High Court of Ireland Decisions

1. In these proceedings the Applicant seeks relief by way of Judicial Review in respect of certain rulings made in the proceedings of the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter referred to as the “Flood Tribunal”), appointed by instrument of the Minister for the Environment and Local Government dated 4th November, 1997 as amended by instrument dated 15th July, 1998.

2. The Amended Terms of Reference of the Flood Tribunal provide, inter alia, that the Tribunal shall inquire urgently into and report to the Clerk of the Dail and make findings and recommendation as it sees fit in relation to the following definite matters of urgent public importance:-

3. Because it is a point which was in part relied upon in the course of submissions made on behalf of the Applicant, it is perhaps pertinent to refer also to the Amended Terms of Reference insofar as they indicate the manner in which the Tribunal has been requested to conduct its inquires. They include provisions -

4. In the course of inquiry into the affairs of Mr. Tom Brennan and Mr. Joe McGowan (the Brennan and McGowan Module) of the Tribunal’s inquiry, it emerged that a company controlled by Mr. Raphael Burke, Caviar Limited, was paid two payments, the first on the 21st November, 1984 amounting to £60,000.00 and the second in April 1985 amounting to £15,000.00 from a company called Canio Limited which is registered in Jersey. This is a company in which the Applicant has a one third interest, each of the other thirds being owned by Mr. Tom Brennan and Mr. Joe McGowan via Jersey based companies, Kalabraki Limited and Gasche Limited. Mr. Finnegan’s company was known as Foxtown Investments Limited and was Guernsey based. It is not in dispute that monies generated by a property transaction in Sandyford by means of a loan from Lombard & Ulster Bank were drawn down in favour of Canio, whereof £60,000.00 was transferred from Canio to Mr. Burke’s company two days later, the remaining balance being divided between the trust companies representing Messrs. Brennan and McGowan and the Applicant. In April 1985 a further sum of £15,000.00 was transferred to the account of Caviar Limited and it has been established that this sum was similarly a payment made by Canio Limited.

5. Equally, it is not in dispute that of the said sum £60,000.00, £25,000.00 was paid by or on behalf of each of Messrs. Brennan and McGowan, and a further sum of £10,000 from Mr. Finnegan’s Foxtown Investments, was paid over at the same time.

6. I should stress at the outset that the Applicant contends that the payment to Mr. Burke was made without his knowledge or authorisation and that at all material times it had been his understanding that the said sum of £10,000 was to be placed in a fund to which Messrs. Brennan and McGowan would contribute equivalent sums for the purpose of meeting architectural and other expenses and outlays likely to arise in the course of property development.

7. The Tribunal in the course of its hearings had originally been informed by Mr. McGowan in sworn testimony that monies paid to Mr. Burke were the proceeds of fund-raising events and activities hosted by him for Fianna Fail/Ray Burke. This evidence was supported by Mr. Brennan. Following an investigation by the Respondent, this version of events was retracted. Mr. Burke also retracted previous evidence given by him in relation to the £15,000. He had originally provided in evidence a detailed account of how this sum had been a re-lodgement of a previous withdrawal from an account of his. He accepted thereafter, both in correspondence and in evidence, that these monies originated from the same company that had paid the £60,000. Messrs. Brennan and McGowan also acknowledged the inaccuracy of evidence tendered by them to the Tribunal.

8. The Tribunal had come by the information in relation to Canio through documentation supplied by Messrs. Bedell Cristin, a Jersey based firm of solicitors. Following an analysis of this documentation, it became apparent that the land transaction giving rise to the particular payment was not an isolated occurrence, but rather part of a series of land transactions involving the same persons which had a number of similar features. Mr. Thomas Brennan, Mr. Joseph McGowan and Mr. John Finnegan through various corporate structures were involved in a series of transactions involving lands in Dublin at Monkstown, Donnybrook, Newtown Park Avenue, Mount Anville, Tritonville Avenue, 6/7 St. Stephen’s Green and Sandyford. The essential common features of these transactions were:-

9. The Respondent decided in examining the context in which the Canio payments were made to Mr. Burke and in order to inquire into the reasons for such payments and into whether or not further payments were made to Mr. Burke that the Tribunal would inquire in the course of the evidence into the corporate infrastructure of which Canio was a part, the underlying transactions for which it was formed and also other similar land transactions in which the partners in Canio were involved with similar offshore infrastructures which it appeared had common features and which appeared to be interconnected.

