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Flood v. Lawlor [2000] IEHC 198 (24th October, 2000)

THE HIGH COURT

2000 553 SP

MR. JUSTICE FEARGUS FLOOD, SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

APPLICANT

AND

MR. LIAM LAWLOR

RESPONDENT

JUDGMENT OF MR. JUSTICE SMYTH DELIVERED ON 24th October, 2000.

In this matter, the Plaintiff seeks the following relief pursuant to Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997. Paragraph 6 of the Endorsement of Claim is to the following effect:

“The Plaintiff seeks the following relief pursuant to Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997:-

(i) An Order compelling the Defendant herein to comply with the Order of the Plaintiff made on the 8th June 2000, whereby the Defendant was ordered to make Discovery on Oath of and produce to the plaintiff or before 23rd June 2000 the documents and records referred to in paragraphs (a), (b) and (a) of the said Order.

(ii) if necessary, an Order specifying a new date by which the Defendant must make Discovery on Oath of and produce to the Plaintiff the documents and records referred to at paragraphs (a), (b) and (c) of the said Order of 8th June 2000.

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(iii) An Order compelling the Defendant to attend before the Plaintiff (as Sole Member of the Tribunal Inquiry into Certain Planning Matters and Payments at the Printworks Building, Lower Castle Yard, Dublin Castle, Dublin 2) on such date and at such time as this Honourable Court may direct and commanding the Defendant to have with him and there and then produce and hand over to the Tribunal the documents and records mentioned at paragraphs (a), and (c) of the Order of the Tribunal dated 8th June 2000 served upon the Defendant.

(iv) An Order compelling the Defendant to attend before the Sole Member of the said Tribunal at the aforesaid place and on a date and at a time to be fixed by this Honourable Court and then give evidence to the Tribunal in relation to the documents and records mentioned in paragraphs (a), (b) and (c) of the Order of the Tribunal dated 8th June 2000.” And certain other reliefs.

Background:

In Judicial Review proceedings between the parties hereto, the Defendant herein being the Applicant therein (hereinafter referred to as Mr. Lawlor) and the plaintiff herein being the Respondent therein (hereinafter referred to as the Sole Member), Kearns J by judgment delivered on 2nd July 1999 determined that an Order dated 26th April 1999 (made

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by the Sole Member) directing Mr. Lawlor to make discovery and produce to a solicitor acting for the Tribunal certain documents, should stand good. An appeal was taken to the Supreme Court by the Sole Member on certain grounds but neither party, and more particularly Mr. Lawlor, did not appeal against the refusal of Kearns J. to strike down the Order directing Discovery referred to by Kearns J. at page 49 of his judgment as “the second Order” of the Sole Member, and which in the judgment of Hamilton C.J. at page 11 of his judgement handed down on 8th October 1999 refers to thus:

“The learned Trial Judge refused the reliefs sought in respect of the third Order and there is no appeal from such refusal.”

1. As is clear from the judgment of the Chief Justice at pages 4 and 5, what he refers to as the third Order is what Kearns J. refers to as the second Order.

2. Notwithstanding the unappealed judgement, insofar as Mr. Lawlor was concerned, having been delivered on 2nd July 1999, it was apparently some three months before the Sole Member received a “statement” of discovery from Mr. Lawlor on 7th October 1999 (a fact recorded in a letter dated 19th May 2000 addressed to Mr. Lawlor’s solicitor from the solicitor to the Tribunal.) There is a clear

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distinction drawn by Kearns J. in his judgment between an Affidavit as to facts (at page 71 of his judgment) and an Affidavit of Discovery. The Order of Kearns J. has not been put before the Court, but in general it can be safely stated that when the Court is moved directly or indirectly on appeal from Master (and by analogy on a reference from a Tribunal) to confirm, compel or direct a person to make Discovery, it does so within the terms of the Rules of the Superior Courts (S.I. No.15 of 1986) as amended by substitution or insertion by No. 223 of 1999 and in particular O.31 R.12 and 13 and having Form No. 10 Appendix C of the Rules in mind.

3. In or about the 19th May 2000, the Tribunal’s solicitor had reason to write two letters dealing with:

(1) The Tribunal’s request for a voluntary statement.

(2) Accounts in banks and other financial institutions.

