorded to anyone and where matters are shielded from public scrutiny and criticism only where absolutely necessary, such as where to do otherwise would jeopardise the lives of individuals. The public concern and disquiet must be met either by establishing facts which give rise to the concern or disquiet or alternatively establish that the fears or cause for concern and disquiet were groundless.

In my view no case has been made out by the Applicants to justify the grant of any of the reliefs sought and accordingly I refuse the Applicant's claim.