High Court of Ireland Decisions

 


THE HIGH COURT

Rec. No. 2003/315 J.R.

BETWEEN

DERMOT DESMOND

APPLICANT

AND

MR. JUSTICE MICHAEL MORIARTY (SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS

CHARLES HAUGHEY AND MICHAEL LOWRY)

RESPONDENT

JUDGMENT of The Honourable Mr Justice Quirke delivered the 8^th day of

August 2003.

This matter first came before the court by way of an application for leave to seek relief by way of judicial review of certain decisions and rulings allegedly made by the respondent in his capacity as the Sole Member of the Tribunal of Inquiry (hereafter called the Tribunal) into payments to Messrs Charles Haughey and Michael Lowry and of certain procedures allegedly adopted or permitted by the respondent in that same capacity.

Having heard submissions from counsel on behalf of the applicant and having formed the opinion that this case fell within the category of exceptional cases where it is appropriate for the court to hear from a proposed respondent before deciding whether leave should be granted or refused, I adjourned the matter for a short period and directed that the respondent be notified and given an opportunity to be heard before a determination was made.

Subsequently the parties jointly requested that the court should hear the application for leave and the substantive issues raised in the application at the same time, that is to say on the basis that the substantive issues would be determined on the hypothesis of a successful application for leave. I acceded to that application in order to avoid potential duplication of proceedings and because it was sensible and convenient to do so.

RELEVANT FACTS

The Tribunal's terms of reference provide, inter alia, that the Oireachtas has resolved that it is "expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act 1921, as adapted by or under subsequent enactments and the Tribunal of Inquiry (Evidence) (Amendments) Act, 1979, to inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit in relation to the following definite matters of urgent public importance. . .

(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry . . . during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office . . .

(g) Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any person in return for such payments being made or procured or directed any other person to do such act or make such decision."

In the course of its work the Tribunal is presently investigating decisions made in 1995 and 1996 to award a second GSM telephone licence to a consortium (hereafter called ESAT Digifone) which comprised Telenor (the Norwegian State telephone company), ESAT Telecom Ltd (a company representing the interests of Mr. Denis O'Brien) and IIU Nominees Ltd (hereafter called IIU) a company beneficially owned by the applicant who is a well-known and successful business man.

A competition for a second GSM licence was announced on 2^nd March, 1995. Six applications were received and assessed by an evaluation team (hereafter called the evaluation team) established by the Department of Transport, Energy and Communications (hereafter called the Department). The evaluation team was headed by a senior official of the department Mr. Martin Brennan.

In the course of the evaluation process each applicant (of whom ESAT Digifone was one) was afforded the opportunity to make an oral presentation to the evaluators. During its oral presentation it was asserted on behalf of ESAT Digifone that it comprised a consortium in which Telenor and ESAT Telecom Ltd. each had a 40% interest with the remaining 20% interest divided equally between four financial institutions (hereafter called the financial institutions), Advent International, Investment Bank of Ireland, Standard Life Ireland and Allied Irish Banks Ltd.

The report of the evaluation team recommended that the second GSM licence should be awarded to ESAT Digifone subject to the negotiation of satisfactory licensing terms. The result of the competition and the identity of the winner was announced by the (then) Minister for Transport, Energy and Communications, Mr Lowry on 25^th October, 1995.

From the 8^th August, 1995 the applicant was involved in negotiations with a view to becoming a member of the Consortium. These negotiations were informally concluded on the 18^th September, 1995. Subsequently the applicant formally became a member of the Consortium on the 29^th September, 1995 on terms that the interests of both Telenor and ESAT Telecom Ltd would each be reduced to 37.5% with the applicant becoming the owner of the remaining 25% interest in the Consortium.

Neither the evaluation team nor the Department were notified of the negotiations between 8^th August, 1995 and 29^th September, 1995 which culminated in the reconfiguration of the share interests in ESAT Digifone and the acquisition by the applicant of a 25% interest in the consortium although a letter was sent to the Department on 29^th September, 1995 from IIU for the attention of Mr. Martin Brennan in the following terms:

"Dear Sirs,

We refer to the recent oral presentation made by the Consortium to the Department in relation to their proposal for the second GSM cellular mobile telephone licence. During the course of the presentation there was a detailed discussion in relation to the desirability of equity finance to the Consortium from Communicorp and a number of institutions.

We confirm that we have arranged underwriting on behalf of the Consortium for all of the equity (i.e. circa 50%) not intended to be subscribed for by Telenor. In aggregate the Consortium now has available equity finance in excess of £58 million.

We do not foresee any additional need for equity, however, we are confident that if such equity is required we will not have difficulty in arranging it.

Yours faithfully,

Professor Michael Walsh.