10. One such transaction concerned lands at Monkstown the property of the Sacred Heart nuns. In 1976, it appears that the Applicant acting for the nuns had approached Messrs. Brennan and McGowan with a view to the possible purchase by Messrs. Brennan McGowan of the said lands. In August 1976, the leasehold interest in the lands was bought in trust for the sum of £210,000 for Green Isle Holding Trust Limited in which Messrs. Brennan and McGowan, but not Mr. Finnegan, were shareholders. The outstanding freehold title remained vested in the de Vesci estate. In June 1977, the Sacred Heart nuns, for some unexplained reason, were again involved when they entered into a contract with the de Vesci estate and paid £10,000 to acquire the freehold. Thereafter the freehold interest was assigned in July, 1977 for £10,500 to a Jersey company, Bouganville Investments, the beneficial owners of which were Messrs. Brennan, McGowan and Finnegan. Mr. Finnegan’s involvement in this aspect of matters (the extent of which is unclear) took place, he claims, when his duty to the nuns was over and, without any complaint from either the nuns or their legal advisors. It is perhaps pertinent to also note that the assignment of the leasehold was not made until November, 1977.

11. As part of a contemporaneous prearranged scheme, Mr. Hugh Owens, Accountant to Messrs. Brennan and McGowan, had set up Bouganville and another Jersey company, Rapallo, in June 1977. The beneficial owners were Messrs. Brennan, McGowan and Finnegan. The object of the exercise was to merge the freehold title with the leasehold title, thereby freeing up the title from various restrictive covenants. A debt was created by Rapallo by a supposed management agreement totalling £350,000. Fictitious correspondence was prearranged and put in place between Bouganville and Green Isle Holding Trust Limited. The consideration was £12 and the discharge of the debt of £350,000, which it was alleged Bouganville owed to Rapallo. The £350,000 was paid to Rapallo and distributed to Messrs. Brennan, McGowan and their companies, which got £200,000. Another company owned by Mr. Finnegan, Foxtown Investments, got £100,000 and Mr. Finnegan got an additional draft for £5,000. Bouganville then went into liquidation and the freehold was transferred via the liquidator to Green Isle Holding Trust Limited.

12. In relation to this transaction, the concern of the Tribunal was to ascertain the purpose for the payment to Mr. Finnegan and to ascertain what had happened the money which Foxtown Investments received in relation to the transaction. As of Friday 22 June, 2001, the Tribunal had been unable to track the money trail beyond the point where funds had been drawn down to Mr. Finnegan’s company, Foxtown Investments Limited in the aforesaid sum of £105,000.

13. The Respondent first contacted the Applicant on the 20th March, 2001 when the Applicant was notified of certain matters which had come to the attention of the Respondent. Thereafter copious correspondence passed between the Tribunal and the Applicant, both notifying the Applicant of the information then within the possession of the Tribunal and requesting that the Applicant furnish a chronological narrative account of all payments made by him or on his behalf to Mr. Burke and related matters. It was intimated to the Applicant that he would be called to give evidence of his knowledge and involvement in the various land transactions already enumerated and that discovery would be required. Thereafter the Applicant attended voluntarily at a private meeting with Counsel for the Tribunal on the 28th March 2001, following which further queries were raised seeking both detailed chronological accounts of certain matters in relation to the joint transactions and requesting permission for an examination by the Respondent of all documents and records relating thereto.

14. I do not find it necessary to go into this correspondence in any detail other than to state I am quite satisfied that the Applicant had full notice of the areas of inquiry with which it was proposed to deal in evidence in that part of the hearings which were the subject matter of an opening statement by Mr. Hanratty, Counsel for the Tribunal, on the 15th May, 2001, including both the Canio transaction and the 1976/7 Monkstown land transactions.

