High Court of Ireland Decisions

[2004] IEHC 362

THE HIGH COURT

[2004 No. 817 J.R.]

BETWEEN:

DENIS O'BRIEN

Applicant

AND MR. JUSTICE MICHAEL MORIARTY (The Sole Member of the Tribunal of Inquiry into Payments to Messrs. Charles Haughey and Michael Lowry)

Respondent

JUDGMENT of Mr. Justice Herbert delivered the 26^th day of November, 2004

Five of the Reliefs sought in this Application for leave to seek Judicial Review, challenge on various grounds the decision of the Sole Member of the Tribunal of Inquiry into payments to Mr. Charles Haughey and Mr. Michael Lowry, to proceed to, or to continue with, public hearings by the Tribunal of evidence relating to the Doncaster Rovers Football Club Limited Transaction. Two other Reliefs relate to the interview of a Mr. Christopher Vaughan, in London by Counsel for the Tribunal on 9^th September, 2004. Declarations are sought, that the carrying out of this interview showed bias on the part of the Respondent and was a conscious and deliberate violation of the Applicant's rights under Article 40 of the Constitution and, was an infringement of his rights to fair procedures, to natural and constitutional justice and, of his rights under the European Convention on Human Rights as incorporated into Irish Law.

A further relief is sought in the form of a Declaration that the procedures adopted by the Respondent and the delay by the Tribunal in concluding its Inquiry have further infringed the Applicant's rights to fair procedures, to natural and constitutional justice and, his rights under the European Convention on Human Rights as incorporated into Irish Law. The Applicant seeks additionally, relief by way an Order of Mandamus directing the Respondent to report back forthwith to the Clerk of Dail Eireann. It is claimed that the failure of the respondent to so report for a period of seven years is in breach of the Terms of Reference establishing the Tribunal and a breach of the Applicant's rights to fair procedures, to natural and constitutional justice, and to his rights under the European Convention on Human Rights as incorporated into Irish Law. The Applicant also seeks Orders by way of injunctive relief requiring the respondent to furnish him with all documents furnished to, and all correspondence with the Tribunal together with all documents and memoranda generated by the Tribunal in respect of conversations, meetings or consultations with persons during the course of its private inquiries into what have been termed the, "Money Trail" and the, "G.S.M.", Modules and the Doncaster Rovers Football Club Limited, (hereinafter referred to as D.R.F.C.L.) Transaction.

It was accepted during the hearing of this Application, that following upon the Judgment of this Court (O'Neill, J.,), delivered on 7^th July, 2004 in the matter of O'Callaghan v. Judge Alan Mahon and Others [2004] 7^th July (unreported), and pending the decision of the Supreme Court on Appeal taken against that decision that large quantities of documents in respect of the D.R.F.C.L. Transaction were furnished on a strictly confidential basis by the Tribunal to the Solicitors for the Applicant. The Court was advised by Counsel for the Respondent that the Tribunal would abide by the decision of the Supreme Court in determining whether or not to furnish the, "Money Trail" and the, "G.S.M." Module documents to the Applicant.

At the hearing of this Application the grounds principally advanced by Counsel for the Applicant as a basis for obtaining leave to seek Judicial Review were the reliefs sought at sub paras. (iv) and (i) in that order, of para. D of the Statement required to ground the Application for Judicial Review dated the 17^th September, 2004. These are as follows:-

(iv) "A Declaration that the decision of the Respondent to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club in the knowledge that neither Christopher Vaughan nor Kevin Phelan is available to give evidence before the Tribunal, has denied the Applicant of his constitutional right to cross examine the witnesses who have given material and documents to the Tribunal that the Tribunal considers relevant to the issue of the purported 'connection' of Michael Lowry with the purchase of Doncaster Rovers Football Club and is a breach of the Applicant's rights to fair procedures and to natural and constitutional justice and his rights under the European Convention on Human Rights as incorporated into Irish Law."

(i) "An Order of Certiorari by way of an Application for Judicial Review quashing the decision of the Respondent to proceed the public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported 'connection' of Michael Lowry to the said purchase on the grounds that the said decision is ultra vires the Terms of Reference of the Respondent's Tribunal and is unreasonable in that no sufficient evidence exists justifying proceeding to public hearings."

In the case of MacDonnell v. Brady and Others [2001] 3 IR 588, the former Chief Justice, Keane C.J., at page 598 of the Report adverted to the fact that, "the threshold for granting leave [to seek Judicial Review] in the first instance is relatively low". In the decision in "G" v. The Director of Public Prosecutions and Judge Kirby [1994] 1 I.R. 374, the Supreme Court per the former Chief Justice Finlay, C.J., at page 378 and per Denham, J., at 382 defined the burden of proof on a Applicant for leave to seek Judicial Review as requiring that such Applicant establish, "that the facts averred in the [verifying] Affidavit would be sufficient, if proved, to support a stateable ground for the relief sought by way of Judicial Review [and] that on those facts an arguable case in law can be made that the Applicant is entitled to the relief which he seeks." In the Application of this test in the context of the instant Application, I am satisfied that the Court must also carefully bear in mind what was held by the Supreme Court in its decision in Goodman International and Another v. Hamilton [1992] 2 I.R. 543, where at p. 592 of the report the former Chief Justice, Finlay J., stated that: –

"It would, as I have indicated, require a very clear breach of an unambiguous constitutional provision for the courts to consider impeding such an inquiry, which is of such manifest public importance."

There was no inter partes hearing within the strict meaning of that term of the Leave Application in this case. The Application was made ex parte in accordance with the provisions of Order 84 r. 20 (2) of the Rules of the Superior Courts. There is no statutory requirement, as for example in s. 5 (2) B of the Illegal Immigrants (Trafficking) Act, 2002 or s. 82 of the Local Government (Planning and Development) Act, 1992 that the Application in the instant case should be made on notice to the Tribunal and to the Attorney General representing the Public Interest. I did not accede to the Application by Counsel for the Respondent that the Application for leave to seek Judicial Review should be deemed to be a hearing inter partes. Over nine days of extended sittings the Court undoubtedly had the benefit of detailed inter partes argument on all aspects of the Leave Application. However, this was in the context of the Application for a stay of further public proceedings by the Tribunal in respect of the D.R.F.C.L., Transaction pursuant to the provisions of Order 84 r. 20 (7) of the Rules of the Superior Courts or alternatively, for injunctive relief to the same effect pending the hearing and determination of the Application for Judicial Review.

In the case of The Garda Representative Association v. Ireland, [unreported] December 18^th, 1987, Supreme Court, it was held that the principles set out in the case of Campus Oil Limited v. The Minister for Industry and Energy (No. 2) [1983] I.R. 88, as governing the grant of interlocutory injunctions applied also where such injunctions were sought during the course of Applications for Judicial Review. It was accepted on all sides during the course of argument in the instant Application, that for the purpose of determining whether the Applicant had raised a fair, substantial, bona fide question for determination, the Respondent and the Notice Party would necessarily have to address the same material and issues as would be relevant to considering whether the facts averred, if proven, would support a stateable ground for the relief sought and, that on those facts, the Applicant could make an arguable case in law for that relief, without having to establish that the tests were the same or did not differ in any material respect.

In these circumstances, though Counsel for the Respondent opened the decisions in, Mass Energy Limited v. Birmingham City Council [1994] ENV., L.R. 298; R. v. Cotswold District Council, ex parte Barrington [1998] 75 P. and C.R. 515; R. (Portland Port Limited) v. Weymouth and Portland Borough Council [2001] E.W.H.C. Admin. 1171; R. v. Derbyshire County Council ex parte Woods [1997] JPL 958 and, Gorman v. The Minister for the Environment [2001] 1 IR 306, the question of whether the burden on the Applicant at this leave stage in the instant case was to establish not merely an arguable case, but a case that was likely to succeed or to show a reasonably good chance of success if given leave to seek Judicial Review, was not fully argued before me. Perhaps in those instances where an Application for leave to seek Judicial Review is made on Notice to the Respondent, especially where this is done by reason of an express statutory requirement, it might be considered just and appropriate that the threshold to be surmounted by the Applicant should be higher than when the Application is made ex parte for the reasons expressed in the several English Decisions cited by Counsel for the Respondent. However, in the instant Application where there is no statutory requirement for such Notice, where the Court did not exercise its inherent jurisdiction to direct that the Application be made on Notice to the Respondent and the Notice Party and, where the Application for leave to seek Judicial Review was made ex parte and the right of Counsel for the Respondent and the Notice Party to be heard was conceded by Counsel for the Applicant solely in relation to the Application for a stay or an injunction, in my judgment it would be unjust and unfair for the Court to impose any higher test on this Applicant for leave to seek Judicial Review than the test laid down in "G" v. The Director of Public Prosecutions and Judge Kirby [1994] 1 I.R. 374, to which I have already referred.

A preliminary point was taken by Counsel for the Respondent and also by Counsel for the Notice Party, that there had been such delay on the part of the Applicant in making this Application, for which no satisfactory explanation and no objectively justifiable excuse were advanced in the Verifying Affidavit, that the Applicant was thereby debarred from obtaining relief by way of Judicial Review. Counsel for the Respondent relied upon the decision of the Supreme Court in the case of The State (Cussen) v. Brennan and Others [1981] I.R. 181 at 196, per Henchy, J.