Managing Director"

That letter was rejected and returned by the Department on the grounds that the evaluation team was not at liberty to receive any new information from applicants at that time.

It has been suggested on behalf of the applicant that this letter comprised notice to the evaluation team or to the Department of the applicant's acquisition of an interest in ESAT Digifone.

When the result of the competition was announced on 25^th October, 1995 the evaluation team and the Department believed that the beneficial ownership of ESAT Digifone remained vested in Telenor, ESAT Telecom Ltd (40% each) and the financial institutions (20%).

At the commencement of the particular stage or module of its enquiry which is relevant to these proceedings, counsel on behalf of the Tribunal, on the 12^th December, 2002, read an Opening Statement which include the following observations:

"The Tribunal will inquire, in the course of its public sittings, as to what were the true facts concerning ESAT Telecommunications Holdings Limited's financial position as at and prior to 16^th May, 1996. It will then be a question for the Tribunal as to the extent to which the Department was aware of those facts. If the Department were not aware of the true facts, the Tribunal will inquire as to whether this was due to any intervention on the part of or to influence exerted by Michael Lowry or, to the extent to which it is relevant, whether it was due to some other factors.

The Tribunal will also wish to enquire into the true facts surrounding the identity of the consortium, that is to say the identity of the applicants for the licence and the true facts surrounding the ownership proposals as required by paragraph three of the RFP. In this connection, the following questions will need to be examined in the course of the Tribunal's public sittings.

A. Who are the true applicants behind the ESAT Digifone application?

B. Were the true facts concerning the identity of the applicants known to the evaluators, and if those facts were not known to the evaluators, was this due to any intervention on the part of or any influence by Michael Lowry?

C. (1) What were the true facts concerning the ownership of either the ESAT Digifone consortium or the licensee proposed by that consortium, and were those facts truly stated in the application evaluated by the evaluators as part of the GSM competition process?

(2) What was the state of knowledge of the evaluators concerning those facts as at the date of receipt of the application, at any time during the course of the evaluation process, at the date of the announcement of the result, at any time during their licence negotiations and at the date of the issue of the licence?

D. If the true facts were not known to the evaluators, the Tribunal will once again wish to inquire whether this was due to any act or intervention on the part of or due to any influence exerted by Mr. Michael Lowry. If it appears that at any time the true facts, whether in relation to the financial position of ESAT Telecom Holdings Limited or Communicorp or the facts surrounding the question of ownership or identity of the applicant set out above were in fact known to any of the evaluators, the Tribunal will wish to inquire whether due consideration was given to these facts in the carrying out of the evaluation and/or in the negotiation of the licence conditions and/or in the issue of the licence and whether, once again, the conduct of any of the evaluators was influenced by or was the result of any intervention on the part of Mr. Michael Lowry.

E. There seems to be no disputing the fact that Mr. Dermot Desmond, through his vehicle IIU, was a member of the consortium to which the licence was issued. As part of the inquiries mentioned above the Tribunal will wish to inquire whether Mr. Dermot Desmond or IIU, although a part of the consortium to which the competition result was awarded, that is the licence issued, in fact avoided the evaluation process and whether this was a result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry."

The applicant has been granted legal representation at the Tribunal. His legal advisors receive, on his behalf, a daily transcript of the public proceedings of the Tribunal. They enjoy the right to attend the Tribunal on his behalf at any time and to cross-examine witnesses. If absent during particular testimony and alerted by perusal of the daily transcript to any matter in which the applicant may have an interest the applicant or his legal advisors are permitted to attend and to cross-examine witnesses or to require that witnesses be recalled for the purpose of cross-examination. They may also make such submissions as they deem appropriate to the respondent in relation to such testimony during or after the completion of the testimony itself.

On the 25^th November, 2002 the applicant's solicitor received from the Tribunal eighteen large files containing documents deemed to be relevant to the stage or module of the inquiry upon which the Tribunal was about to embark. Eight of those files contained memoranda of the intended evidence to be adduced by some sixty four witnesses. Some additional similar documents were later furnished to the applicant's solicitor. Included in the files sent to the applicant's solicitor on the 25^th November, 2002 was a document entitled "Memorandum of Intended Evidence of Mr. Greg Sparks".

This five page document described intended evidence to be adduced by Mr. Greg Sparks who was programme manager to the then Tanaiste between December 1994 and June 1997.

The final page of that memorandum referred to the applicant in the following terms:

"I understood that ESAT Digifone at that time was not financially strong. I acknowledged that with the licence it would have no problem raising the capital but I would have thought that its current financial status was relevant. I went on to say that I also had heard rumours that Mr. Dermot Desmond was a shareholder and queried had his involvement been considered in the light of the Johnson Mooney and O'Brien report that been issued earlier by Ruairi Quinn while Minister for Enterprise and Employment. The Tanaiste was not aware of these points. However in his opinion the Anderson report had given a clear recommendation and felt recommendation had been accepted".