15. Further, in detailing the agenda to be covered in evidence, Mr. Hanratty stated with supporting detail that Mr. Finnegan denied either knowledge or authorisation of the particular payment from Canio to Mr. Burke’s company in 1984. On the 15th May 2001 the Applicant obtained limited representation for the purpose of protecting his interests.

16. The two specific matters which give rise to the present proceedings arose during the course of the examination of Mr. Thomas Brennan by Mr. Hanratty. Firstly, while Mr. Hanratty was examining Mr. Brennan in relation to the Canio payment, his Counsel approached one of the Tribunal barristers with a document which was already in the possession of the Tribunal and which had been circulated to all parties. This document was a telex from Mr. Wheeler, (Solicitor to Messrs. Brennan and McGowan) to Mr. David Barry (agent for the Applicant) dated the 21st day of November, 1984 which the Applicants Counsel felt should be put to the witness at that point in time as tending to show that the Applicant was not aware of any payment to Mr. Burke by Canio.

17. The document is dated 21st November, 1984 and is marked ‘for the attention of Mr. D. Barry’ and states as follows:-

18. However, Counsel for the Tribunal did not put the particular telex to Mr. Brennan or subsequently. The Applicant and/or his legal adviser apparently believed that, on one interpretation of the particular telex, the Sole Member might at that particular point in time have been quite satisfied therefrom that Mr. Finnegan had no hand, act or part in any payment to Mr. Burke, and that Mr. Finnegan might thereupon have been discharged from any further involvement in the proceedings. This belief was also partly based on replies from Mr. Brennan suggesting the Applicant may not have been told of the reason for the payment. The second matter relates to a sequence of questions and answers between Mr. Hanratty, Counsel for the Tribunal, and Mr. Brennan on Friday the 22nd June, 2001.

19. At this point of the examination, Mr. Hanratty was questioning Mr. Brennan about the Monkstown transaction and the elaborate arrangements which had been put in place to merge the freehold interest in 1977 with the leasehold interest which the religious order had sold to a Brennan and McGowan company, Green Isle Developments, in 1976.

20. For the purpose of placing what is described hereunder in context, I should record that while Mr. Finnegan had supplied a statement which provided some detail in relation to the Canio transaction, he had described only in the most general terms what had happened in the other five transactions. In particular, Mr. Finnegan’s account had not gone into any detail about the Monkstown transaction or the purpose of the transaction insofar as Mr. Finnegan and Foxtown were concerned. The Tribunal had further been informed that any documentation previously available to Foxtown was now in the custody of another company, Credit Suisse (Trust) Ltd, who had not complied with a request from the Applicant to disclose documentation. Further, as Mr. Hanratty proceeded to ask questions about the transaction in question, the Applicant’s own Counsel intervened to inform the Tribunal that Mr. Finnegan had, in fact, acted on behalf of the vendor in relation to the sale of lands at Monkstown. This intervention and statement (D. 271, pp. 60-61) was not qualified in any way nor was any distinction drawn between the freehold and leasehold interest of the nuns in the lands in question.

21. In the course of probing particular aspects of this transaction, Mr. Hanratty sought to elicit from Mr. Brennan some explanation as to why Mr. Finnegan received a total payment of £105,000 subsequent to the purchase and resale of the freehold title for £10,500 by the Order of the Sacred Heart to an offshore company in which Mr. Finnegan had a one third interest.

22. It is impossible in the course of the judgment to set out in full the tone and content of this examination, other than to state that Mr. Hanratty was pressing Mr. Brennan for some sort of explanation as to what Mr. Finnegan did or ‘brought to the table’ that warranted a payment to him of £105,000 by or on behalf of Messrs. Brennan and McGowan. Mr. Brennan (at day 271 /P 164/599) stated that Mr. Finnegan was an expert on property, that he did not know ‘what else he brought to the thing, other than that they were planning to do further business together.’ However, pointing out that Mr. Finnegan had not contributed any funds to the particular venture, and was not an advisor to Brennan and McGowan in relation to the transaction, Mr. Hanratty continued to press Mr. Brennan four or five times to give a reason for the payment, and, not getting any answer which he regarded as being in any way satisfactory, then put the following question ( at 617):-

23. Before this Court it was submitted that this question in particular, but also certain others, suggested that Mr. Finnegan, as an estate agent, had made a secret profit and had broken his fiduciary duty to the nuns in the manner in which he had acted in the Monkstown transactions. The format of the particular question, it was submitted, amounted to an accusation or allegation of wrongdoing against Mr. Finnegan which was quite outside the terms of reference of the Tribunal, and amounted to a damning attack on his character in breach of his constitutional rights to natural justice and fair procedures.