4. Both letters are lengthy and set out in considerable detail the matters of concern to the Tribunal. The letters make it quite clear what it is that is required of Mr. Lawlor. Equally, it is clear that the Tribunal would wish to receive the information

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in respect of (1) above on a voluntary basis and seeks a response by 2nd June 2000. In regard to the topic “Accounts in banks and other financial institutions”, the Tribunal indicates deficiencies in the documentation already furnished by Mr. Lawlor and notes specifically:

“Despite having been repeatedly requested to do so, your client refused to provide a sworn Affidavit of Discovery in the conventional form to the Tribunal. In documents which have been discovered to the Tribunal, your client has stated that he availed of a tax amnesty. In view of the matters into which the Tribunal is enquiring involving your client (which are set out in my other letter to you of even date with the heading: “Liam Lawlor T.D. - Tribunal request for a Voluntary Statement.”), it appears to the Sole Member of the Tribunal that it is appropriate that he be informed of the source or sources of the funds in respect of which such amnesty was claimed and the identity of the account or accounts in which they were held.”

5. I am quite satisfied that Mr. Lawlor and his solicitors were well aware of what was required, for it appears from the transcript of the Tribunal hearing on 10th October 2000 at page 21, lines 16 to 23, from Exhibit G of the Affidavit of Ms. Howard sworn on 16th October 2000 that Mr. Lawlor’s solicitors wrote on 20th September 1999 stating that it would not be possible to have “an Affidavit of Discovery” prior to 1st October and asking for an extension to 6th October 1999.

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6. The letter of the 19th May 2000 then details some six matters that the Tribunal wish Mr. Lawlor to attend to. To facilitate Mr. Lawlor in progressing the matter, the Tribunal enclosed appropriate letters of authority. It then proceeded:

“In the event that Mr. Lawlor is not in a position to provide such information and to provide such authority to the Tribunal, the Sole Member has asked me to inform you that he will on 29th day of May 2000 consider whether or not it is necessary for the purposes of his functions to make the following orders:”

7. There then follow four headings under which orders might be made. In the event, orders came to be made at a later date, i.e. 8th June 2000, under three such headings. The letter concluded by stating that if Mr. Lawlor wished to make any representations concerning the proposed orders to do so in writing before 24th May 2000. On 24th May 2000, Mr. Lawlor’s solicitors wrote: “Re our client: Mr. Liam Lawlor and Mrs. Hazel Lawlor. Your client: The Member of the Tribunal of Inquiry into Certain Planning Matters”, seeking an extension of time within which to make representations to the 2nd June 2000, on which day Mr. Lawlor’s solicitors wrote

“Re our client: Mr. Liam Lawlor T.D. Your client: The Sole Member of Tribunal of Inquiry into Certain Planning Matters and Payments.”

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8. A considerable part of the letter is taken up with an argument that the Tribunal is limited in its enquiries (and it is still at an investigative stage so far as Mr. Lawlor is concerned) to such matters as arise or arose since his entry into public office and so having “public duties.” Mr. Rogers for Mr. Lawlor very properly concedes that this is a bad point as several persons who have already appeared before the Tribunal have not held public office or had any public duties. The core of the submission in the letter is in the following passage:

“....it is respectfully submitted that any accounts which may have been held by Mr. Lawlor in his private or business capacity unrelated to “any acts associated with the planning process” or the performance of his “public duties” are not within the jurisdiction of the Tribunal as set out at Paragraph A5 of the Amended Terms of Reference of the Tribunal of Inquiry into Certain Planning Matters and Payments.

This respectful submission is made with regard to all or any matters including, but not limited, to any accounts either within or without the State and also with regard to any tax amnesty of which Mr. Lawlor may have availed.

It is noted that Paragraph A5 of the Amended Terms of Reference aforementioned is further delimited by the terms thereof to “acts associated with the planning process which may compromise the disinterested performance of public duties.” Accordingly, it is further respectfully submitted that any matters unrelated to the “performance of public duties” are outside the Amended Terms of Reference that, consequently, any personal or private business of Mr. Lawlor outside the performance of public duties are thereby excluded from the Tribunal’s

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inquiries.”

9. I hold that relevance in the instant case is a matter for decision by the Tribunal (see Glackin -v- Trustee Savings Bank [19931 3.I.R. 55 at p.62/63).

10. The letter refers to an enclosed “statement of Mr. Lawlor relating to his performance of public duties in the context of the Tribunal’s inquiries in relation to the development at Quarryvale, Co. Dublin in co-operation with the Tribunal in such inquiries.”