It appears from the Affidavit Evidence, which was not disputed, that by a letter dated 10^th January, 2003, the Solicitors for the Applicant advised the Tribunal that Mr. Denis O'Brien had instructed them to inform the Tribunal that Mr. Michael Lowry was not involved in the D.R.F.C.L. Transaction and that Mr. O'Brien refuted any suggestion otherwise. By a letter dated 13^th January, 2003 the Tribunal wrote to the Solicitors for the Applicant in relation to an Article by a well known journalist Mr. Colm Keena which was published in the Irish Times Newspaper on 11^th January, 2003. The headlines introducing the Articles stated, "Lowry linked to £4m deal by letter: Lawyer believed former Minister was 'totally involved' and 'deal involved sale of Doncaster soccer ground: a letter which links Michael Lowry to a £4mStg property deal in 1988 was used in attempt to squeeze money out of Denis O'Brien". The letter referred to was a letter written by Mr. Christopher Vaughan to Mr. Michael Lowry and dated 25^th September, 1998. The text of this letter was reproduced in the Article and it included the following sentence:-

"I had not appreciated your total involvement in the Doncaster Rovers Transaction and I am therefore enclosing a copy of my Completion Letter which was sent to Kevin Phelan, Paul May and Aidan Phelan on Completion."

The Irish Times Newspaper Article stated that:-

"A complaint was lodged with the police in London last year by representatives of Mr. Denis O'Brien following the production of a letter to Mr. Michael Lowry during a mediation hearing involving Doncaster Rovers Football Club Limited."

The letter from the Tribunal to the Solicitors for the Applicant requested, "at your earliest convenience and certainly within the next seven days",

1. Details of the events which gave rise to such complaint.

2. All matters and considerations which prompted the making of a complaint.

3. The precise nature of the complaint made.

4. The steps taken by the authorities to investigate such complaint.

5. The outcome of such complaint or of any investigation instigated on foot of such complaint.

The Tribunal also wishes to obtain copies of all documents in your client's power, possession or procurement regarding the events surrounding the complaint, the complaint made, the steps taken to investigate such complaint and the outcome of such complaint."

From Affidavit Exhibits opened to the Court during the hearing of this Application, the writer of the letter of 25^th September, 1998, Mr. Christopher Vaughan, Solicitor of Northampton, England, resolutely maintains that this letter was sent to Mr. Michael Lowry at his address in County Tipperary. However, it is stated in correspondence to the Tribunal that Mr. Michael Lowry never saw the letter of 25^th September, 1998 until he saw it reproduced in the Irish Times Article.

By a letter dated 21^st January, 2003 the Solicitors for the Applicant answered the questions raised by the Tribunal and stated inter alia that:-

"The complaint is set out in the attached draft witness statement of Denis O'Brien Senior prepared for City of London Police Officer. The relevant events relate to a dispute over a lease and retentions held to cover potential liabilities on the closing of the Doncaster Rovers Football Club Transaction. Denis O'Brien Senior has been instructing Peter Carter-Ruck and Partners, Solicitors London."

Also included with this letter was an aide memoir prepared by Mr. John Ryall an Accountant in this Jurisdiction acting on behalf of Westferry Limited, the corporate vehicle through which the Applicant purchased the D.R.F.C.L., interest, who had attended with Mr. Denis O'Brien Senior at the Mediation in London in September, 2002 at which the events giving rise to the complaint occurred, together with copies of e-mails exchanged by Ms. Ruth Collard of Peter Carter-Ruck and Partners Solicitors, London with the City of London Police and a copy of the witness statement of Denis O'Brien Senior furnished by him to the City of London Police on 12^th November, 2002.

In this witness statement Mr. Denis O'Brien Senior sets out that the company called Westferry Limited, incorporated in the Isle of Man and part of the O'Brien Family Trust purchased the shares in Doncaster Rovers Football Club Limited from Dinard Trading Limited and Shelter Trust Anstalt. The purchase was completed on 18^th August, 1998 and Mr. Vaughan was Solicitor for Westferry Limited. Proceedings were commenced in the Queens Bench Division on the High Court in England in relation to the Lease and the Retention Money. This dispute was resolved through mediation on 27^th September, 2002. In the week prior to 27^th September, 2002 Mr. Denis O'Brien Senior had been faxed a copy of the letter dated 25^th September, 1998 from Mr. Christopher Vaughan to Mr. Michael Lowry. Paragraph eight of a Draft Witness Statement of Denis O'Brien Senior is in the following terms:-

"8. I received a message via Michael Lowry's accountant, Denis O'Connor, which I was told originated from the representatives of Dinard, Ken Richardson and Mark Weaver, that a copy of this letter [25^th September, 1998 Vaughan to Lowry] would find its way to people I would not want to see it unless I settled the litigation in respect of D.R.F.L. on terms which were very favourable to Dinard. I understood this to mean that the letter would be sent to the Moriarty Tribunal. Denis O'Connor informed me that information about this letter had come from Kevin Phelan. This individual had acted on our behalf in the purchase of D.R.F.L, but had subsequently become hostile to us following a dispute over fees, and has been in communication with Ken Richardson and Mark Weaver, the representatives and agents of Dinard."

By a letter dated 22^nd January, 2003 the Tribunal requested from the

Solicitors for the Applicant, a wide range of documents including a copy of the file of Peter Carter–Ruck and Partners Solicitors, in relation to the complaint to the City of London Police and, "all documents in the power, possession or procurement of your client in relation to the acquisition, funding and holding of the Doncaster Rovers Property including copies of the files of all your clients' professional advisers." By a letter dated 18^th August, 2003 to the Solicitors for the Applicant, the Tribunal complained that though the Solicitors for the Applicant had stated in a letter dated 29^th January, 2003 that they had written to various persons in relation to the Doncaster Rovers Transaction requesting copies of their Files, the Tribunal had received no further response to their request made on 22^nd January, 2003.

Letters continued to pass back and forth between the Tribunal and the Solicitors for the Applicant. The tribunal was pressing urgently for information, (such as the source of the funds employed in the purchase of the Doncaster Rovers Football Club Limited shares), and for documents and statements in relation to the D.R.F.C.L. Transaction. The Solicitors for the Applicant explained the delay in furnishing these by reference to such matters as long absences abroad on business commitments by their client Denis O'Brien Junior and also by Denis O'Brien Senior and the fact that Denis O'Brien Senior was represented by a different firm of Solicitors, L.K. Shields & Partners, Solicitors, and problems relating to the provision of waivers of solicitor and client confidentiality.

In a long and detailed letter dated 12^th May, 2004 sent by the Tribunal to the Solicitors for the Applicant requesting information from their Client in relation to the D.R.F.C.L. Transaction. The Tribunal stated as follows:-

"In addition to the matters raised with your client and to which the Tribunal is awaiting responses, the Tribunal is seeking your clients' comments on and details of your clients' knowledge of the contents of further documents and information which had been assembled by the Tribunal.

If the Sole Member determines that the Tribunal should proceed to hear evidence in relation to these matters at public sittings, I anticipate that the comments and information provided by your client in response to this letter would, subject to the agreement of your client, form the subject matter of Statements or Memoranda of Intended Evidence".

This letter referred to information made available to the Tribunal by Mr. Denis O'Connor who acted as Accountant to Mr. Michael Lowry. It stated that Mr. O'Connor had told the Tribunal, during the course of its private investigation into the D.R.F.C.L. Transaction that, Mr. Denis O'Brien Senior had contacted him prior to the mediation and had asked him if he had heard rumours about Mr. Michael Lowry's involvement in the D.R.F.C.L. project. Mr. O'Connor replied in the affirmative. The Tribunal requested the Applicant's comments in relation to this matter and requested information from the Applicant on six other related matters.

The letter went on to seek the comments of the Applicant in relation to an Attendance on the file of Peter Carter-Ruck and Partners made by Ms. Ruth Collard a partner in that Firm, of a meeting in London with Mr. Denis O'Connor on 10^th September, 2003 arranged by Westferry Limited.

This document is headed, "Attendance Note", Fee Earner Ruth Collard, Date-10^th September, 2002, subject-Doncaster Rovers Football Club - Contract Dispute Matter No. - 12027. The first paragraph of the Attendance states, "RC attending meeting with Craig Tallents and Denis O'Connor. Discussing the position in the litigation generally with C.T. prior to DOC's arrival. It then goes on to record that Denis O'Connor said that he had been trying to sort out on Denis O'Brien's behalf the position with Kevin Phelan. He said that he was also representing Mr. Michael Lowry who was been investigated as part of the Moriarty Tribunal proceedings in Dublin and that Mr. Kevin Phelan had made various threats to cause trouble for Mr. Michael Lowry. The fifth paragraph of the Attendance is in the following terms:-

"DOC said that the upshot of all his discussions with DOB and KP had been that he had been asked if he would be prepared to meet Ken Richardson and Mark Weaver and at DOB's request a meeting had been arranged, first in Manchester and then in Dublin. DOC said from all he had heard if his discussions with KR and MW to settle the matter were not successful and it went to mediation, the mediation would fail. He said that the other side were laughing at us and that they would ensure that the mediation did not succeed and would then take the matter to Court. They wanted to cause the maximum embarrassment for DOB and for others including ML. RC asked how they could cause any embarrassment to ML, as, so far as she was aware, he had no connection to the proceedings. DOC said that ML did have a connection and that he had been in the room when discussions had taken place between KP and KR regarding the lease. RC said no one had ever suggested that to her previously".

This letter of 12^th May 2004 from the Tribunal to the Solicitors for the Applicant concluded as follows:-

"The Tribunal intends to conclude the investigative phase of its work into this matter in very early course and, if appropriate, to proceed to public sittings in the very near future. Bearing this time constraint in mind, you might kindly contact me as soon as you have instructions to indicate whether your client intends to respond and if so when I can expect his response".

By a letter dated 27^th May, 2004 the Tribunal stated to the Solicitors for the Applicant that it had heard nothing from the Applicant in relation to its requests in the letter of 12^th May, 2004. The letter then continued as follows:-

"The Tribunal has now determined that it is appropriate to proceed to hear evidence at public sittings of the Tribunal pursuant to para. (e) of its Terms of Reference in relation to the Doncaster Rovers Football Club Project and the connection of Mr. Michael Lowry with the project … The Tribunal expects to commence public sittings shortly after the commencement of the new legal term and anticipates hearing evidence into this matter from in or about the middle of next month. It is likely that the Tribunal will wish to hear evidence from your client towards the end of June or early in the month of July..."