24. Complaints were also made about a further question at 642 as follows:-

25. In his grounding affidavit, Mr. Finnegan avers that in the aftermath of this line of questioning, the media press, T.V. and radio over the following weekend published reports drawing very damaging inferences to Mr. Finnegan arising therefrom. Some of these reports were exhibited in his Affidavit.

26. No intervention on behalf of the Applicant, however, was made during this questioning or at the end of the days proceedings. However on Monday 25th June, 2001 the Applicant’s solicitors wrote complaining about certain remarks made by Mr. Hanratty in the course of examining Mr. Brennan which were identified as those contained at p.147/Q493-4), being the following:-

27. The letter continued to state that

28. The letter further pointed out that Mr. Finnegan had, in fact, introduced Messrs. Brennan and McGowan as purchasers of the leasehold interest, in respect whereof a contract was signed on the 6th August, 1976 for the sale of the nuns leasehold interest. The letter contended that on the signing of that contract Mr. Finnegan’s duty to his client was fulfilled. Thereafter an assignment of that leasehold interest was made on the 23rd November, 1977 to Green Isle Holdings Trust Limited, a Brennan and McGowan company. The letter went on to recite that the freehold title was acquired by a company in which Mr. Finnegan had a one third interest following negotiation by Mr. Beatty (Vincent & Beatty being the nuns solicitors) who had agreed to negotiate for the acquisition of the freehold on behalf of the offshore company from the de Vesci estate and to be reimbursed with the cost of the freehold and legal expenses. The de Vesci estate had a valuer to value its interest and, while a contract for the purchase was entered into by the nuns for £10,000, the estate executed a conveyance to the offshore company on the 11th October, 1977 for that value plus legal expenses. The Applicant’s solicitors letter dated 25th June, 2001 pointed out that at the time when the questions were put (i.e., on Friday 22nd June, 2001), the Tribunal had in its possession title documents which set out the true position of the nuns interest in the lands in question. The letter further called on the Sole Member to clarify and put right the matters complained of.

29. The Sole Member replied on the 26th June, 2001 in the following terms:-

30. On Tuesday, 26th June 2001, Counsel on behalf of the Applicant made a protest on his clients behalf to the Tribunal, commencing his submissions by referring to the failure of Counsel for the Tribunal to put the “Wheeler Telex” to Mr. Brennan, contending that the production of the document would have ended his clients involvement with the Tribunal altogether.

31. He then proceeded to refer to Mr. Hanratty’s questions at p. 147 (Q.493 and 494). He did not however complain about the first two sequences of questioning to which I have alluded, which included the reference to “delivering the nuns property”, which in the course of submissions before this Court has been described as the most offensive assertion or allegation. He requested the Sole Member to take steps to undo the damage caused and to ensure there would be no repetition. Thereafter a request was made to release the Applicant from this module of the Tribunal’s work as having no further relevance to the work of the Tribunal.

32. In response, Mr. Hanratty contended that every single thing in the “Wheeler Telex” had already been stated in his opening or canvassed with the witness.

33. He further contended that as Mr. Finnegan ultimately received a payment of £105,000 in circumstances where he was neither a contributor nor investor in the venture and in circumstances where he had acted for the Sacred Heart nuns, that this was a legitimate line of inquiry for him to have followed. He pointed out from the transcript how Mr. Hussey had himself conveyed this information to the Tribunal.

34. Thereafter, the Sole Member ruled that he had an obligation to hear about certain sequences of events and that he did not intend to truncate the evidence in any way. He further pointed out that while Mr. McGowan would be the next witness, Mr. Finnegan would be then the next that followed so that he would in early course have every opportunity to present his account of events. He made clear he had reached no conclusions of any sort in the matter.