11. Amongst the documents submitted by Mr. Lawlor, which I think can reasonably be assumed to be considered as of relevance and importance by him is one entitled “General/Local Elections and Key Referenda -1974 to Date.”, the first matter noted being the local elections of 18th June 1974. In Mr. Lawlor’s Replying Affidavit sworn on 13th October 2000, Exhibit LL4, (page 86 of Mr. Lawlor’s documentation headed “Frank Dunlop Payments”), it is stated:

“I first met Frank Dunlop in 1975 when he came to work for the party.”

12. Frank Dunlop is one of the persons named in the letter from the Tribunal of 19th May 2000 headed: Mr. Liam Lawlor T.D. - Tribunal request for a Voluntary Statement”, page 2, paragraph numbered with the figure (2)

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13. Mr. Lawlor was an elected member of Dáil Éireann on or about 16th June 1977 and an elected member of Dublin County Council from 7th June 1979. The Tribunal received Mr. Lawlor’s solicitor letter on the day it was written, formally acknowledged receipt of it on 7th June and indicating that it would respond when the documentation had been considered. With admirable promptitude, the Tribunal did so the following day under two headings:

1. Tribunal’s Request for a Voluntary Statement.

14. Under this heading, the Tribunal reiterated its clearly stated earlier express point of view that the Tribunal’s inquiries, insofar as they involve Mr. Lawlor, relate to matters and events in which Mr. Lawlor may have been involved, whether in his capacity as a member of Dublin County Council or otherwise. It refers to eleven different items, and in respect of nine such, no information at all had been provided and that:

“In these circumstances, the Tribunal has no alternative but to require him (Mr. Lawlor) in due course to provide the information by answering questions at a public sitting of the Tribunal.”

2. Accounts in Banks and Other Financial Institutions.

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15. Under this heading, it is clear that the Sole Member had “been made aware of certain acts associated with the planning process which, if true, may, in his opinion amount to corruption.”

16. The letter then continues:

“The Sole Member of the Tribunal is satisfied that it is necessary for the purpose of his inquiries that he obtains the documentation and information. He would have preferred to have obtained this documentation and information from your client (Mr. Lawlor) on a voluntary basis. In the absence of agreement, he considers it necessary and appropriate that he should make the Orders for Discovery and production of documents indicated in the Tribunal’s letter of the 19th ult. relating thereto.

As can be seen from their description, the events into which the Tribunal is enquiring involving your client do not necessarily involve matters in which he was involved in the context of his public duties, although some of them clearly do. Whether they do or not, they are clearly encompassed by Clause A5 of the Terms of Reference. All of the documents received by the Tribunal on foot of these orders will be treated in the strictest confidence and only those documents which are relevant to an issue in respect of which the Sole Member has decided to call evidence at a public hearing will be used for any purpose. The remaining documents will remain confidential.

I am directed to furnish by way of service the enclosed order in respect of Mr. Lawlor accordingly. In view of your client’s previous refusal to provide a sworn Affidavit of Discovery in respect of his bank accounts, the Sole Member of the Tribunal has asked me to draw your client’s specific attention to the fact that the order directed to him requires him to make Discovery on Oath of the documents

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referred to as well as requiring him to produce the said documents.”

17. The Sole Member made the Order for Discovery in issue in this suit on the 8th June 2000. The validity of that Order cannot be dependant on events that occurred thereafter. On the information placed before the Court and the submissions made to the Court, I hold that (A) the Sole Member had jurisdiction to make the Order of 8th June 2000 and (B) that it is an Order made within the discretion and jurisdiction of the Sole Member.

18. The Order of 8th June 2000 relates to the following topics: -

a) documents relating to financial institutions.

b) documents relating to companies that Mr. Lawlor may have held an interest.

c) documents relating to the tax amnesty.

19. In regard to this Order, Mr. Rogers for Mr. Lawlor made the following points:-

1. The Order is not sufficiently clear on its face. I reject this submission for the following reasons:

(A) The Order was preceded by a legal background of an earlier action which referred in part to Discovery of documents.

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(B) The context of the making of the Order is the correspondence immediately preceding it. Mr. Lawlor’s solicitors by letter dated 10th October 2000 inter alia stated:

“...... in the event of the Tribunal commencing enforcement proceedings, our client’s position will be set before the High Court inter alia by reference to our previous correspondence herein.”