By letter of 20^th May last you requested the Tribunal to identify the specific issues that the Tribunal intends putting to your client in the course of the balance of his examination I confirm that as of now, the matters that the Tribunal wishes to raise with your client in the course of his resumed examination are as follows:

1. [Not relevant to this Application for leave to seek Judicial Review].

2. [Not relevant to this Application for leave to seek Judicial Review].

3. "The matters on which your client has already been asked to comment in connection with the Doncaster Rovers Football Club Project and any further matters that arise in the meantime, either from inquiries made by the Tribunal or from evidence heard in the course of public sittings."

In response, by a letter dated 31^st May, 2004 the Solicitors for the Applicant inter alia, asked what allegations were being made by the Tribunal against the Applicant in respect of the D.R.F.C.L. Transaction. They requested copies of all (their emphasis) material furnished to the Tribunal in the course of its private investigation into the D.R.F.C.L. Transaction in particular, all correspondence with all notes or memoranda relating to meetings with and all documents furnished by, Christopher Vaughan, Kevin Phelan, Michael Lowry, Denis O'Connor, Ruth Collard, Ken Richardson, Mark Weaver, Denis O'Brien Senior, John Ryall and any other person since the setting up of the Tribunal. They also sought confirmation that each of the above persons were available to give evidence. By letter dated 9^th June, 2004 the Tribunal wrote to the Solicitors for the Applicant addressing these matters. In the context of this Application for leave to seek Judicial Review, a response at paragraph numbered "3" of this letter is important. It states as follows:-

"3. In the penultimate paragraph of your letter, you have asked the Tribunal to confirm whether a number of named persons will be available to give evidence at the Tribunal's public sittings. The Tribunal is not yet in a position to confirm whether those persons will be available to give evidence. You will receive public sittings books in early course and the identity of the persons whom the Tribunal intends to call to give evidence will be apparent from those books although you will appreciate that there may be additional witnesses called by the Tribunal from whom Statements or Memoranda are not included within the public sittings books. As is the Tribunal's practice, you will of course be furnished with Statements or Memoranda in advance of any such witness being called to give evidence."

By a letter also dated 10^th June, 2004 the Solicitors for the Applicant referred to the letters from the Tribunal dated 27^th May, 2004 and 9^th June, 2004 stating that it had determined to proceed to hear evidence at public sittings in relation to the D.R.F.C.L. Project and the letter then continued as follows:-

"We are extremely concerned at the decision of the Tribunal to proceed to public hearings on a matter which quite clearly relates to the private business activities of our client and which has no connection with the Terms of Reference past by Resolution of Dail Eireann and Seanad Eireann on 11^th September and 18^th September, 1997 respectively…"

This letter concluded as follows:-

"We are also of the strong opinion that the Tribunal's actions in proceeding to investigate these private matters is a breach of the rights that our client enjoys under the European Convention on Human Rights as implemented into Irish Law by the European Convention on Human Rights Act, 2003.

Our client reserves his right to seek to challenge the decision of the Tribunal to commence public hearings on this matter on the grounds that it is ultra vires its Terms of Reference.

We look forward to hearing from you in respect of this letter as a matter of urgency and certainly before any public hearings should commence."

This letter of 10^th June, 2004 is the first occasion since 13^th January, 2003, the date on which the Tribunal sought, "within the next seven days", full details of all the events, matters and considerations which gave rise to the complaint to the City of London Police by Mr. Denis O'Brien Senior on 12^th November, 2002, when the Applicant claims that the Tribunal is acting Ultra Vires its Terms of Reference in inquiring into the D.R.F.C.L. Transaction. This claim, first made after almost sixteen months, that the Tribunal was acting outside the scope of its Terms of Reference, is all the more extraordinary when considered in the light of what is stated in the Tribunal's letter in response dated 11^th June, 2004, which states as follows:-

"The involvement of your client in Doncaster Rovers was touched on in the course of the Tribunal's public sittings on a number of occasions. From the information available to the Tribunal at that time and from the evidence given in the course of those proceedings the Transaction appeared to be one with which Mr. Lowry had no connection and in which he had no involvement whatsoever."

The replying letter from the Solicitors for the Applicant dated 15^th June, 2004 is nine pages long and concludes with the repeated assertion that the Tribunal is acting outside its Terms of Reference and if it should proceed to public hearings, "our client will consider all options available to him including his right to challenge in the High Court without further notice to you, the Tribunal's decision to act outside its Terms of Reference."

By a letter dated 9^th July, 2004, stamped received on 14^th July, 2004 the Solicitors for the Applicant wrote to the Tribunal stating, inter alia as follows:-

"The Tribunal's letter of 7^th July re-asserts its belief that it is appropriate to inquire into the Doncaster Rovers Transaction because of, 'the potential involvement' of Mr. Lowry. It appears from the Tribunal's letter that the Sole Member is not prepared to alter his determination to proceed to public sittings in respect of the Doncaster Transaction, and 'the connection (if any) of Mr. Michael Lowry'. If this remains the position of the Tribunal then our Client reserves his position as regards his entitlement to apply to the High Court for the appropriate relief."

Though further lengthy and argumentative correspondence continued between the Solicitors for the Applicant and the Tribunal, in my judgment after 7^th July, 2004 the Applicant could not rationally or reasonably have believed that the Respondent could be persuaded or pressured to alter his decision of the 27^th May, 2004, "to proceed to hear evidence at public sittings of the Tribunal pursuant to para. (e) of its Terms of Reference in relation to the Doncaster Rovers Football Club Project and the connection of Mr. Michael Lowry with the project…"

The fact that following on the judgment of O'Neill, J., on 7^th July, 2004 in the case of O'Callaghan v. Judge Alan Mahon (above cited), the Respondent, as was his undoubted right, on 12^th July, 2004 notified the Solicitors for the Applicant that the commencement of the public hearings by the Tribunal in respect of the D.R.F.C.L. Transaction would be postponed from 14^th July, 2004 until 15^th September, 2004 did not in my judgment in anyway alter the obligation of the Applicant to seek, the so often threatened, reliefs of this Court "promptly" as required by Order 84 rule 21 (1) of the Rules of the Superior Courts and as emphasised over and over again by the Supreme Court and by this Court.

From 7^th July, 2004, right up to 15^th September, 2004, other than during the entire month of August when no correspondence appears to have been exchanged, the Applicant through his Solicitors continued to argue with the Tribunal. By letter dated 26^th July, 2004 the Solicitors for the Applicant expressed to the Tribunal their client's disappointment and concern that the Tribunal proposed to recommence its sittings only on 15^th September, 2004, some eleven days before the 7^th year of its establishment. A similar letter was written to the Clerk of Dail Eireann, "for the purpose of seeking to have someone hold the Tribunal accountable for its actions". Following upon the decision of the High Court (O'Neill, J.,), on 7^th July, 2004 a great deal of correspondence passed between the Solicitors for the Applicant and the Tribunal in relation to the documents in respect of which Orders are now sought at sub. paras. (viii) and (ix) of the Reliefs sought in the Applicant's Statement required to ground Application for Judicial Review.

The argument as to whether investigation by the Tribunal of the D.R.F.C.L. Transaction is within the Terms of Reference of the Tribunal is a straight forward matter of construing that Document. In my judgment the issue of whether the investigation by the Tribunal into the D.R.F.C.L. Transaction, was in private session or at a public hearing is irrelevant to the question of whether it was authorised by its Terms of Reference to embark on any investigation at all of the D.R.F.C.L. Transaction. I am satisfied that the decision to investigate the D.R.F.C.L. Transaction was taken by the Respondent and clearly signalled by the Tribunal to the Solicitors for the Applicant by the letter of 13^th January, 2003 or even on the much earlier occasions when, as set out in the letter from the Tribunal dated 11^th June, 2004, the Tribunal in public sittings on a number of occasions, had touched on the involvement of the Applicant and Mr. Michael Lowry in the D.R.F.C.L. Transaction. No Application by way of Leave to seek Judicial Review was made on any of these occasions arguing that the Respondent was acting in excess of the Terms of Reference of the Tribunal. For almost sixteen months after 13^th January, 2003 the Tribunal, to the knowledge of the Applicant as is abundantly clear from the correspondence to which I have already referred, was permitted by the Applicant, without challenge on this ground, to conduct a time consuming, difficult, detailed and I think I may properly infer, costly, investigation of the D.R.F.C.L. Transaction in private.

I find that no explanation has been offered and no objectively acceptable excuse has been advanced to account for the failure of the Applicant to challenge, as he now seeks to do, the right of the Tribunal to carry out any investigation into the D.R.F.C.L. Transaction on the grounds that any such investigation was ultra vires its Terms of Reference. One may only surmise that the Applicant was convinced or hoped that the matter would never proceed to a public hearing stage and therefore determined to allow the now alleged ultra vires investigation to continue. In my judgment the Applicant has been guilty of such extraordinary and unexplained delay and failure to act promptly, quite apart altogether from his failure to apply within the periods prescribed by Order 84 rule 21 (1) of the Rules of the Superior Courts, that he could not reasonably be said to have any arguable case why such failure to act promptly should be disregarded in the circumstances of this Application.