It has been acknowledged on behalf of the parties hereto that the "Johnson Mooney and O'Brien Report" referred to in the Memorandum was the Final Report on Chestvale Properties and Limited Hoddle Investments Limited (hereafter called the Glackin Report) which was published on the 1^st July, 1993 by Mr John A Glackin solicitor who had been appointed by the Minister for Industry and Commerce as an Inspector under Section 14 (1) of the Companies Act, 1990 to investigate certain matters relating to the ownership of property in Ballsbridge in Dublin.

No reference was made to the Glackin Report in any other "Statement of Intended Evidence" furnished to be the applicant's legal advisors on the 25^th November, 2002 or thereafter.

The Glackin Report contained findings which were critical of the applicant and his apparent association with two companies connected with the purchase of the property which was the subject of the investigation.

Mr. Martin Brennan, who headed the evaluation team, testified in public sessions of the Tribunal between the 17^th December, 2002 and the 13^th February, 2003. On intermittent occasions during the three day period commencing on the 3^rd February, 2003 Mr. Brennan was questioned as to his knowledge and understanding of the Glackin Report.

In summary he indicated in evidence that whilst he was generally aware of the events surrounding the Glackin Report he had not read it and had been told by a colleague that it had made no findings or recommendations which were adverse to the applicant. At the time of its publication in July of 1993 he was moving with his family from Brussels back to Ireland and felt he might have missed much of the publicity surrounding the publication of the Report.

If he was aware that the Report had "... made negative findings which bore on the decision being taken" he said he would have taken those findings into account in his capacity as leader of the evaluation team.

When the direct examination of Mr. Brennan was concluded on the 11^th February, 2003 Mr. Shipsey on behalf of the applicant cross-examined Mr. Brennan but at no time made any reference to the Glackin Report. He did not question the relevance of that report to the considerations of Mr. Brennan as head of the evaluation team and he made no submissions to the head of the Tribunal as to its relevance to the Tribunal's inquiry.

By letter dated the 11^th February, 2003 Ms. Helen Rackard on behalf of the applicant wrote to Mr. John Davis who is the solicitor on behalf of the respondent complaining about the conduct of the proceedings of the Tribunal "as evidenced by the examination of Mr Martin Brennan" and protesting, inter alia,"... that such an irrelevant and unfair line of examination was permitted".

The letter contained further complaints relative to the use of allegedly pejorative and objectionable language by counsel for the Tribunal in relation to the applicant and indicated an intention to apply to the High Court "...should there be any further repetition of that unfairness or manifest procedural error on the part of the Tribunal".

Mr John Loughrey, who was the Secretary of the Department, commenced his testimony before the Tribunal on the 14^th February, 2003.

On the 24^th February, 2002 Mr. Davis replied to Ms. Rackard's letter in the following terms:

"Dear Ms. Rackard,

I refer to pervious correspondence in connection with the above and in particular for your letter of 11^th February last.

I wish to confirm that during the course of Mr. John Loughrey's evidence, which resumes tomorrow, further reference will be made by counsel to the Tribunal to the Glackin Report. Your client's counsel will of course have an opportunity to examine Mr. Loughrey in relation to this matter should you so wish. Furthermore your client will have every opportunity to deal with this matter during the course of his own evidence.

In the mean time I trust that you will appreciate that lines of examination pursued by the Tribunal with witnesses are entirely a matter for the Tribunal itself.

Yours sincerely

John Davis,

Solicitor to the Tribunal."

By letter dated the 28^th February, 2003 Ms. Rackard replied to Mr. Davis in the following terms:

"We refer to your fax received after 4.00 pm on the evening of the 24^th February.

We must complain yet again of the failure by the Tribunal to afford us fair procedures, specifically in this instance giving us less than twenty four hours notice of the fact that the Glackin Report was again to be referred to by your counsel in the course of examination of a witness. In our earlier correspondence we have drawn your attention to our concerns about this and other matters and we would have expected in the interest of fair procedures, that adequate notice would have been given. It is extremely fortunate that our counsel was available on such short notice, as otherwise we would have been forced to object to the Tribunal covering matters that affected our client. We fully accept the Tribunal's right to determine the line of examination of witnesses provided it is done within the terms of reference.

Yours sincerely

Helen Rackard

Michael Houlihan & Partners …"

A separate letter was sent by Ms. Rackard to Mr. Davis on the same date making further complaints including a complaint in relation to an observation made by the respondent to a personal contact which the applicant apparently made with the respondent. This letter has not been relied upon by either party in support of any contention in these proceedings.

Mr. Loughrey, in evidence, told the Tribunal that at the time when the licence was awarded he had read the Glackin Report and knew of its determinations and criticisms.