(C) There is no necessity to quote the Terms of Reference of the Tribunal in the Order. Furthermore, Mr. Lawlor’s solicitors letter of 2nd June 2000 and the Tribunal’s letter of 8th June 2000 both specifically refer to the Terms of Reference and in particular to Paragraph A5.

2. Mr. Rogers also submitted that the Order both as to its scope and time is too wide. I reject this submission for the following reasons:

(A) Unlike the position in Haughey -v- Moriarty [1999] 3 IR 1 where Orders for Discovery were first made and Mr. Haughey and other Plaintiffs were then given an opportunity of applying to the Tribunal to vary or discharge the order (see page 71 of the report), in the instant case an opportunity was afforded to Mr. Lawlor prior to the making of any Order of Discovery. Such representations were made and, on the most favourable construction to

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20. Mr. Lawlor, were as to time related to 1977 when he was first elected to the Dáil or 1979 when he was first elected to Dublin County Council. The limitation as to scope contended for by Mr. Lawlor through his solicitors was that such Order could or should only relate to matters of “public duties” (which point has been abandoned in these proceedings). In short, if the Order was too wide in scope or time, Mr. Lawlor was given an opportunity to put his point of view before the Order was made. Furthermore, it appears that the Tribunal have written over 50 letters to Mr. Lawlor since October 1998, see transcript of Tribunal proceedings 10th October 27 p.8 lines 27 to 30, being Exhibit G referred to in the Affidavit of Ms. Howard sworn on 16th October 2000.

(B) The Sole Member, even in the limited period prior to the Order, sought to obtain documentation on a voluntary basis in the following circumstances:

(i) The letter of 19th May 2000 re “Accounts in banks and other financial institutions” (internal p.3) states:

“In the event that Mr. Lawlor is not in a position to provide such information and to provide such authority to the Tribunal, the Sole Member has asked me to inform you that he will on the 29th day of May 2000 consider whether or not it is necessary for the purposes of his function to make the following orders.”

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(ii) The letter of 19th May 2000 re: “Tribunal request for a voluntary statement” (internal p.3), the final sentence of the penultimate paragraph states:

“The request contained in this letter is a request to your client to provide all of the above mentioned information on a voluntary basis.”

(C) Mr. Rogers drew specific attention to the decision of Laffoy J. in Dunnes Stores Ireland Company -v- Maloney [1999] 3 I.R. and in particular to that part thereof entitled: “The demand: excessive/unreasonable” at p.564 of the report. Counsel submitted that in determining whether the demand for documents was excessive or unreasonable, three tests were to be applied:-

(I) Was the demand made within jurisdiction; and to satisfy this test, one needs to know to what purpose the demand was made.

21. Prior to the issue of any Order, Mr. Lawlor was made aware of reasons:

(a) In the letter of 19th May 2000 entitled “Accounts banks and other financial institutions”, it is stated:

“The Tribunal has received information that suggests that Mr. Lawlor has not made full disclosure to the Tribunal of all his bank accounts within the State and Tribunal has also reason to believe that your client’s statement to the

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effect that he has no such accounts outside the State is not correct.”

22. At internal page 2 of that letter, it is clearly stated that the Sole Member will consider whether or not it is necessary for the purposes of his functions to make certain orders.

(b) It is clear from the conspectus view of the correspondence as a whole between the parties that the Sole Member is seeking to obtain information to enable him to discharge his functions and that he required and requires the information he has been seeking over a very long period and had every good reason to conclude the correspondence course and make an Order such as he did.

(II) The second test to be applied is to consider whether the demand was reasonable in content.

23. Prior to the issue of any Order, Mr. Lawlor was made aware of specific matters of inquiry upon which the Tribunal was engaged as at 19th May 2000. (See items 1 to 8 in the letter of 15th May 2000 re “Tribunal request for a voluntary statement”) and in its letter of the same date referable to “Accounts in banks and other financial institutions”, the apparent lack of full and frank disclosure by Mr. Lawlor warranted the formulation of an Order in very wide terms. It is of importance to note that:-

(i) Before any orders were made, the nature and

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extent of the possible scope and absence of time limit was clearly indicated in the letter of 19/5/2000 dealing with “Accounts in banks and other financial institutions.”

(ii) Mr. Lawlor was given a very fair and reasonable opportunity to make representations prior to the making of any Order.