If, however, I should be in error as to the date when the grounds for Application first arose and, if only the clearest and most emphatic indication of an intention to commence public hearings of the Tribunal in relation to the D.R.F.C.L. Transaction could be held to establish such a date, in my judgment that date must be deemed to have arrived when the letter from the Tribunal, dated 27^th May, 2004, reached the Solicitors for the Applicant. But even if one went further, and considered, against the whole weight of the evidence, that there may have been some doubt as to the intention of the Respondent with regard to the commencement of the public sittings in relation to the D.R.F.C.L. Transaction until 9^th July, 2004 in my judgment, even measured from that date there is no reasonably arguable case that the Applicant acted "promptly" in applying for leave to seek Judicial Review on the ground that the Respondent was acting outside the Terms of Reference of the Tribunal in investigating the D.R.F.C.L. Transaction. On 9^th July, 2004, the Solicitors for the Applicant, referring to a letter from the Tribunal dated 7^th July, 2004 wrote as follows, "it appears from the Tribunal's letter that the Sole Member is not prepared to alter his determination to proceed to public sittings in respect of the Doncaster Transaction…"

The Notice of Motion in this Application is dated 17^th September, 2004. If, as argued by Counsel for the Applicant, the Application must be considered as made by way of motion ex parte within the provisions of Order 84 rule 20 (2) of the Rules of the Superior Courts, then, the Application was not made until it was moved before the Court on 21^st September, 2004 (see K.S.K. Enterprises Limited v. An Bord Pleanala [1994] 2 I.L.R.N. 1).

Apart altogether from any consideration of a failure to act promptly, I am satisfied that there is no likelihood on the merits of the case, that a Court hearing an Application for Judicial Review might arguably consider that the investigation, either private or public by the Tribunal of the D.R.F.C.L. Transaction was outside the terms of para. (e) of the Terms of Reference of the Tribunal. The Tribunal is thereby enjoined to inquire urgently into, report to the Clerk of the Dail and make such findings and recommendations as it sees fit in relation to:-

"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."

In my judgment, the interpretation given by the Respondent to the term, "public office" in para. (e) of the Terms of Reference as including membership of the Houses of the Oireachtas is correct. This ruling was made by the Respondent on 22^nd May, 2001 at pp. 75 and 76 of the transcript of the proceedings of the Tribunal for that day. The preamble to the Ethics in Public Office Act, 1995 refers to, "Holders of certain public offices (including members of the Houses of Oireachtas)". I believe that the Court should presume that when settling the Terms of Reference of the Tribunal in 1997 the members of the Dail and of the Seanad were conscious of this Legislation, especially as specific reference in made to it in para. (e) itself. It was accepted during the hearing of this Application that Mr. Michael Lowry was a Member of Dail Eireann in 1998.

Counsel for the Respondent referred to the decision of an English Court of Appeal in the case of The King v. Whitaker (1914) 3 KB 1283. At page 1296 of the Report, Lawrence, J. delivering the judgment of the Court held that, "a public officer" is an officer who discharges any duty in the discharge of which the public are interested more clearly so if he is paid out of a fund provided by the public. If taxes go to supply his payment and the public have an interest in the duties he discharges, he is a public officer". In that case the Court was dealing with the position of a Colonel in command of an army regiment who was indicted for conspiracy to receive a bribe in his capacity as a, "public and ministerial officer".

It is particularly to be noted that by para. (g) of the Terms of Reference of the Tribunal in the instant case, the Tribunal is required to inquire into:-

"Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him…"

The same clear distinction between "public office" and "Ministerial office" appears at paras. (c) and (d) of the Terms of Reference as regards Mr. Charles Haughey. There is merit also in the argument, made by Counsel for the Respondent, that when the Sole Member adopted this particular interpretation of the term "public office" no objection was taken by or on behalf of the Applicant. In my judgment, the interpretation of the Terms of Reference of the Tribunal is uniquely part of the function of the Respondent, and the Superior Courts should be slow to dissent from his Rulings.

Paragraph (e) of the Terms of Reference of the Tribunal requires that the Tribunal inquire, "whether any substantial payments were made directly or indirectly to Mr. Michael Lowry… during any period when he held public office…". In clear contra distinction to the provisions of para. (a), where, in the case of Mr. Charles Haughey, the inquiry is expressly limited to, "any period when he held public office commencing on 1^st January, 1979 and thereafter up to 31^st December, 1996…", para. (e) contains no such express time limitation.

In my judgment there is nothing in the language of para. (e) which would constrain the Court to infer that the intention of the Houses of the Oireachtas was to limit the inquiry by the Tribunal to some period prior to 18^th September, 1997, the date of the Resolution by Seanad Eireann. I do not believe that the recital in the second paragraph of the Terms of Reference referring to, "serious public concern arising from the Report of the Tribunal of Inquiry (Dunnes payments)", which established that irregular payments were made to certain persons who were members of the Houses of the Oireachtas between 1^st January, 1986 and 31^st December, 1996, is to be read as in any manner limiting the timeframe of the Inquiry to be undertaken by the Tribunal to this period. This second paragraph does no more than furnish the historical basis upon which the Houses of the Oireachtas deemed it necessary to establish the present Tribunal of Inquiry. In my judgment, the use of the past tense in the phrase, "during any period when he held public office", does not limit the Inquiry to the period prior to the passing of the Resolution establishing the Tribunal by Seanad Eireann on 18^th September, 1997. The fact that by its Terms of Reference the Tribunal is required, "to inquire urgently into" the matters indicated and to complete its inquiry, "in as economical a manner as possible and that the earliest date consistent with a fair examination of the matters referred to it", does not support the argument that it cannot be concerned with events such as the D.R.F.C.L. Transaction occurring after 18^th September, 1997.

In my judgment, a right of the Respondent to investigate is, in the case of Mr. Michael Lowry, limited only by reference to those periods when Mr. Michael Lowry held "public office" as above defined and provided, "sufficient evidence exists" as this phrase is defined by the Supreme Court in the case of Redmond v. Flood [1999] 3 I.R. 79 at 95, to justify public inquiry by the Tribunal subject to the right of the Houses of the Oireachtas by further Resolutions to fix a date within which the Tribunal must Report. For this reason, I reject the submission of the Applicant that the Inquiry by the Tribunal is so unlimited in scope and time as to amount to unreasonable oppression of the Applicant and a breach of his constitutional right to fair procedures. There is clearly no question of the Tribunal being able to investigate the business affairs of the Applicant or of Mr. Michael Lowry "forever" as was suggested by Counsel for the Applicant.

I therefore refuse leave to the Applicant to seek Judicial Review on ground (i) of Reliefs Sought in the Statement required to ground Application for Judicial Review.

Adverting again to the letter from the Solicitors for the Applicant to the Tribunal dated 9^th July, 2004, where they noted that the Sole Member was not prepared to alter his determination to proceed to public sittings in relation to the D.R.F.C.L. Transaction, the Solicitors for the Applicant went on to say:-

"More significantly Mr. Vaughan will not be giving evidence at the Tribunal and, consequently our client may be denied the opportunity of having Mr. Vaughan's explanation in public. Instead, his correspondence may be dissected by the Tribunal for the purpose of seeking to undermine that explanation."

The correspondence here referred to is, in particular, a letter dated 6^th March, 2003 from Mr. Christopher Vaughan to the Tribunal where he states inter alia that:-

"I met Kevin Phelan and Michael Lowry on 24^th September. We had a general discussion about the Mansfield property. I believe that Kevin Phelan broadened the discussion by raising queries on other projects which he was involved in. I would have certainly raised with Kevin Phelan the issue as to the outstanding matters in D.R.F.C. and the need to have a meeting with Aidan Phelan to consider those matters and I gave him a copy of my letter dated 23^rd September, 1998 which I had unsuccessfully attempted to fax to Aidan Phelan that previous day.

Michael Lowry was present throughout the whole of those discussions and I formed what I subsequently discovered to be a totally incorrect view, that because of the frank manner in which Kevin Phelan was discussing the outstanding issues relating to D.R.F.C., Michael Lowry was somehow involved in the D.R.F.C. Project.

Michael Lowry and Kevin Phelan then wanted to go on to have a meal somewhere but I returned to my home. It was arranged for Michael Lowry to come to my office the following day to finalise some of the details relating to the Mansfield property and for me to speak to the Vendor's Solicitor in respect of the property. Following Michael Lowry arriving at my office on the morning of 25^th September we examined the Mansfield property file. I contacted the Vendor's Solicitors as to issues that had arisen from our discussions as to the purchase of that property.

No one else travelled in my car to Leicester other than myself and Michael Lowry.

So far as I can recall the discussions in the car related to the general property market in England, Sport and Irish Politics.

Based on my incorrect assumption from the previous days meeting the outstanding issues relating to D.R.F.C. were again touched on again by me. It is my recollection that Michael Lowry offered to assist me in resolving those outstanding issues, by agreeing to try to arrange a meeting with Aidan Phelan whom he led me to believe he knew.

I have found no handwritten notes on the D.R.F.C. file in relation to the meeting on 24^th September or the discussion in the car on the following day, which is not surprising as Michael Lowry had come to Northampton to discuss the Mansfield property.

In hindsight it does seem unusual that I believed Michael Lowry to be involved in D.R.F.C., as throughout the whole of the discussions and negotiations relating to the acquisition of D.R.F.C. over a period of some nine months, I had never heard Michael Lowry's name mentioned nor met him with Aidan Phelan or any other person in connection with the acquisition of D.R.F.C.

When I returned to my office on the afternoon of 25^th September, in an attempt to try to move matters along (as can been seen from the denor of my letter) I wrote the letter of the 25^th September to Michael Lowry.

Over the course of the next days (which was the weekend), I spoke to Kevin Phelan who enquired on me as to how my journey to Leicester with Michael Lowry had gone. I outlined to Kevin Phelan that we had discussed the purchase of commercial property in England in general and the Mansfield property in particular which I understood had been Michael's main purpose in visiting me in Northampton.