35. Thereafter, Mr. Hussey on behalf of the Applicant requested that the Tribunal, for the purpose of vindicating his clients reputation, in the light of the events of the previous Friday, conduct a preliminary hearing or sub-module into the Canio payment and make a finding as to whether or not any payment had been made by Mr. Finnegan to Mr. Burke and to conclude that inquiry before proceeding further with the main module. The Sole Member also refused to accede to this application.

36. In the light of these rulings, the Applicant has brought the present Judicial Review proceedings. O’Donovan J granted leave to bring same on the 3rd July, 2001.

37. Given that in the submissions actually made to this Court different reliefs are sought from those sought in the Judicial Review application before O’Donovan J, I think it would greatly simplify matters if I summarise the contentions made on behalf of the Applicant before this Court and the remedies sought.

38. Firstly, it is now conceded on behalf of the Applicant that it was and is entirely proper and appropriate for the Tribunal to examine all transactions in which Mr. Finnegan was involved with Mr. Brennan and Mr. McGowan between 1977 and 1990. It was further conceded on behalf of the Applicant that it was legitimate for the Tribunal to pursue lines of investigation as to why monies were drawn down to Foxtown Investments or paid to that company during that period but only to the extent required to ascertain whether or not payments had been made to Mr. Burke from any monies so drawn down or paid. (Day 1. pp 114/5). Once the issue of any payment to Mr. Burke was segregated out of the transaction, no inquiry into the Applicant’s affairs was appropriate.

39. It was not permissible, in the Applicants submission, to make an accusation of wrongful conduct outside the terms of reference of the Tribunal against Mr. Finnegan. It was submitted on behalf of the Applicant that the questioning of Mr. Brennan by Mr. Hanratty, and, in particular, the quoted sequence of questions set out above, amounted to an allegation or accusation of such conduct, such as would entitle the Applicant to a declaration that the Sole Member had exceeded his remit by allowing or permitting the questions and comments complained of and that, by so permitting, he had denied fair procedures and natural justice to the Applicant. Further, the Sole Member erred in refusing to direct Tribunal Counsel to refrain from further transgressions and in refusing to implement more appropriate procedures when so requested by Counsel on Tuesday, 26th June 2001.

40. It was further submitted that the panoply of rights guaranteed by in Re: Haughey (1971 IR p. 217) had been breached not only by these matters, but also by the failure to introduce the “Wheeler Telex” when its introduction in a timely way might have persuaded the Sole Member to discharge the Applicant from any further involvement in the Tribunal, particularly as Mr. Brennan had not in evidence to that point imputed knowledge of the true purpose of the payment to the Applicant.

41. It was further submitted that a preliminary investigation should have been put in place as an appropriate procedure to meet Mr. Finnegan’s situation and to vindicate his reputation. No submission however that any such preliminary examination be heard in private was eventually maintained before this Court.

42. In terms of the relief now being sought, Counsel for the Applicant indicated that a declaration that the Tribunal had exceeded its powers, either by going outside its terms of reference, or by denying natural justice and fair procedures to the Applicant, would meet the Applicant’s requirements. Such declaratory relief would preclude the Tribunal from any other transgression of this nature, it was submitted. Insofar as the refusal of the Sole Member to hold a preliminary investigation was concerned, that refusal should be quashed, particularly if the Court found as a fact that the introduction of the “Wheeler Telex” in the context of any such preliminary investigation might reasonably have resulted in the discharge of the Applicant from further involvement in the Tribunal, so that the refusal to hold some such preliminary form of investigation in the Applicants case was in the circumstances irrational and manifestly unreasonable. It was made clear to the Court that the Applicant was not submitting that any further investigation into Mr. Finnegan’s involvement in transactions with Messrs. Brennan and McGowan was no longer possible, nor that the Tribunal was confined to an examination of the Canio payment. In essence, therefore, the kernel of the application is an invitation to the Court to censure the Tribunal for the events of the 22nd June, 2001.