(iii) Mr. Lawlor did not make many of the points of objection, challenging or query to the Tribunal that were made on his behalf in Court.

24. In my judgment, the scope of subject matter is reasonable in content. However, the scope as to time or length of period over which Discovery is sought must also be reasonable. In this regard, the following dates are of note.

1. Mr. Lawlor chose a date of significance 18th June 1974 as the date of the “Local Elections and Key Referenda 1974 to Date”, part of Exhibit F in the Affidavit of Ms. Howard (p.35 of exhibit) Mr. Rogers in his submission referred to Haughey -v- Moriarty [1999] 3 I.R. p.1 in the judgment of Hamilton C.J. at page 66, he refers and quotes from the judgment of Geoghegan J. in the High Court in which it is stated:

“I am particularly bearing in mind that the accounts required went back only to1974.”

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25. The judgment of the Supreme Court did not adjudicate on whether going back so far as 1974 was either reasonable or unreasonable.

2. At p.25 of Exhibit F of Ms. Howard’s Affidavit, Mr. Lawlor under the heading of a document entitled “Frank Dunlop Payments” (and I have referred to this earlier in the judgement) states:

“I first met Frank Dunlop in 1975 when he came to work for the party.”

3. In several discursive and disputatious dispatches to the Tribunal, Mr. Lawlor’s solicitors referred to1977 and 1979 as dates of first election to Dáil Eireann and Dublin County Council respectively.

4. “The appropriate date” within the meaning of the Local Government (Planning and Development) Act 1963 is the 1st October 1964.

26. Having regard to the foregoing, it seems to be reasonable that the Order for Discovery on the information at present before the Court ought not to extend backward before 1st October 1964 and having regard to the information furnished to the Tribunal (taken in conjunction with the range of matters referred to in both letters of 19th May 2000 from the Tribunal to Mr. Lawlor’s solicitors) that there is good reason to enforce and direct Discovery on

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27. Oath at least back to 18th June 1974 in respect of all matters upon which the Tribunal sought Discovery in the first instance, with the right of the Tribunal, if it considers it appropriate to enforce in toto the Order of Discovery of 8th June 2000 back to but not before 1st October 1964.

3. The third question or test laid down in Dunnes Stores Ireland -v- Maloney is to consider whether a reasonable time had been given for compliance with the Order for Discovery.

28. While 14 clear days for making Discovery ordered by Order of 8th June 2000 may seem severe, it was not so and is not unreasonable considering the following:

(A) The general background and difficulty the Tribunal has had in obtaining information from Mr. Lawlor over a period of some two years.

(B) The immediate background to the Orders between 19th May 2000 and 8th June 2000.

(C) That when the Tribunal’s Order of 26th April 1999 (Exhibit H in the Affidavit of Ms. Howard sworn on 16th October 2000) provided that Mr. Lawlor was on or before 18th May 1999, or within such other period as may be allowed by the Tribunal, make discovery of and produce certain documents:

(a) Mr. Lawlor exercised his legal right to

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challenge the Order, which he was quite within his rights to do.

(b) Having failed in his challenge on 2nd July 1999, he did not attempt to comply with same until 7th October 1999 and because neither the Order of the Tribunal of 26th April 1999 or the Order (insofar as I am aware - and I have not had the sight of the actual Order of Kearns J. before me) stated expressly that Discovery had to be on Oath, Mr. Lawlor failed, neglected or refused to do so.

(c) Having regard to Mr. Lawlor’s solicitors letter of 20th September 1999 referred to earlier in this judgment that it would not be possible to have “an Affidavit of Discovery” prior to 1st October 1999 and asking for an extension of time to 6th October 1999.

29. I am satisfied that on the information before me, that Mr. Lawlor knew what was required, as did his solicitor, but Mr. Lawlor sought, and he was entitled to do so, to rely upon the letter of the law rather than its spirit and did not make an Affidavit of Discovery.

(D) While a considerable emphasis was placed in the prolix and argumentative correspondence from Mr. Lawlor’s solicitors to the Tribunal on the necessity of compliance with the provisions of

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30. Order 31 Rule 12 of the Rules of the Superior Courts 1986 as amended by insertion by S.I. 223 of 1999, this indicates a failure to appreciate some basic matters:

(1) An inquiry is not lis inter partes .