I must have also told Kevin Phelan that I though that Michael Lowry could assist in resolving the outstanding issues in D.R.F.C. and that I had written the letter of 25^th September to Michael Lowry. I had also written a letter to Aidan Phelan advising him that I considered that Michael Lowry could arrange a meeting.

Kevin Phelan then informed me that Michael Lowry was not connected in any way whatsoever to D.R.F.C. Project and that it would be very embarrassing for him if Aidan Phelan had been informed by me that any documentation had been sent to a third party (Michael Lowry).

Kevin Phelan asked me to write to Aidan Phelan to clarify the situation and as it was at this stage that I informed Kevin Phelan that although the letter had been dictated and typed it had not gone through my fax machine, neither had it been posted and a copy of that letter which has a line through it still exists on my file, the top copy I assume was destroyed by me.

As regards the involvement of Paul May, he was brought into the D.R.F.C. Project by Kevin Phelan to be responsible for the day-management of the Football Club. I do not believe that Michael Lowry had any involvement with Paul May or with the management of the Club".

As of 9^th July, 2004 therefore, it is beyond doubt that the Applicant clearly understood that the Respondent was determined to hold public sittings of the Tribunal in relation to the D.R.F.C.L. Transaction and, that Mr. Christopher Vaughan would not be giving evidence at those sittings. Though threatened by the Solicitors for the Applicant in this letter of 9^th July, 2004, no Application was in fact made for leave to seek Judicial Review on this ground until 17^th September, 2004 or, if the date when the Application was moved before the Court is the relevant date, the 21^st September, 2004.

In the course of a long letter from the Tribunal to the Solicitors for the Applicant dated 14^th July, 2004 it is stated that:-

"The fact that Mr. Vaughan has refused to make himself available as a witness, although it appears that he continues to be involved with your client's interests, is a matter to be borne in mind in evaluating his explanation" [of the letter of 25^th September, 1998 and his letter of 6^th March, 2003].

By a letter dated 3^rd September, 2004 the Solicitors for the Applicant wrote to the Tribunal asking it, inter alia to clarify the following:-

"1. Is it still the Tribunal's intention to commence public hearings into the Doncaster Rovers Transaction on 15^th September next?

2. If it is the Tribunal's intention to commence public hearings into the Doncaster Rovers Transaction what witnesses does the Tribunal propose to call?

3. If it is the Tribunal's intention to commence public hearings into the Doncaster Rovers Transaction what witnesses connected with or purportedly connected with, the Transaction are unavailable for the proposed public hearings?"

Once again, in this letter, an Application to the High Court for appropriate reliefs was threatened, if the Tribunal unfairly proceeded to public hearings in respect of the Doncaster Rovers Transaction in the absence of relevant witnesses. No evidence was advanced at the hearing of this Application that there had been any change of circumstances with regard to the indicated non attendance of Mr. Christopher Vaughan since 9^th July, 2004.

This letter from the Solicitors for the Applicant dated 3^rd September, 2004 was answered by a letter dated 6^th September, 2004 from the Tribunal to the Solicitors for the Applicant, which stated, inter alia as follows:-

"It is the Tribunal's intention to commence public hearings into the Doncaster Rovers Transaction on 15^th September next. The Tribunal proposes to call a number of witnesses, all of whom have already been referred to in correspondence and they are as follows:-

1. Ms. Ruth Collard;

2. Mr. Denis O'Brien, Senior;

3. Mr. Denis O'Brien;

4. Mr. Aidan Phelan;

5. Mr. John Ryall;

6. Mr. Denis O'Connor;

7. Mr. Michael Lowry.

A number of witnesses, notwithstanding that the Tribunal has endeavoured to obtain their agreement to come, have indicated an unwillingness to make themselves available. As they are outside the jurisdiction, they cannot be compelled to attend. While of course one cannot rule out a change of mind on the part of anyone of these individuals, as things stand neither Mr. Christopher Vaughan nor Mr. Kevin Phelan are likely to be available. This, as I have already pointed out, will not prevent the Tribunal from relying on Mr. Christopher Vaughan's file which has been made available to the Tribunal by Solicitors for Mr. Denis O'Brien Senior. You will no doubt be well aware that Mr. Phelan resides and conducts business, partly in Northern Ireland and partly in England and that Mr. Vaughan, of course, carries on his practice in England."

By a letter dated 10^th September, 2004, "statements or memoranda of the evidence which the Tribunal anticipates will be given" by the witnesses mentioned in the witness list, [next above mentioned], or where none such are available, memoranda of queries and answers or where no answers were received, of the queries the Tribunal would intend to raise during the public sittings, were furnished by the Tribunal to the Solicitors for the Applicant.

It was contended on behalf of the Applicant that until this Witness List and these Witness Documents were received it would have been inappropriate and premature for the Applicant to have sought the relief which he sought on 17^th September, 2004 or, if the date of Application is the appropriate date, 21^st September, 2004. By a letter dated 13^th September, 2004 from the Solicitors for the Applicant to the Tribunal, noting that the Tribunal purported to commence public hearings into the matter of the D.R.F.C.L. Transaction in two days, the Solicitors for the Applicant adverted to the fact that, "the two most crucial witnesses, Mr. Christopher Vaughan and Mr. Kevin Phelan are not contained in the Tribunal's witness list". [furnished on 6^th September, 2004].

It was further contended on behalf of the Applicant that until the Completion of the Opening Statement of the Tribunal in relation to the D.R.F.C.L. Transaction on 15^th September, 2004 it would have been premature for the Applicant to have made this Application on the basis that Mr. Christopher Vaughan and Mr. Kevin Phelan would not be witnesses at the public sittings and the Tribunal had made no arrangements to obtain their evidence outside the jurisdiction by way of a Commission or other procedure for taking cross-border evidence.

I am unable to accept this argument. In my judgment, considering the decision in "G" v. The Director of Public Prosecutions and Judge Kirby, (1994) (above cited) the date when facts sufficient to support a stateable ground for an Application for relief by way of Judicial Review based on a claim that the Tribunal would not or could not call two witnesses whom the Applicant alleges to be crucial, namely, Mr. Christopher Vaughan and Mr. Kevin Phelan at its proposed public sittings commencing on 15^th September, 2004 and, had not made any arrangements to obtain their viva voce evidence by some other means, first arose on 9^th July, 2004 or 68 clear days before the application for leave to seek Judicial Review was made. Indeed, it could reasonably be argued that the date should be 15^th June, 2004, when with reference to the determination of the Tribunal to proceed to hear evidence at public sittings regarding the D.R.F.C.L. Transaction the Solicitors for the Applicant responded that:-

"We would further refer you to paragraph 3 on page 3 of your letter and a reply, [11^th June 2004], where you indicate:

'The Tribunal has not received any statement in those precise terms of Mr. Vaughan and as you know, Mr. Vaughan is not prepared to give evidence at the Tribunal's proceedings'.

We further understand from previous hearings of the Tribunal that Mr. Kevin Phelan has also declined to make himself available to give evidence at the Tribunal's proceedings.

It is difficult to comprehend how the Tribunal, in the absence of Mr. Vaughan and Mr. Phelan, can properly introduce evidence which is not admitted and not accepted when it does not have any witnesses available to give the evidence and to be examined and cross examined by Counsel on behalf of the various interested parties. It is perhaps unnecessary, but we feel it is appropriate to remind the Tribunal of what the Supreme Court said where the minimum protections that a person was entitled to (in Re Haughey [1971] I.R. 217)."

On the Affidavit Evidence I find that there was no change of circumstances after the 9^th July, 2004, which might reasonably have led the Applicant or his advisers to conclude that Mr. Christopher Vaughan or Mr. Kevin Phelan would give evidence at the intended public sittings of the Tribunal or that arrangements had been were being made to take their oral evidence outside of the jurisdiction with an appropriate opportunity to the Applicant to cross examine should he so wish. In my judgment, in the circumstances of this case, the applicant has failed to act, "promptly", as required by Order 84 r. 21 (1) of the Rules of the Superior Courts, even though his Application was made within the period of three months allowed for relief in the form of, "Mandamus", and six months allowed for relief in the form of "Certiorari", by Order 84 r. 21 (1). (See The State (Cussen) v. Brennan [1981] (above cited). I find that there is nothing in the Affidavit of the Applicant sworn on 17^th September, 2004 to verify the facts of this Application, or in his second Affidavit sworn also in September 2004, which explains this delay and which affords an objectively justifiable excuse for the delay. It is clear from the contents of paras. 13; 14; 15 and, 16 of the Affidavit sworn by the Applicant on 17^th September, 2004 that the Applicant was at all times during this period of 68 clear days fully aware of the, "failure on the part of the Tribunal to finalise whether Christopher Vaughan and Kevin Phelan would be available to give evidence to the Tribunal in private or in public", (see para. 15). At paras. 18 and 19 of the same Affidavit the Applicant voices his concerns that the Tribunal failed to obtain the evidence of Mr. Christopher Vaughan or Mr. Kevin Phelan outside this jurisdiction and at para. 20 he avers that:-

"The absence of both these witnesses, and any real efforts made by the Tribunal to secure their evidence on commission, means that the Tribunal will base its public hearings solely on Ruth Collard's file and Christopher Vaughan's letter of 25^th September, 1998. All of the other witnesses are being called to respond to the alleged evidence within this file and letter. The commencement of such public hearings is manifestly unfair to your Deponent since none of the crucial evidence disproving any involvement by Michael Lowry, will be opened to the public or, perhaps the Chairman I am led to the conclusion that the Tribunal is only interested in introducing evidence in public that suggests an involvement by Michael Lowry in the Doncaster Transaction."

In para. 25 of this Affidavit sworn on 17^th September, 2004, the Applicant states:-

"One of the reasons why I instructed my legal advisers not to make any application to the Court prior to the Tribunal's opening statement was so that the Tribunal could fully present the evidence it believes is sufficient to suggest on involvement by Michael Lowry in Doncaster."