43. In reply Mr. Collins on behalf of the Respondent submitted that Mr. Hanratty had firstly, in his opening statement, fully and adequately vindicated Mr. Finnegan’s position and anticipated response on the matter of the £10,000 payment when he stated:-

44. Mr. Collins submits that in so stating, Mr. Hanratty went further in favour of Mr. Finnegan they might be warranted by the “Wheeler Telex” and that, for that reason alone, the Applicant can have no complaint that the document was not introduced into evidence at the moment of the Applicant’s request. Further at Q. 573 (day 269) Mr. Hanratty had further clarified through examination of Mr. Brennan that Mr. Finnegan may not have known about the payment to Mr. Burke out of the Lombard & Ulster loan. Mr. Collins further drew attention to how Mr. Hanratty put Mr. Finnegan’s version of events at Q. 604 on the same day when he asked Mr. Brennan:-

45. In relation to the supposed allegation of wrongful conduct outside the terms of reference of the Tribunal, Mr. Collins submitted that no such interpretation could be placed on Mr. Hanratty’s questioning which, while robust, was in the overall context part of a permissible line of enquiry, as was now in fact conceded on behalf of the Applicant. He submitted that the question contained at Q. 617 (“Did he deliver the nuns property to you?”) could not be construed as raising a new issue or allegation in the proceedings which was calculated to injure or damage the Applicant. It was simply part of a sequence of questioning and had to be seen in that context, particularly having regard to the nature of replies received on the numerous occasions where Mr. Hanratty had sought to obtain a reason from Mr. Brennan for the payment of £105,000 to Mr. Finnegan’s company. It had not been followed up by any allegations of wrong doing by Counsel against the Applicant, nor by any allegations of breach of fiduciary duty, conflict of interest, dishonesty or anything of the sort. It was more logically open to the inference that the Applicant brought his experience and skills as an estate agent to bear on the situation with a view to capturing the freehold title, and in fact on the 28th June Mr. Hanratty had specifically suggested to Mr. Brennan, without objection taken, that what Mr. Finnegan was bringing to the table was his ability to free the title to the property and any restrictive covenant which might have been contained in the leasehold title (day 274/387). Further, prior to the line of questioning now complained of by the Applicant, his own Counsel had stated openly to the Tribunal that his client did act “as selling agent in respect of the property in Monkstown on behalf of the vendor”. If sections of the media had drawn certain inferences and conclusions from matters canvassed, that was quite a different thing from the Tribunal doing so, and interest expressed elsewhere in other aspects of the same facts could not nullify a legitimate line of inquiry.

46. In relation to any preliminary hearing, this was entirely a matter for the discretion of the sole member, Mr. Collins submitted. In this regard Mr. Collins referred to a passage from the judgment of Denham J in Thomas Bailey and Ors -v- Flood (Unreported Judgment of Supreme Court, 14th April, 2000) approving the following statement by the President (being the trial Judge in the case) when he stated:-

47. He further submitted that in relation to all rulings made by the Sole Member, the High Court should only intervene if such rulings were irrational or manifestly unreasonable, or if the Tribunal, in conducting its affairs, had breached the Applicants constitutional rights or denied him natural justice or fair procedures. No such ruling and no such conduct had occurred. Given the acknowledged existence of a payment from Canio Limited to Mr. Burke, there was ample material to justify the decision and ruling not to grant a preliminary hearing or sub-module. To deny some sort of separate preliminary hearing for the Applicant was not irrational or manifestly unreasonable.

48. While at one point during this hearing a question arose as to whether remarks or comments by Counsel for the Tribunal could be laid at the door of the Sole Member, Counsel for the Respondent has clarified that, for the purposes of the present application, the Sole Member has adopted the position that he is not drawing any distinction between their respective roles and functions. Equally, on behalf of the Applicant, it was accepted that, if this Court saw fit to intervene, it could do so effectively by means of a declaration that the Sole Member had wrongfully refused to restrain a line of questioning or inquiry if the Court was satisfied there had been a want of fair procedures or an allegation of wrongful conduct outside the terms of reference of the Tribunal.