(2) The Tribunal is not obligated to first seek Orders of the Court for Discovery before ordering Discovery.

(3) If the Tribunal makes an Order of Discovery, the validity of which has not being challenged and struck down by Court Order, it is prima facie valid and must be complied with.

(4) That unless so challenged and struck down, there is no inhibition in law in the Tribunal proceeding to make Production Orders or issuing Orders by way of summons to attend, produce and answer questions in respect of the documents directed to be discovered and produced.

31. It is clear from Mr. Lawlor’s solicitors letter of 24th July 2000 that it was considered that the Discovery sought was in the nature of a general trawl through his personal and business affairs and that being called to make a statement in public did not arise.

32. I reject this submission made on Mr. Lawlor’s behalf in that the failure by Mr. Lawlor to make Discovery within the time stipulated by the Tribunal, the

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33. Tribunal were obligated to first invoke Section 4 of the Tribunal of Inquiry (Evidence) (Amendment) Act 1997 before proceeding to be make the Orders of 21st September 2000. In the instant case, the Tribunal invited Mr. Lawlor by letter dated 28th July 2000 to challenge the validity of its Order of 8th June 2000 if he thought it was invalid. The invitation was not accepted nor the issue of Discovery properly addressed by Mr. Lawlor or his solicitors. The Tribunal’s letter of 28th July 2000 was not replied to until 9th October 2000.

34. In the absence of compliance with the Order for Discovery or a challenge to the validity of the Order or a meaningful response to the letter of 28th July, the Sole Member proceeded to issue two summonses pursuant to the provisions of the Tribunals of Inquiry(Evidence) Act 1921 - 1998 commanding Mr. Lawlor to attend before the Tribunal to: -

(i) bring and hand over to the Tribunal the documents and records the subject of the Order for Discovery.

(ii) to give evidence to the Tribunal in relation to the documents and records the subject of the Order for Discovery.

35. It is of importance to note that at this stage of its investigations, the Tribunal is not imposing any

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obligation to answer any wider category of questions; there is a limited and confined set of requirements being made of Mr. Lawlor at this stage. In my judgment, the Tribunal had jurisdiction to issue the summonses and did so within jurisdiction. Insofar as the discretion to issue the summons is concerned, I am satisfied that the original Order and Orders summoning Mr. Lawlor are not “an affront to common sense” as referred to in Keegan -v- The Stardust Tribunal and as explained by Finlay J. in The State (O’Keeffe) -v- An Bord Pleanála .

(E) Counsel for Mr. Lawlor submitted that these Orders ought not to have been made, but if made ought not to have obligated Mr. Lawlor to appear in public and to answer questions because, as he said, the Tribunal was in investigative mode and this matter should be conducted in private, not in public. Specifically, he relied on the Supreme Court in judgment in Haughey -v- Moriarty [1999] 3 .I.R. p.1 at p.74 setting out the stages of an inquiry, a decision that was affirmed in Redmond -v- Flood [1999] 1 ILRM 241 p. 255 p.256. It was urged on Mr. Lawlor’s behalf that because the judgment in the Haughey case stated at p.74 of the report as follows:

“Neither can it be submitted that the public or any portion thereof are entitled to be present at the preliminary investigation of the evidence for the

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purposes of ascertaining whether it is relevant or not.

If these inquiries in this investigation were to be held in public, it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby.”

36. Adverting to both judgments on the stages of a Tribunal of Inquiry, Denham J. in Liam Lawlor -v-

Mr. Justice Feargus Flood (The Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments ) states at page 7 of the typescript copy of the judgement as follows:

“The initial stages includes steps such as discovery and information given by consent. If, in the initial process, information requested is not amenable by consent to the staff of the Tribunal then it is necessary for the Tribunal to move on to the next stage, to call witnesses and to inquire into the matter fully at a sitting of the Tribunal - whether in public or private, as appropriate. It is not a matter to be delegated by the Tribunal to anybody.

The difference between proceedings in Court (and being a party thereto) and a Tribunal of Inquiry to which a person is called to give evidence is important. The Tribunal hearing is not a criminal trial, nor is it even a civil trial, nor is the person a party. The hearing is an inquiry to which the person is a witness.”