In para. 9 of the second Affidavit sworn by the Applicant in September, 2004, he avers that there was no delay on his part in taking these proceedings as his Application was made soon after the Tribunal confirmed that it intended to commence public sittings on 15^th September, 2004. At para. 8 of the same Affidavit he says that the Tribunal was due to commence its public sittings into the D.R.F.C.L. Transaction on 14^th July, 2004 but did not do so and as a result of this he believed that the Tribunal might not proceed to public hearings in respect of the Doncaster Rovers Project. The reason for this delay, is stated by the Respondent in the course of his introductory remarks to the opening statement of the Tribunal in respect of the D.R.F.C.L. Transaction Module on 15^th September, 2004 as due to additional procedural requirements entailed in complying with the decision of the High Court, (O'Neill, J.,) in the case of O'Callaghan v. Judge Mahon and Others (unreported) (7^th July, 2004). This decision is cited in a letter dated 8^th July, 2004 from the Solicitors for the Applicant to the Tribunal in which disclosure of ten separate categories of documents and correspondence by the Tribunal is required on foot of this judgment. A letter dated 26^th July, 2004 from the Solicitors for the Applicant to the Tribunal clearly demonstrates that they had been notified by a letter of 12^th July, 2004 that the Tribunal intended to recommence its public sittings on 15^th September, 2004, but they believed that this was in respect of the second G.S.M. mobile telephone licence module only. This letter of 12^th July, 2000 from the Tribunal was not proved or admitted into evidence during the course of this Application.

In my judgment, neither of these explanations affords an objectively justifiable excuse for the lack of promptness in making this Application. I find that the terms of the letter of 14^th July, 2004 from the Tribunal to the Solicitors for the Applicant could leave the Applicant in no doubt but that the Tribunal intended to proceed to public sittings in relation to the D.R.F.C.L. Transaction. For example, the last two lines at the bottom of the third page of the six page letter state as follows:-

"The specific inquiry the Tribunal proposes to address in the case of the Doncaster Transaction is …"

The final paragraph on page five of this letter reads as follows:-

"The Tribunal hopes that notwithstanding his indications to the contrary, Mr. Vaughan might be able to give evidence which might in some way advance the propositions relied on by your client. The Tribunal has sought once again to arrange a private meeting with him in England. While the fact of his non-attendance is a matter to be borne in mind in evaluating the information he has provided, the Tribunal would welcome any assistance you or your client can give in endeavouring to arrange a meeting with him and if possible, to arrange his attendance as a witness."

The last paragraph of this letter states as follows:-

"Lastly, I think it worth repeating once again that the Tribunal is not seeking to make a case against your client or to establish a certain proposition as against your client. In exercising his dispersion to bring material into the public domain, the Sole Member has, both in connection with the Doncaster Transaction and related aspects of the Licensing process, excluded material which at least to date has not been deemed to be either sufficiently substantial or has been deemed to be more prejudicial than probative".

Subjectively, the Applicant might well consider it to be to his advantage to be aware, by waiting for the Opening Statement by the Tribunal, of the full range and scope of the Tribunal's concerns and queries with regard to the D.R.F.C.L. Transaction. However, this does not afford him an objectively justifiable excuse for waiting sixty eight clear days while the Tribunal set out a comprehensive opening statement, prepared for and scheduled its witnesses, structured its time use overall and, continued to address in detail the multiple queries from and objections by his Solicitors during all of which time he was aware of facts which he now claims render any public sittings by the Tribunal in relation to the D.R.F.C.L. Transaction unreasonable and in breach of his constitutional right to fair procedures.

Even if I should be in error in concluding that there has been a lack of promptness on the part of the Applicant in applying for leave to seek Judicial Review on this ground, I find that on the merits of the substantive case on this ground, (iv) the Applicant is so unlikely to be successful that it could not properly be held that he had an arguable case for leave to seek Judicial Review.

I find, from the documents and statements proved or admitted in evidence in the course of this Application, that the Applicant has an arguable case, and, since it was canvassed on behalf of the Respondent as being the appropriate test in the circumstances of this particular Application by reference to the decision in Gorman v. The Minister for the Environment (2001) and the other English decisions to which I have already referred an arguable case that has a reasonably good chance of succeeding, that it would be irrational and flying in the face of common sense and altogether beyond the range of responses open to a reasonable decision maker, for the Respondent to conclude that Mr. Christopher Vaughan and Mr. Kevin Phelan did not have very relevant and material evidence to offer regarding the D.R.F.C.L. Transaction. I base this finding in particular on the Christopher Vaughan files furnished to the Tribunal, the correspondence between him and the Tribunal, in particular the letter dated 6^th March, 2003, the transcript of his interview by Counsel for the Tribunal in London on 9^th September, 2004, the Peter Carter-Ruck and Partners files furnished to the Tribunal and the draft statement and actual statement prepared by Mr. Denis O'Brien Senior in respect of the alleged blackmail attempt to be furnished to the London Metropolitan Police.

I find that the Applicant has established an arguable case and, should that be the appropriate test an arguable case that has a reasonably good chance of succeeding, that the Tribunal is obliged to exert all its powers to procure the evidence viva voce of Mr. Christopher Vaughan and Mr. Kevin Phelan and that the Applicant be afforded a reasonable opportunity of cross examining these persons. There was no evidence before me that this was impossible. In the case of Goodman International and Another v. Hamilton and Others [1993] 3 I.R. 307, it was held in the High Court by Geoghegan, J., (then of that Court), as follows at page 317 of the Report:-

"I do of course accept that the Tribunal itself might be obliged to ensure that certain witnesses be available, in particular at the request of a person seeking to vindicate his good name, if such attendance is compellable. But there may be many instances where a relevant witness cannot be made available. It may be that he or she died, or is too ill to attend and give evidence, or can plead a privilege, or simply refuses to give evidence and is out of the jurisdiction. Any obligation which the Tribunal may have to produce witnesses which a particular person who's good name is under attack may think is necessary ceases if the procuring of such witnesses is impossible."

Mr. Christopher Vaughan on the evidence, resides and carries on business in England and Mr. Kevin Phelan resides in Northern Ireland and carries on business there and in England. Both men have declined to come to this jurisdiction and give evidence before the Tribunal either in private or in public session. However, I find that the Applicant has established an arguable case and, without making any finding that it is the appropriate test in the circumstances of this case, an arguable case that has a reasonably good chance of succeeding, that the Tribunal has sufficient powers to endeavour to obtain the evidence of these persons in England or in Northern Ireland and, given the relevance and importance of their evidence, must exercise that power and be seen to do so.

I find that the Applicant has not established such an arguable case as regards Mr. Ken Richardson and Mr. Mark Weaver. I find that no attempt was made on behalf of the Applicant at the hearing of this Application to establish an arguable case as regards Mr. R. Wilkes or Mr. Gerard Maloney both referred to in ground (vii) of the Reliefs Sought in the Statement required to ground the Application for Judicial Review. I find that on the material proved or admitted into evidence at the hearing of this Application, that the testimony of Mr. Ken Richardson and Mr. Mark Weaver would be so controversial and on very many aspects so open to question that it would be impossible for the Respondent acting rationally and within the range of responses open to a reasonable decision maker to base any findings on the evidence of these two men. Accordingly, I do not consider that Mr. Ken Richardson and Mr. Mark Weaver could be brought within the above principles stated by Geoghegan, J.

I find that the Applicant has established an arguable case and, if relevant an arguable case with a reasonably good chance of success, that the many public assurances given by the Respondent, that he would base his Report to the Clerk of the Dail only on evidence given at the public sittings of the Tribunal is insufficient to overcome what the Applicant argues is the basic unfairness of the Tribunal relying on documents emanating from or provided to the Tribunal by Mr. Christopher Vaughan, with particular emphasis on the letter of 25^th September, 1998 to Mr. Michael Lowry, even though explained in the letter of 6^th March, 2003 to the Tribunal, to further its enquiries in public sittings into the D.R.F.C.L. Transaction unless the Tribunal exerts all its powers and influence to obtain the viva voce evidence of Mr. Christopher Vaughan with a sufficient opportunity to the Applicant to cross examine him.

While I do not consider it necessary to decide the point on this Application for leave to seek Judicial Review, I have some doubt as to whether the principles stated by Henchy, J., in the case of Kiely v. The Minister For Social Welfare [1977] IR 267 at 278 are capable of being of any assistance to the Applicant. It also seems to me that the facts of that case were significantly different than those of the instant case. Henchy, J., stated as follows:-

"It would be contrary to natural justice if one side were allowed to shelter behind his controverted documentary evidence while the other side had to bring his witnesses to the hearing, where they might be required to give their evidence on oath and to be subject to cross examination. The lack of mutuality and the potential for an unjust determination inherent in such a procedure would put it in conflict with the rule of audi alteram partem."

I find, that the Applicant has established an arguable case and, if relevant an arguable case with a reasonably good chance of success, that the Tribunal did not intend to use its powers to endeavour to obtain the oral evidence of Mr. Christopher Vaughan and Mr. Kevin Phelan. I am quite satisfied, and I so find, that the Tribunal tried to persuade Mr. Kevin Phelan and Mr. Christopher Vaughan, in the case of the latter even in the course of the meeting in London on 9^th September, 2004, as appears at pp. 86 and 87 of the Transcript of that meeting, to come to this jurisdiction and to give evidence at the public sittings of the Tribunal, but unfortunately without success.