49. These mutual concessions rendered redundant any further consideration of matters canvassed in opening by Mr. Fitzgerald SC, when he alluded to discussions before the Supreme Court in Lawlor -v- Flood ( 1999 3 I.R. Pp. 110/112) which related to the ambiguous role of Tribunal Counsel to the Sole Member.

50. There is no dispute or disagreement as to the relevant legal principles on the issues concerning the Tribunal’s conduct, nor indeed in relation to the role of this Court in the context of Judicial Review in relation to rulings made.

51. Article 40.3.2 of the Constitution provides:-

52. The Applicant contends that his Constitutional rights have been infringed, and relies essentially on the following passage from the judgment of O’Dalaigh CJ in Re: Haughey 1971 IR at p. 264:-

53. Quite obviously the second consideration alluded to by O’Dalaigh CJ does not arise in the instant case. However, the Applicant argues that he has been subjected to a wrongful accusation in respect of which he is, in effect, deprived of any right of cross examination and in respect of which he has no remedy other than to seek declaratory relief from this Court.

54. I propose to deal, firstly, with the suggestion that a want of fair procedures arose by virtue of the fact that Counsel for the Tribunal declined to introduce the “Wheeler Telex” at the earliest possible moment, if not indeed at the moment of the Applicants choosing, so that the Applicant’s good name and reputation might, at least to the extent conveyed by that document, be vindicated.

55. I cannot accept this submission. Firstly, Mr. Finnegan’s position in relation to the payment and surrounding circumstances was fully and fairly, in my view, dealt with by Mr. Hanratty both in his opening of this module on the 15th of May, 2001 and in the excerpts from the examination of Mr. Brennan to which I have referred. Indeed, it seems to me that Mr. Hanratty went further in terms of vindicating Mr. Finnegan’s position than the actual content of the telex might warrant.

56. The document in question can be put to this witness by Counsel for the Applicant in the course of cross-examination. I cannot for one moment believe or accept that Counsel for the Tribunal, in the context of a multiparty hearing or investigation, must respond to the prompting of Counsel for one or more parties to introduce a document at a time that suits the convenience of the requesting party, unless there is a real danger of some grave injustice, which might, for example, be that it will never be introduced. In the instant case, a Mr. Howard from the Bedell Cristin had already given evidence and produced the entire file from the solicitors firm in Jersey, which said file contained the telex in question. Various 1984 documents on the file had been referred to in the cross-examination of this particular witness by Counsel for the Applicant: He was

57. I turn then to the issue as to whether or not one sequence of questioning, indeed perhaps just one question, overstepped the mark in such a way as to amount to an accusation or allegation of wrongful conduct which was altogether outside the terms of reference of the Tribunal, and/or constituted a breach of the Applicant’s constitutional rights.

58. I think one must begin by asking if the general line of inquiry at the particular time was within the terms of reference of the Tribunal. It clearly was, as indeed has at this hearing been acknowledged by the Applicant to be the case. The questioning must also be seen in context. It proceeded in circumstances where the information supplied to the Tribunal by the Applicant since March 2001 had not provided any reason for the two payments amounting to £105,000, nor had the Tribunal been furnished with any documentation from Foxtown Investment Limited showing where, if to anyone or anywhere else, those funds might have gone following receipt. Given that one such transaction yielded up a payment to Mr. Burke, the Tribunal has a duty, it seems to me, to inquire fully into the other transactions involving the same parties, particularly where substantial unexplained payments or receipts are uncovered. There can be no basis for suggesting in the instant case that the funds received by Foxtown Investments have been adequately accounted for or segregated out in such a way as to preclude the possibility that Mr. Burke may have received portion thereof. Had such a point being reached, I would have accepted the Applicant’s submission that any further delving into this matter would have been, at least insofar as the Applicant was concerned, unwarranted. In the absence of that information, continued inquires and the raising of questions as to the reaons for the payments are entirely warranted and intra vires . The adopted line of questioning, it seems to me, is open to an interpretation which is neutral or even favourable to the Applicant. Suggesting this particular reason for the payment which was made to Mr. Finnegan or his company, contra-indicates or renders less likely the possibility of an onward payment to Mr. Burke or indeed to any other party who may have, to use Mr. Hanratty’s expression, “brought something to the table”. The absence of any reason leaves such possibilities intact if unaddressed. The questioning therefore has a reasonable basis. If some element of confusion as to the role of the Applicant was introduced as a result of information given on behalf of the Applicant, this cannot be laid at the door of Tribunal Counsel.