“The Tribunal itself was established to inquire into certainly matters. Whilst preliminary work is necessary, and indeed may be in ease of many persons

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by excluding them from the public hearings, the effect of a literal interpretation is that if a person does not subject themselves voluntarily to be questioned by Counsel or staff of the Tribunal or other preliminary work, then the matter moves on to the Tribunal’s most important stage - that of public hearings. The person is then liable to be called as a witness before the public hearing, which hearing may range more widely in the absence of preliminary work.”

37. In the instant case, I am satisfied that by reason of the responses of Mr. Lawlor, the Tribunal was perfectly within its rights to issue the summonses to produce documents and records requested related to the Discovery Order.

38. The summons to give evidence concerning the documents and records related to the Discovery Order at a sitting in public is an Order made within jurisdiction and was not an unreasonable Order for the Sole Member to have made in all the circumstances disclosed to the Court. It may well be that when the matter comes before a public sitting, the Tribunal may consider it appropriate to adjourn to consider one, some or all of the documents and/or that the matter be considered in private. I am not prepared to assume that the Tribunal will not conduct its business in accordance with the Tribunals of Inquiry (Evidence) Acts 1921 -1998 and its Terms of Reference and the case law touching directly and indirectly upon its business.

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39. Both summons were returnable to 10th October 2000, thus giving Mr. Lawlor about two to three weeks in which to challenge their validity. He did not do so. The evidence indicates that:

(1) Mr. Lawlor appears to have given an interview to or spoken to a journalist, a Mr. Paul Cullen, and in an issue of the Irish Times of 6th October 2000, Mr. Lawlor is reported as saying that he has “no intention” of appearing at the Flood Tribunal.

(2) On 9th October 2000, Mr. Lawlor’s solicitors wrote dealing not only with the Tribunal’s letter of 28th July already referred to in this judgment, but also with the summonses of 21st September 2000 referable to the Order of the 8th June 2000 and stated:

“Furthermore, our client shall not comply therewith until such time, if any, as the validity thereof has been confirmed by the High Court. In these circumstances, our client shall not be in attendance before the Tribunal on the dates specified in the form of witness summonses attached to your correspondence.”

40. This letter deals with other matters which are all of a piece with the earlier correspondence as to the terms upon which Mr. Lawlor would be prepared to or had co-operated (as he said he saw it) with the Tribunal and seeks to argue with the Tribunal on alleged non-compliance with the Rules of Court.

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41. The Tribunal sat in public on 10th October 2000 and Mr. Lawlor was called. There was no appearance by him or on his behalf and this occurred on two occasions. Correspondence between Mr. Lawlor and the Tribunal were read in public (most of it formed the evidence before the Court) and such omissions as are to be detected are links in the gaps of correspondence before the Court. Counsel for Mr. Lawlor deprecated the events that had taken place at the public sitting of the Tribunal on 10th October and said that in making the Orders of21st September 2000 and in particular the Order commanding Mr. Lawlor to attend in. public to answer questions the Tribunal had “slipped a gear”, i.e. in going public rather than carrying out the investigation in private. As yet, nothing other than the abortive sitting of 10th October 2000 has taken place.

42. Mr. Rogers said that in regard to the Order for Discovery that he was not seeking to challenge the Order, rather to correct it. In regard to the Order to produce, he does not overtly seek to challenge or correct it, but by inference seeks to correct it as being, as he indicated, too wide, like unto the Order for Discovery. The gravamen of his argument is that such investigation as may be carried out under the summons to attend and answer questions is

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that it ought to be done in private, not public.

43. Mr. Rogers stated of Mr. Lawlor that: “He is a person in public life and he has to cope with that.” I think it reasonable to assume that in over 30 years in public life he appreciates the sentiments, if not exactly familiar with the words of Edmund Burke that:

“People who would carry on great public schemes must be proof against the most fatiguing delays, the most mortifying disappointments, the most shocking insults, and worst of all the most presumptuous judgement of the ignorant upon their designs.”