On 13^th January, 2003 and on 16^th January, 2003 the Tribunal wrote to Mr. Christopher Vaughan in relation to the Articles which had appeared in the Irish Times newspaper on 11^th January, 2003 constructed around the letter of 25^th September, 1998 which Mr. Christopher Vaughan had written to Mr. Michael Lowry in connection with the D.R.F.C.L. Transaction. Mr. Christopher Vaughan replied to the Tribunal by his letter dated 6^th March, 2003 with enclosures, giving, as I have already quoted, his account of the circumstances in which that letter came to be written. By letters dated 27^th May, 2003 and 3^rd June, 2003 and through telephone calls, representatives of the Tribunal sought to arrange a meeting with Mr. Christopher Vaughan in England. In a letter dated 5^th June, 2003, the Tribunal wrote to Mr. Christopher Vaughan as follows:-

"The Tribunal believes that you may have evidence which would be of relevance to its proceedings and at any rate information which may lead to evidence relevant to its proceedings.

I appreciate that you have indicated that you would not be willing to give evidence.

Be that as it may, the Tribunal may have to consider what steps ought to be taken in this matter with a view to exhausting all of the options open to it to obtain from you any relevant evidence or information which may lead to evidence. So far as evidence is concerned the Tribunal will wish to consider whether to apply, as did a previous Tribunal of Inquiry, to the High Court in London for an Order that you be examined under an Order of the English Courts. There are a number of courses which it might be open to the Tribunal to take with a view to seeking the assistance of other agencies to obtain any relevant information including the English Law Society.

The Tribunal would prefer to proceed in this matter on a voluntary basis. What this means in practical terms is that from the point of view of the taking of evidence you might be prepared to give evidence, if not in Ireland, at least in England, on commission."

Mr. Christopher Vaughan responded to the Tribunal by a letter dated 6^th June, 2003 in the following terms:-

"As stated previously, I have assisted the Tribunal with all queries raised to date and I am happy to continue to do so. However, I resent the suggestion that you feel the need to consult other agencies in England.

I confirm unequivocally that Mr. Michael Lowry had no involvement in the acquisition of Doncaster Rovers Football Club Limited and my client at all times was and continues to be Westferry Limited as stated in previous correspondence, Mr. Lowry's name was associated with the aforementioned project through a misunderstanding as set out in my letter of 6^th March, 2003.

In view of the above I fail to see what purpose a meeting would serve, but if you wish to put specific questions in writing to me I will deal with them."

By a letter dated 1^st July, 2003 the Tribunal stated that it wished to examine to the fullest extent possible all of Mr. Christopher Vaughan's dealings with Mr. Michael Lowry and his involvement in five named property transactions in England, including the D.R.F.C.L. Transaction. The letter then went on to state as follows:-

"The Tribunal's reference to other agencies was not intended to be in any way discourteous. However, as I have stated in earlier correspondence, the Tribunal is anxious to conclude its inquires into these matters and in view of the serious nature of the matters under examination, is bound to take every reasonable step to obtain all of the relevant information. It is to that end that the Tribunal considers it appropriate, in the event of its being unable to arrange a meeting and to obtain information directly from you, to approach the matter by involving the Law Society of England and Wales, or the English High Court with the view to having information obtained by or under the ages of either of those agencies.

I repeat that the Tribunal's preference is to try to dispose of this matter by way of an informal meeting and, to that end, I am writing once again to request your assistance in attending such a meeting and I would be much obliged for a response at your very earliest convenience."

Mr. Christopher Vaughan replied on 1^st August, 2003 that he was exploring the possibility of having a meeting with the Solicitor to the Tribunal and one of the Tribunal Legal Team in England to discuss these matters, but would require, inter alia, to be legally represented at such a meeting and, "to avoid the difficulty we had following the previous meeting there would need to be some form of agreed Minute taking." At para. 58 of 142 in his Affidavit sworn on behalf of the Respondent on 20^th September, 2004, Mr. Michael Heneghan, Solicitor to the Tribunal avers that after the substantial completion of the evidence in the Second G.S.M. Mobile Telephone Licence Module in April 2003, "the Tribunal renewed its contact with Mr. Vaughan in May 2004". This was followed by a letter from the Tribunal dated 13^th July, 2004 seeking a private meeting in England between Counsel for the Tribunal and Mr. Christopher Vaughan and his Solicitor, Mr. Duncan Needham of Max Engel and Company, Solicitors. This meeting did not in fact take place until 9^th September, 2004. However the correspondence between Mr. Christopher Vaughan and the Tribunal shows that it was arranged during July 2004 and that the Tribunal was in recess during the entire of the month of August 2004.

In the letter dated 6^th September, 2004 from the Tribunal to the Solicitors for the Applicant it was stated that:-

"While of course one cannot rule out a change of mind on the part of any one of these individuals, as things stand neither Mr. Christopher Vaughan nor Mr. Kevin Phelan are likely to be available…"

At page 57 of the Transcript of the Opening Statement of the Tribunal in relation to the D.R.F.C.L. Transaction Module, Mr. Healy, Senior Counsel on behalf of the Tribunal stated as follows:-

"The Tribunal has obtained written responses from Mr. Christopher Vaughan and while the Tribunal has recently had a useful private meeting with Mr. Vaughan, it has not yet proved possible to persuade him to attend to give evidence. The Tribunal has not however, given up the prospect that Mr. Vaughan will make himself available to give evidence.

The Tribunal does not anticipate that evidence will be available from Mr. Kevin Phelan. Like Mr. Vaughan, he resides outside the jurisdiction and therefore, neither of them can be compelled to attend."

In my judgment the Applicant has established an arguable case, and if relevant, an arguable case with a reasonably good chance of success, that apart from hoping to persuade Mr. Christopher Vaughan to change his mind, the Respondent has otherwise abandoned any intention of compelling him to give oral evidence in England with a proper opportunity to the Applicant to cross examine him.

However, even if the Applicant has established an arguable case, and if relevant even an arguable case with a reasonably good chance of success, that the Applicant's constitutional right to fair procedures requires that the Respondent exert all the powers available to the Tribunal to obtain viva voce evidence from Mr. Christopher Vaughan and Mr. Kevin Phelan with a sufficient opportunity to the Applicant to cross examine them, this does not in my judgment establish even an arguable case for halting all public hearings of the Tribunal in relation to the D.R.F.C.L. Transaction.

The letter dated 25^th September, 1998 from Mr. Christopher Vaughan to Mr. Michael Lowry when published in the Irish Times Newspaper almost certainly revived and intensified the interest of the Tribunal in the D.R.F.C.L. Transaction and, the possible involvement of Mr. Michael Lowry in that transaction. While this may be so, in my judgment, it could not be said without closing ones eyes entirely to the remainder of the material obtained by the Tribunal in the course of its private investigations into the D.R.F.C.L. Transaction that without exhausting the powers available to him to obtain the oral evidence of Mr. Christopher Vaughan and Mr. Kevin Phelan, it would be irrational, unreasonable, flying in the face of common sense and conducive to an unjust determination, for the Respondent to proceed to hear any evidence in public sittings relating to the D.R.F.C.L. Transaction.

While I find that the viva voce evidence of Mr. Christopher Vaughan and Mr. Kevin Phelan would, on the material placed before the Court at the hearing of this Application, be very relevant and material to a proper and full understanding of all of the circumstances surrounding the D.R.F.C.L. Transaction, it is still only a discreet, and in my judgment, separate and severable part of the entire body of facts by reference to which the Respondent must make his Report to the Clerk of the Dail. The hearing in public of the evidence of Ms. Ruth Collard, partner in the firm of Peter Carter-Ruck and Partners, Solicitors and the consideration of the relevant documents of that Firm furnished to the Tribunal, also the evidence of Mr. Denis O'Connor of Brophy Butler Thornton, Chartered Accountants, could not in my judgment be excluded as unfair to the Applicant because Mr. Christopher Vaughan and Mr. Kevin Phelan were not being called in evidence. Very material to the testimony of Ruth Collard, is for example her Attendance dated 10^th September, 2002 in respect of a meeting with Mr. Craig Tallents and Mr. Denis O'Connor in relation to the Doncaster Rovers Football Club contract dispute. It will be recalled that Ms. Collard recorded that:-

"He [Denis O'Connor] said that the other side [Mr. Ken Richardson and Mr. Mark Weaver] were laughing at us and that they would ensure that the mediation did not succeed and would then take the matter to Court. They wanted to cause the maximum embarrassment for Denis O'Brien and for others including Michael Lowry. Ruth Collard asked how they could cause embarrassment to Michael Lowry, as, so far as she was aware, he had no connection to the proceedings. Denis O'Connor said that Michael Lowry did have a connection and that he had been in the room when discussions had taken place between Kevin Phelan and Ken Richardson regarding the lease. Ruth Collard said no one had ever suggested that to her previously."

Mr. Michael Lowry was a client of Mr. Denis O'Connor at the material time. The Court was informed at the hearing of this Application that Mr. Denis O'Connor does not accept what is set down by Ms. Ruth Collard in this Attendance as being an accurate record of what was said at this meeting.

I am not satisfied that evidence cannot be given at public sittings of the Tribunal in relation to the D.R.F.C.L. Transaction by Mr. Denis O'Brien Senior, Mr. Aidan Phelan, Mr. John Ryall, Mr. Michael Lowry and the Applicant in the absence of evidence form Mr. Christopher Vaughan and Mr. Kevin Phelan without that being unfair to the Applicant.