59. The relevance and appropriateness of the line of inquiry and questioning cannot be negatived merely because the Applicant’s actions are characterised in a certain way in media or press reports. At the end of the day, I am left with a very clear impression that the Applicant is aggrieved most by the adverse media publicity which the events of the particular day attracted, not least the inferences and connections which were drawn in some of these reports to which the Applicant has made reference in his Affidavit. However, this is quite a different thing to holding or concluding that the Tribunal itself engaged in such an exercise and I am holding as a fact that it did not. The Tribunal’s function is to discharge its remit and not to stultify its inquiries merely because a relevant line of inquiry may be of considerable interest for other reasons to the media or other interested parties.

60. I cannot see that the particular question objected to (Q. 617) or the other questions to which exception was at one time or another taken (Q. 642/Q.493/4) can or should be seen, without the injection of considerably more, as raising allegations of wrongful conduct either inside or outside the terms of reference of the Tribunal. I do not believe the questions amount to ‘allegations’ or ‘accusations’ nor were they developed as such to probe issues of any supposed wrongful breach of fiduciary duty, dishonesty or conflict of interest. Nor do I believe or hold that the questions were anything other than legitimate intra vires inquiries seeking clarification of matters admitted to be relevant to the Tribunals investigations. On the information then before the Tribunal it was not irrational or unreasonable for the Sole Member to refuse to rule out such questions or to truncate the evidence.

61. There is a marked difference between the situation of the Applicant and that of Mr. Padraig Haughey in the case so heavily relied upon by the Applicant’s advisors. In that case, Mr. Haughey had become a party because his conduct had become the subject matter of the Committees inquiry or examination by reason of the charges which had been levelled against him. As O’Dalaigh CJ stated at p. 263:-

62. There is no question in this case of the Applicant’s conduct qua estate agent being in any respect the subject matter of the Tribunal’s examination or the subject matter of its eventual report.

63. It follows from the foregoing findings that I see absolutely no reason for impugning the Sole Members refusal to hold a preliminary session or sub Module in the aftermath of the events of the 22nd June, 2001 as requested by Counsel on behalf of the Applicant on 26th June, 2001. Such a ruling, in my view, could only be impugned where it was manifestly unreasonable or irrational not to hold such a preliminary hearing, within the well established tests for this purpose established by O’Keeffe -v- Bord Pleanala (1993) 1 I.R. and Keegan -v- Stardust Tribunal (1987) ILRM 202. Given the acknowledged existence of the £60,000 payment to Mr. Burke by Canio Limited, whereof £10,000 part thereof were the monies of Mr. Finnegan (albeit, he contends, paid over without his knowledge or consent to Mr. Burke), that fact alone provides, in my view, a sufficiency of material for the ruling made by the Sole Member. I also accept fully the passage already referred to in Mr. Collins submission from the judgment of the President in Bailey -v- Flood , as endorsed by the Supreme Court. Relevant to the exercise of discretion by the Sole Member in this context is the fact that the Applicant has conceded that the Sole Member is entitled to fully investigate all transactions in which the Applicant was involved between 1977 - 1990 with Messrs. Brennan and McGowan, an admission and recognition which underlines in the clearest possible way the lack of any adequate basis for this particular submission. I cannot see that the proceedings of the 22nd June, 2001 imposed any additional or new obligation on the Sole Member in that regard. I accordingly hold that the Sole Member was quite entitled to decline to grant any such request.

64. I do not find there was has been any denial of natural justice or fair procedures to the Applicant in the matter complained of. Nor do I find that in any way the Tribunal either through questioning by Counsel, or in the rulings of the Sole Member, failed to protect or vindicate the Applicant’s reputation. I therefore refuse both the declaratory relief sought and the application to quash the Sole Member refusal to establish or hold a preliminary investigation.