44. If Mr. Lawlor feels aggrieved that on 10th October 2000 in Dublin Castle what he considers the private dialogue between the Inquiry and himself was discussed in public, the same disclosure was made in this Court on 16th and 17th October 2000. I have already noted how Mr. Lawlor first indicated his intention not to attend before the Tribunal on 10th October 2000, by press interview published on 6th October 2000. I record this as a matter of fact only without comment or drawing or seeking to draw any inference therefrom. The case of Woodward & Others -v- Hutchins & Others [1977] 1 WLR p.760 seems apposite, while accepting its distinguishing wishing features. It concerned a public relations agent for a pop group who was allegedly bound by a condition of confidence contract who decided to

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publish information referable to the group. In the course of his judgment, Denning M.R. at p.763 and 764 stated as follows:

“There is no doubt whatever that this pop group sought publicity. They wanted themselves presented to the public in a favourable light so that audiences would come to hear them and support them. Mr. Hutchins was engaged so as to produce or help to produce this favourable image not only of their public lives but of their private lives also. If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they have fostered was not a true image it is in the public interest that it should be corrected. In these cases of confidential information, it is a question of balancing the public interest in maintaining confidence against the public interest in knowing the truth.”

45. In the instant case, Orders prima facie valid were unchallenged, the Tribunal sat in public, other than as related no business concerning Mr. Lawlor took place save as to the ruling of the Sole Member. The Sole Member was entitled to make a ruling.

Conclusions:

1. The Order for Discovery of 8th June 2000 is valid. The Order to make Discovery on Oath therewith as against Mr. Lawlor will be as follows:

(a) For the period beginning 16th June 1977 to date, 30

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within one week from today’s date, 24th October 2000 (the first period).

(b) For the period beginning 18th June 1974 to 17th June 1977, within three weeks from today’s date, 24th October 2000 (the second period)

(c) On the Tribunal being satisfied that it is necessary for the fulfilment of their functions to have Discovery prior to 18th June 1974, it may extend the time of such Discovery to begin on 1st October 1964, but no further, without express Court Order. In which event, Mr. Lawlor is to have four weeks from the date of production of the documents referable to the second period or such further time as may be agreed between “the parties” for compliance. (The third period).

46. All affidavits shall be in the form prescribed in Form 10 Appendix C of the Rules and the Order of this Court is without prejudice to any further or other Order as the Tribunal may be entitled to make by way of seeking further and better Discovery, whether arising out of these Orders or otherwise.

2. The Order or Summons of 21st September 2000 is valid and Mr. Lawlor shall attend before the Tribunal to have with him and there and then produce and hand over to the Tribunal all the documents and

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records mentioned in paragraphs (a), (b) and (c) of the Order of Discovery in respect of:

(A) The first period on any day determined by the Tribunal after one week from the date of the delivery if the Affidavit of Discovery.

(B) The second period on any day determined by the Tribunal after one week from the date of delivery of the Affidavit of Discovery.

(C) The third period on any day determined by the Tribunal after one week from the date of the delivery of the Affidavit of Discovery.

3. The Order or Summons of 21st September 2000 is valid and Mr. Lawlor shall attend before the Tribunal not later than two weeks from today’s date, 24th October 2000, to give evidence in respect of the matters referred to in the documents referable to the first period and thereafter from time to time as determined by the Tribunal on notification to Mr. Lawlor or his solicitors by the Tribunal as to the exact time and place at least two clear days in advance.

47. The Summons of 21st September 2000 clearly refers to the taking of evidence at a public sitting, as does paragraph 4 of the Special Endorsement of Claim,

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though no such reference appears in the relief clause at paragraph 6(iv) of the Endorsement. This seems to be a situation for the application of the slip rule and I apply it accordingly. The Tribunal has an entitlement to sit and take evidence in public. The limitation of the right of the Tribunal to refuse to allow the public or any portion of the public to be present at any of the proceedings is expressly referred to in Section 2 of the 1921 Act and I am not prepared to strike down the Order to give evidence in public and direct the evidence to be heard in private. The Tribunal will be aware of the judgments of the Supreme Court in both Haughey -v- Moriarty and the more recent decision in Bailey & Others -v- Flood (unreported, 14th April 2000) and I am not disposed to curtailing (for I may not) the discretion of the Tribunal. My entitlement on discretion arises from this section and I have exercised it as heretofore mentioned in this judgment.

48. Having regard to all the evidence and the ruling of the Sole Member of 10th October 2000 that the Summonses:

“were issued by me in circumstances where I considered that it was necessary for the purpose my functions to do so.”

49. I am satisfied that the decision of the Sole Member conforms to the standard of reasonableness laid down

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in both Keegan’s case and O’Keeffe’s case and has regard to the subject matter and consequences of the decisions as illustrated in R. -v- Lord Saville [1994] 4 AER 860. In respect of all Orders, I hold that they were made within jurisdiction, discretion and reason.