He felt that he was entitled to rely upon a written confirmation by a reputable accountancy firm, Messrs Farrell Grant Sparks, that IIU was "in a position to make this investment and to make the underwriting commitment". He was aware that IIU was beneficially owned by the applicant.

He had been informed that the Department was seeking legal advice as to the implications of a reconfiguration of the share interest in ESAT Digifone but was unaware that explicit legal advice had not been received when the licence was awarded.

At the conclusion of his direct testimony Mr. Loughrey was cross-examined in detail by Mr. Shipsey on behalf of the applicant and by the legal representatives of other interested parties.

On the 7^th May, 2003 evidence was adduced before the Tribunal by Mr. Fintan Towey who was a senior member of the evaluation team. Shortly before he concluded his evidence for that day he was questioned briefly on the contents of the Glackin Report. By reason of what has been described as a "technical glitch" the final portion of the transcript for that day was not reproduced. Consequently an examination of the transcript for that day would not have disclosed a reference to the Glackin Report. No evidence was adduced during the course of these proceedings indicating whether or not the applicant's legal advisors examined the transcript for that day either for the purpose of scanning it for reference to the Glackin Report or for any other purpose.

When the testimony of Mr. Towey resumed on the 8^th May, 2003, he told the Tribunal that he had not read the Glackin Report but had a general awareness that there had been such a report.

In response to an objection by counsel on behalf of the Department to further questioning of Mr. Towey on the contents of the Glackin Report, (on the grounds of relevance and speculation) the respondent observed:

"I can't see how it's speculation. He is reciting the finding of an authorised officer engaged by the Minister at the time, senior Solicitor in this term and I have already held that whilst of course I am not going to embark on any possible findings in relation to this matter until all relevant evidence has been heard and until all persons have had an opportunity to make submissions. I would effectively be holding that this Tribunal is operating in cloud cuckoo land if I did not hear this portion of the evidence. I think it is unnecessary that Mr. Towey be pressed to advance a view on that, because it is self evident that the matters that do stand as a matter of record did make certain findings. We'll proceed on that basis."

Counsel on behalf of the Tribunal then agreed that he would proceed on the basis of the existence of the Glackin Report as a matter of fact and of Mr. Towey's "general awareness" of the report.

On two occasions IIU was described during questioning by counsel as "this crowd IIU" and on one occasion it was described by a witness "this outfit IIU".

On another occasion counsel on behalf of the Tribunal referred to IIU as "Mr. Dermot Desmond's Outfit".

In the course of the questioning of witnesses counsel on behalf of the Tribunal referred to the need to guard against the possibility of the licence "falling into undesirable hands…". He continued:

"Q – well if I could and I'm not suggesting that anyone here involved in this consortium falls into this category.

A – yeah

Q – but you couldn't have it falling into the hands of organised crime, for example?

A- if that had arisen, I have no doubt that we would have"

In a similar context the name of an infamous Columbian drug dealer was mentioned and the respondent intervened to make it clear that this reference was not to be construed as having any implication or association with any person having an interest in the Tribunal and the enquiry upon which it was engaged.

On the 12^th May, 2003 a matter came before this Court by way of an application for leave to seek the relief sought herein.

THE APPLICANT'S CLAIM

The applicant's overriding complaint is that the respondent has caused or permitted witnesses appearing before him to be questioned in detail and (he says) repeatedly upon the contents of the Glackin Report. His complaint (and his claim herein) is twofold in nature:

1. He claims that the Glackin Report and its contents are not relevant to the Tribunal of Inquiry with which the respondent has been charged.

2. Alternatively, if the Glackin Report is relevant to the Tribunal of Inquiry then he claims that the respondent has acted in breach of the principles of natural justice and has failed to provide him with fair procedures by neglecting or refusing to give the applicant or his advisors any or any adequate notice of the likelihood that particular witnesses, called to testify before the Tribunal, would be examined with reference to the Glackin Report.

He says that, in consequence, he has been compromised in his capacity to vindicate his reputation and his good name.

Relevance

It is claimed on behalf of the applicant that the Tribunal is not investigating any alleged wrongdoing on the part of the applicant. That fact is acknowledged on behalf of the respondent. However the applicant contends that the jurisdiction of the Tribunal to investigate the award of a licence is not a "…freestanding..." jurisdiction but is limited to an investigation as to whether or not the licensing process was compromised in some fashion by Mr. Michael Lowry.

It is claimed that the evaluation of the applicant's suitability as the owner of an interest in ESAT Digifone was not and is not relevant to the question of whether or not the licensing process was compromised by Mr. Michael Lowry.

It is pointed out that at the time when the evaluation process was completed in September and October of 1995 the evaluation team was unaware that the applicant had acquired an interest in ESAT Digifone so that any consideration of the Glackin Report would not have arisen. It is argued that although on the 16^th May, 1996 when the license was awarded the evaluators and the Department were aware that the applicant had acquired his interest in ESAT Digifone Mr. Martin Brennan, leader of the evaluation team and Mr. Towey had not read the Glackin Report and accordingly their failure to consider it could not have been caused by reason of any intervention on the part of Mr. Michael Lowry.

Mr. Hogan S.C., on behalf of the applicant, relies upon the decision of Kearns J. in Finnegan v. Flood [2002] 3 I.R. 47 as authority for the proposition that in appropriate cases this court may intervene in the affairs of Tribunals of Inquiry of the kind with which the respondent is charged and grant relief of the type which is sought herein provided that "…the court… [is ]... satisfied that there… [has]... been a want of fair procedures or an allegation of wrongful conduct outside the terms of reference of the Tribunal".

On behalf of the respondent it is contended that the jurisdiction of the Tribunal is not and cannot be restricted in the manner claimed on behalf of the applicant. Mr. Gleeson argues that the fundamental purpose of tribunals of the kind which the respondent has undertaken is to allay public concern in respect of urgent matters which cause grave public disquiet. He says that in the instant case it was and remains necessary for the Tribunal to inquire into and examine each and every part of the evaluation process and of the licensing process in order to establish either that there has been actual wrongdoing or that the concerns expressed have been misplaced. He says that it was relevant to the work of the Tribunal to investigate prima facie evidence indicating that ESAT Digifone, to whom the licence was awarded, was evaluated for the purposes of the competition on the mistaken basis that it was then partly owned by the financial institutions. He says that the Tribunal is not merely entitled but is under an obligation to investigate this apparent anomaly not because it necessarily suspects impropriety or wrongdoing but for the purpose of allaying public concern in relation to the mode and efficacy of the evaluation and licensing processes.

It is well settled that this Court has jurisdiction to grant relief in cases where Tribunals of Inquiry (whether statutory in origin or otherwise) are shown to have acted unlawfully or in excess of jurisdiction.

In this case it is claimed that the respondent admitted evidence which was both irrelevant to its work and damaging to the applicant's reputation and good name. The applicant seeks to restrain the respondent from admitting such evidence in the future and to require the respondent to produce all transcripts, notes and other records of the evidence to this court for the purpose of being quashed.

Similar considerations arose in the case of Bailey v. Flood (Unreported, High Court, 6^th March, 2000; Supreme Court, 14^th April, 2000) where the applicants sought to restrain the Sole Member of a similar Tribunal from requiring them to testify during public sittings of the Tribunal. Their principal claim was that their proposed examination in evidence was not relevant to the work of the Tribunal under the terms of reference and was an unwelcome invasion of their privacy and an intrusion into their private affairs. Morris P. adopted the following test from R. v. Ministry of Defence, ex parte Smith [1996] QB 517, at p. 554, as the test which a court should apply when reviewing the decision of an administrative body which impinges upon constitutionally guaranteed rights:

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save were 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."

Morris P. continued:

"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 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."

This passage from the judgment of Morris P. was expressly adopted with approval by the Supreme Court (Denham J.) in the same case.

In relation to the issue of relevance in the instant case the court must determine:

(a) whether the evaluation of the applicant as the owner of an interest in ESAT Digifone is relevant to the work of the Tribunal having regard to its terms of references and if so

(b) whether the decision by the respondent to permit the examination of witnesses as to the contents of the Glackin Report amounted to an unreasonable and disproportionate exercise by him of his discretion.

(a) The jurisdiction of the Tribunal is to be found within its terms of reference. The respondent has been charged inter alia to;

" …inquire urgently into…and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance…whether any substantial payments were made… to Mr. Michael Lowry…in circumstances giving rise to a reasonable inference that the motive for making payment was connected with any public office held by him or had the potential to influence the discharge of such office… [and]…whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making [such] payment…"

In 1995 and 1996 Mr. Lowry was the Minister having responsibility for the award of the second GSM licence. That licence was awarded to ESAT Digifone on the 16^th May, 1996.

On the undisputed facts which have given rise to these proceedings the applicant is the owner of a significant interest in ESAT Digifone and during the course of the evaluation process up to and including 25^th October, 1995 when the identity of the winner of the competition for the licence was announced, the evaluation team was under the impression that the interest in ESAT Digifone which had been acquired by the applicant on 29^th September, 1995 was in fact owned by the financial institutions.

The award of the second GSM licence was capable of conferring very substantial benefits upon the successful applicant. During the evaluation process in 1995 and when the licence was awarded in October 1996 Mr Lowry was the Minister responsible for the award of that licence. An investigation into the award of the licence was and is clearly within the Tribunal's terms of reference. It was perfectly reasonable for that investigation to include an inquiry into and a detailed analysis of the evaluation process which resulted in the recommendation that the licence should be awarded to ESAT Digifone. Such an inquiry necessarily involved the collecting of evidence from members of the evaluation team which made the recommendation.

When the Tribunal discovered (as it did) that, at the time when it made its recommendation that the licence should be awarded to ESAT Digifone, the evaluation team was under an erroneous impression as to the true ownership of that consortium, its terms of reference not only entitled it but probably obliged it to investigate how that had occurred. That further investigation necessarily required the enquiry referred to in the Opening Statement read by counsel on behalf of the Tribunal on 12^th December 2002, into:

"Whether Mr. Dermot Desmond or IIU, although a part of the consortium to which the competition result was awarded, that is the licence issued, in fact avoided the evaluation process and whether this was a result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry".

It follows that the question of whether the applicant or his company IIU avoided the evaluation process was and is and remains relevant to the work of the Tribunal under its terms of reference. It follows further that an evaluation of the applicant is similarly relevant to the work of the Tribunal.

Although the applicant has been aware since as early as the 12^th December, 2002 that the Tribunal intended to conduct an inquiry into whether or not he "in fact avoided the evaluation process…" he has not, prior to these proceedings, sought to contend that such an inquiry is outside the Tribunal's terms of reference. I believe that he was correct not to do so.

I should add, however, that were it to be proven that the applicant had in fact avoided the evaluation process then that would not necessarily give rise to an implication or finding of wrong doing on his part. A number of innocent and perfectly reasonable explanations may be offered as to how such an avoidance might have occurred. This court is not concerned with such matters. It is concerned only with whether or not the line of inquiry which was clearly announced on behalf of the Tribunal on the 12^th of December, 2002 and then commenced was within the Tribunal's remit and terms of reference. This court is quite satisfied that it was.

(b) The applicant contends further that the Tribunal's terms of reference did not permit it to hear evidence of the contents of the Glackin Report.

He says that the report is not relevant to the question of whether or not the licensing process was compromised by Mr. Lowry and he argues that the decision of the respondent to permit the questioning of witnesses as to its content was an unreasonable and disproportionate exercise by the respondent of his discretion which has compromised the applicant's capacity to vindicate his constitutional right to his reputation and good name.

In Bailey v Flood (Unreported, High Court, 6^th March, 2000; Supreme Court, 14^th April, 2000) Morris P. discussed similar considerations in the context of an applicant's right to privacy observing that "any inquiry of a tribunal into the affairs of a person is likely to infringe upon his or her personal rights".

Later he continued;

"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."

Mr. Gleeson likened the Tribunal's inquiry to a detailed examination of the electrical wiring system of a building. He said that the object is to establish that (hopefully) everything is in order and that there is no cause for concern. However, for that to be possible, the examiner must "crawl along every wire" investigating every switch, socket and junction box before being in a position to "tick every box" and to certify that the system is sound and in good working order. I believe that Mr. Gleeson's analogy is apposite.

Applying it to the instant case it follows that the respondent was entitled to follow every line of inquiry which fell within the Tribunals terms of reference until he had either discovered facts which gave rise to concern or alternatively established that the concern voiced was groundless.

It seems to me that the applicant's former business transactions and dealings were and remain relevant to the question as to whether or not the applicant avoided the evaluation process and "whether this was the result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry".

The Glackin Report comprised a report of an investigation into former business dealings of the applicant and transactions in which he was involved. It follows, from the foregoing, that it was and remains relevant to the work of the Tribunal. It does not seem unreasonable to me that the Tribunal might have an interest on the contents of that report. Neither does it seem unreasonable to me that the Tribunal might wish to enquire from members of the evaluation team as to whether or not the contents of the Glackin Report would, if known to the evaluation team, have had a bearing or influence upon the recommendation which they made to award the licence to ESAT Digifone.

However, the opinion of the court is not relevant to this issue. The court may not interfere with the exercise by the respondent of his discretion on substantive grounds unless satisfied "…that it is beyond the range of responses open to a reasonable decision maker…" in the sense outlined in R v Ministry of Defence ex parte Smith [1996] QB 517 as adopted by Morris P. in Bailey v Flood.

In the instant case the Court may not interfere with the exercise by the respondent of his discretion to admit the Glackin Report in evidence or to permit the questioning of witnesses as to its contents unless the Court is satisfied that by so doing the respondent has interfered with the constitutionally guaranteed rights of the applicant in such an unreasonable and disproportionate manner as to require intervention. I am not so satisfied.

I have already held that the Glackin Report was and is and remains relevant to the work of the Tribunal and its terms of reference. It was published on the 1^st July, 1993, and has now been in the public domain for some ten years. It is a document of record which is freely available to the members of the public who wish to purchase or peruse it.

Whilst accepting the need to balance the rights of the applicant on the one hand with the public interest on the other I have no doubt that the achievement of such a balance does not require or entitle the Court to interfere with the exercise by the respondent of his discretion in this case.

Fair Procedures

It is contended on behalf of the applicant that the principles of natural justice required that he should receive prior notification if it was anticipated that references would be made to the Glackin Report during the examination of particular witnesses called to testify before the Tribunal. It is claimed that since the Glackin Report was critical of the applicant, public references to it damaged the applicant's reputation and good name and the extent of that damage was likely to increases with repetition.

Mr. Hogan, on behalf of the applicant, argues that if the Tribunal is not investigating any alleged wrongdoing on the part of the applicant then the Glackin Report is not relevant to its investigation.

He says that if it is alleged that the applicant actively avoided evaluation or concealed the fact that he was the owner of an interest in ESAT Digifone from the evaluation team then such an allegation amounted to an allegation of wrongdoing sufficient to entitle the applicant to notice of the kind for which he contends. Consequently it is claimed that the failure to notify the applicant or his legal advisors that it was the intention of the Tribunal to question Mr. Martin Brennan and Mr. Fintan Towey in relation to the Glackin Report amounted to a failure on the part of the respondent to protect and vindicate the applicant's constitutional right to fair procedures.

The respondent rejects this contention and argues that the failure on the part of the evaluation team to assess or evaluate the bid by ESAT Digifone on the basis that the applicant was the owner of a substantial interest in that consortium is a fact which the Tribunal could not and cannot ignore. Mr. Gleeson says that the Tribunal has an obligation (in addition to an entitlement) to pursue a line of inquiry which will allow it to satisfy itself that this failure to evaluate was bona fides and is reasonably explicable. He contends that by pursuing this line of inquiry the Tribunal is not alleging any wrongdoing on the part of the applicant. He points out that the Glackin Report is an official report of a statutory investigation into a matter of considerable public interest which has been in the public domain for almost ten years. He says that the respondent has not made any decision or order which so affects the applicant's rights as to entitle him to notice of the kind which he seeks and he says that the respondent has not adopted any procedures which restrict the applicant or prevent him from vindicating the rights to which he refers.

He points to the rights enjoyed by the applicant to attend at public hearings of the Tribunal, to give evidence, to examine witnesses, to cross-examine witnesses and to recall witnesses, and to the fact that the applicant's legal advisors have been provided with extensive documentation and daily transcripts in relation to the work of the Tribunal. He says that the applicant is seeking a procedure which has not been made available to any other person or party having an interest in the Tribunal and is accordingly requiring the respondent to adopt unequal standards in relation to the Tribunal's procedures.

He points out that inquiries of the kind with which the respondent is charged necessarily expose citizens to the risk of having aspects of their lives discussed which would otherwise remain private and to the risk of having baseless allegations made against them (see Haughey v. Moriarty [1999] 3 IR 1).

He argues that whilst the principles of natural justice and fair procedures cannot be extended to require notification of the kind sought by the applicant he was, in fact, clearly notified (a) of the line of inquiry which the Tribunal intended to pursue with respect to the applicant (by way of the Opening Statement on 12^th December, 2002) and (b) of an intention to make references to the Glackin Report (by way of the Memorandum of Intended Evidence of Mr. Greg Sparks).

The rules of natural and constitutional justice require that fair procedures must be followed during the conduct of Tribunals of Inquiry of the kind with which the respondent has been charged (see M.Q. v Gleeson [1998] 4 IR 85 and Haughey v Moriarty [1993] 3 I.R. 1).

A person who is charged with wrongdoing must be given notice of what is alleged against him and he must further be given the opportunity to be heard in his defence. Similarly orders or decisions of a tribunal which affect the rights or interests of persons or parties appearing before such tribunals should not be made without notice to such persons or parties. They must be given the opportunity to be heard prior to the making of such decisions or orders so that they may make such submissions or representations as they may deem appropriate.

Fair procedures (and indeed the rules of natural and constitutional justice) are not set out exhaustively in any charter, statute or document. They have perhaps been best described by Henchy J. in Kiely v Minister for Social Welfare [1997] I.R. 267 in the following terms:

"This Court has held, in cases such as In re Haughey [1971] I.R. 218, that Article 40, s. 3, of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. Tribunals exercising quasi-judicial functions are frequently being allowed to act informally – to receive unsworn evidence, to act on hearsay, to depart from the rules of evidence, to ignore courtroom procedures, and the like – but they may not act in such a way as to imperil a fair hearing or a fair result. I do not attempt an exposition of what they may not do for, to quote the frequently-cited dictum of Tucker L.J. in Russell v Duke of Norkolk [1949] 1 All E.R. 109, 118, 'There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject- matter that is being dealt with and so forth.'"

In the instant case the respondent was and remains responsible for the protection and vindication of the constitutional and other rights of a large number of persons who have been and will be called to testify before him or whose interests may be affected by decisions and findings made or procedures adopted by him in the course of his inquiry. The rights involved include those of Mr. Lowry, the applicant, several senior officials of the evaluation team and of the Department, the owners of the remaining interests in ESAT Digifone and a very large number of witnesses and other persons.

On the 12^th of December 2002, by way of an Opening Statement read by counsel on behalf of the Tribunal the applicant was given express notice that in the forthcoming module of the Tribunal the respondent intended to inquire, inter alia, into the question of whether or not the applicant had avoided the evaluation process and whether this was the result of any intervention on the part of Mr. Michael Lowry.

This clear notice was recorded in the transcript with which the applicant's advisors were furnished pursuant to the procedures adopted by the respondent.

Having received such notice the applicant then enjoyed the right to attend public hearings for the Tribunal either personally or by way of his legal advisors. He duly exercised that right and was permitted to examine and cross-examine witnesses. He was entitled to apply to have witnesses recalled for the purpose of cross-examination if he so required. His legal advisors were entitled to intervene for the purpose of making submissions as and when they deemed appropriate and the applicant was himself entitled to give evidence in support or in rebuttal of evidence adduced by other witnesses. Together with other persons having an interest in the Tribunal or whose interests might be affected by the work of the Tribunal he was provided with extensive documentation including written statements outlining the expected testimony of all the witnesses who were due to testify at the public hearings of the Tribunal.

In summary he contends that in addition to the right to be represented, to be heard, to receive a daily transcript, statements of the intended testimony and other documentation, he was entitled to receive advance notification of intended oral examination or cross-examination of witnesses by counsel for the Tribunal where there was a likelihood that such examination or cross-examination would include references to the Glackin Report. However, no such request was made to the respondent, either by way of submission or otherwise, by his senior counsel who appeared, fully instructed, before and addressed the respondent in respect of a variety of matters before and after the first reference, in evidence, to the Glackin Report.

The applicant also relies upon the letter of Mr. Davis dated the 24^th of February, 2002 to Ms. Rackard wherein Mr. Davis indicated

"I wish to confirm that during the course of Mr. John Loughrey's evidence, which resumes tomorrow, further reference will be made by counsel for the Tribunal to the Glackin Report. Your client's counsel will of course have an opportunity to examine Mr. Loughrey in relation to this matter should they so wish. Furthermore your client will have every opportunity to deal with this matter during the course of his own evidence.

In the meantime I trust that you will appreciate that lines of examination pursued by the Tribunal with witnesses are entirely a matter for the Tribunal itself"

It is argued that this letter should be construed as comprising an undertaking on the part of the respondent to provide the applicant with notification of the kind for which he contends.

It has not been suggested in these proceedings or elsewhere that any person or party having an interest in the work of the Tribunal for which the respondent is responsible has ever sought or received advance notification of the contents of the intended oral examination or cross-examination by counsel for the Tribunal of intended witnesses.

By her letter dated the 11^th February, 2003, Ms. Rackard, on behalf of the applicant, made many complaints, including a complaint that the applicant had not been notified that it was intended to refer in evidence to the Glackin Report. However, since the 12^th December, 2002, the applicant was aware that at some stage his apparent avoidance of the evaluation process would be the subject of the Tribunal's inquiry and by the 12^th February, 2003, (when Ms. Rackard wrote her letter) he was well aware that that stage had been reached.

The rules of natural and constitutional justice required that the respondent should provide fair procedures in equal measure to all of the persons or parties having an interest in the work and findings of the Tribunal. The applicant was not and is not entitled to preference over any other such persons or party.

The provision of prior notice of the contents of the oral examination or cross-examination by counsel for the Tribunal of witnesses called to testify before it has not been sought by such parties. For practical purposes, almost certainly it could not have been provided. I do not accept the contention advanced on behalf of the applicant that the letter dated the 24^th February, 2002, from Mr. Davis can be construed as containing an undertaking on the part of the respondent to provide the applicant with such notice and I find it difficult to accept that either he or his advisors relied upon that letter as containing such an undertaking.

It follows from the foregoing that I do not find that the respondent has acted in breach of the principles of natural justice or that he failed to provide the applicant with fair procedures.

Insofar as it has been suggested that some references in evidence to the applicant and to his company were pejorative in nature I make no finding as to the nature of those references. However, I am satisfied that they do not, either in the context in which they were uttered or otherwise, constitute adequate grounds for the reliefs sought.

It follows from all of the foregoing that I am refusing the reliefs which have been sought.