If Mr. Christopher Vaughan does not give evidence then, in particular having regard to the letter from Mr. Christopher Vaughan to the Tribunal dated 6^th March, 2003, the Respondent will have to decide what weight (if any) he can give to the letter of 25^th September, 1998 in making his Report to the Clerk of the Dail. However, the fact that this issue might have to be addressed by the Respondent is no basis for seeking an Order of this Court halting all public sittings of the Tribunal inquiring into the D.R.F.C.L. Transaction. This is especially so as the Tribunal is on notice of matters altogether separate from and unconnected with this letter on 25^th September, 1998, such as the Ruth Collard attendance of 10^th September, 2002 in which she records Mr. Denis O'Connor, Accountant to Mr. Michael Lowry as stating that Mr. Lowry did have a connection with the D.R.F.C.L. Transaction. It might well be that the Respondent, having heard evidence from witnesses other than Mr. Christopher Vaughan and Mr. Kevin Phelan would be in a position to conclude that Mr. Christopher Vaughan was, as he now insists he was, wholly incorrect in the belief which he expressed in his letter of 25^th September, 1998 to Mr. Michael Lowry, that Mr. Lowry was totally involved in the D.R.F.C.L. Transaction.

In my judgment therefore, even if I am incorrect in ruling that the Applicant is precluded by reason of his lack of promptness in applying for leave to seek Judicial Review on this particular ground (iv), I am satisfied that on the merits he has no arguable case for the relief he is seeking in this Ground, which is for an Order Quashing or Declaring to be contrary to his constitutional right to fair procedures, the decision of the Respondent to proceed to public hearings in respect of the D.R.F.C.L. Transaction.

The Terms of Reference establishing the Tribunal of Inquiry request that it will conduct its inquiries in accordance with the directions specified by the Terms of Reference themselves. One of these directions requests the Tribunal:-

"To carry out such investigations as it thinks fit, using all the powers conferred on it under the Acts, [Tribunals of Inquiry (Evidence) Acts, 1921 and 1979], (including, where appropriate, the power to conduct its proceedings in private) in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceedings to a full public inquiry in relation to such matters."

The phrase "sufficient evidence" fell to be interpreted by the Supreme Court in the case of Redmond v. Flood [1999] 3 I.R. 79. In that case, the formula used in the Terms of Reference of that particular Tribunal of Inquiry requested the Tribunal:-

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

In delivering the judgment of the Supreme Court in that case, the former Chief Justice, Hamilton, C.J., stated as follows at page 95 of the Report:-

"An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921 is a public inquiry. The Court [the Supreme Court], in the passage quoted, [Haughey v. Moriarty and Others (1999) 3 IR 1 at 74], accepted that it was proper for a Tribunal to hold preliminary investigations in private. This would enable the Tribunal, inter alia, to check on the substance of the allegations made against them, [the Applicants] in public. But the Court was not suggesting that the Tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular citizen. It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal is not obliged to hold a private inquiry before proceeding to a public inquiry. The allegations made against the Applicant in this case could be false. At this stage we simply do not know. But they are grounded on a sworn affidavit. In these circumstances it appears to this Court that the Tribunal was entitled to decide that they were of sufficient substance to warrant investigation at a public inquiry. Indeed it would be surprising if the Tribunal had decided otherwise."

In my judgment the difference in the wording between the Terms of Reference is not such as would render this interpretation inappropriate in the instant case.

It was contended by the Applicant that the Respondent took no proper measures to determine whether, "sufficient evidence", existed to warrant proceeding to a full public inquiry in respect of the D.R.F.C.L. Transaction and, that there was in fact no such evidence. It was pointed out that in this Application unlike other cases such as, Haughey v. Moriarty and Others (above cited) and Redmond v. Flood (above cited), no allegations were made on affidavit that Mr. Michael Lowry was involved in any way in the D.R.F.C.L. Transaction and that he received substantial payments in or through that Transaction. It was submitted by the Applicant that fair procedures required the Respondent, in such circumstances, before proceeding to public sittings, to first take the testimony of Mr. Denis O'Brien Senior, Mr. Aidan Phelan, Mr. Michael Lowry and other indicated witnesses in private so as to prevent aspects of the Applicant's personal and business affairs coming into the public domain and, to obviate the risk of having baseless allegations made against him.

By its letter dated 27^th May, 2004 the Tribunal informed the Solicitors for the Applicant that:-

"The Tribunal has now determined that it is appropriate to proceed to hear evidence at public sittings of the Tribunal pursuant to paragraph (e) of its Terms of Reference in relation to the Doncaster Rovers Football Club Project and the connection of Mr. Michael Lowry with the project…. The Tribunal expects to resume public sittings shortly after the commencement of the new legal term and anticipates hearing evidence into this matter from in or about the middle of next month."

No Application for leave to seek Judicial Review of this decision of the Respondent for the reasons now advanced was made until 17^th September, or, if the date when the Motion was moved before the Court is the relevant date, 21^st September, 2004.

It is established by reference to the correspondence opened to the Court on this Application that the Applicant was furnished with relevant copy documents by the Tribunal even prior to his being notified on 27^th May, 2004 of the intention of the Respondent to proceed to public hearings. As a matter of probability, it seems to me that the Applicant could have obtained access to and obtained copies of the entire files of Mr. Christopher Vaughan and Peter Carter-Ruck and Partners in relation to all aspects of the D.R.F.C.L. Transaction had he requested the same either directly or through Westferry Limited. However, it was not until 13^th September, 2004, two days prior to the commencement of the public sittings of the Tribunal that the Applicant was furnished with;

"All material provided to the Tribunal both orally or in writing, in the course of its private investigative inquiries into the D.R.F.C. Project together with all memoranda generated by the Tribunal and/or its legal team during the course of private meetings with persons who have given information and/or documents to the Tribunal in the course of its enquiries."

This material contained in 14 Books of Documents was furnished by the Tribunal to the Solicitors for the Applicant as a result of the Decision of the High Court (O'Neill, J.,), on 7^th July, 2004 in the case of O'Callaghan v. Judge Alan Mahon and Others (unreported), an appeal against that decision to the Supreme Court.

In my judgment, the Applicant has an arguable case that it was only after he had obtained and had an opportunity of considering this material that he became aware of what he asserts to be the paucity of the evidence upon which the Respondent intended to proceed to full public sittings of the Tribunal in respect of the D.R.F.C.L. Transaction, and was able to appreciate the extent to which it would be unfair on the part of the Respondent so to proceed rather than availing of his express power under the Terms of Reference to hear all witnesses in relation to this Module in private session. Alternatively, it appears to me that these considerations could arguably form the basis of an explanation and objectively justifiable excuse for delay in seeking Judicial Review on this ground and a good reason for the Court to grant an extension of time. I would not therefore refuse leave to seek Judicial Review on this ground, (ii), and (iii), because of delay only.

In the case of Redmond v. Flood [1999] 3 I.R. 79 at 88, the former Chief Justice Hamilton, C.J., delivering the judgment of the Supreme Court stated that:-

"It is of the essence of such inquiries that they be held in public for the purpose of allaying the public disquiet that led to their appointment.

Provided that the well established requirements of fair procedures and constitutional justice, has laid down in numerous cases by this Court, are complied with, there can be no question that the holding of the inquiry in public is a breach of fair procedures and constitutional justice."

At page 94 and 95 of the report of that Judgment the former Chief Justice rejected the Application of Mr. Redmond that he had a constitutional right not only to see the evidence proposed to be produced against him but also to have in effect a private hearing on those matters before a public hearing was commenced so that, inter alia, he would have an opportunity to be heard in relation to the sufficiency of the evidence against him before the Tribunal made its decision to proceed to full public inquiry. The former Chief Justice, Hamilton, C.J. adverted to the fact that the Supreme Court, in the case of Joseph Murphy Senior v. Flood [2000] 2 I.R. 298 at 305, had pointed out that s. 2 (a) of the Tribunals of Inquiry (Evidence) Act, 1921 is couched in the negative and that a private session is an exception to the general mode of procedure contemplated for hearings before the Tribunal and cannot be had unless in the opinion of the Tribunal it is in the public interest expedient to do so for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given.

Nothing has been put before the Court on this Application which would enable me to find that the Applicant has an arguable case that his evidence and the evidence of the other witnesses in the Witness List furnished by the Tribunal to his Solicitors in the letter of 6^th September, 2004, should be heard in private either exclusively or at least before the Tribunal embarked upon its public sittings.

The investigative stage of the work of these Tribunals of Inquiry was considered by the Supreme Court in the case of Haughey v. Moriarty and Others (above cited). At page 74 of the Report, the former Chief Justice, Hamilton, C.J., stated that:-

"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 purpose 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".

At page 305 of the Report in the case of Murphy v. Flood (above cited) the former Chief Justice, Hamilton C.J., held that:-

"The admissibility of evidence is purely a matter for the Respondent [the Sole Member of the Tribunal] and his decision to admit the said evidence cannot be said to have been made by him in breach of the Applicant's constitutional rights or to be unreasonable or irrational as to justify this court in interfering therewith."

I have carefully considered all the correspondence and documents which arose in the course of the preliminary investigative work by the Tribunal in relation to the D.R.F.C.L. Transaction. In my judgment, even if one were to exclude in its entirety every reference to Mr. Christopher Vaughan and his letter of 25^th September, 1998 to Mr. Michael Lowry, the Peter Carter-Ruck and Partners documents are such that it could not be argued that a decision of the Respondent to proceed to full public sittings in relation to these matters alone could in any way be said to be unreasonable, irrational or a breach of the Applicant's constitutional rights. The Supreme Court in Haughey v. Moriarty and Others (above cited) or in Redmond v. Flood (above cited), did not rule that only material deposed on Affidavit is "sufficient evidence" to enable Tribunals of Inquiry to proceed to full public sessions. Given the origin, timing and content for example of the Ruth Collard Attendance of 10^th September, 2002, to borrow the expression of the late Chief Justice Hamilton, "it would have been surprising if the Tribunal had decided otherwise", than to proceed to public session. In the case of Bailey and Others v. Flood and Others (the High Court) (unreported) 6^th March, 2000 per Morris J., (as he then was), the learned Judge at page 480 of the Report stated that:-

"…I think it clear that if the Sole Member on a preliminary investigation found sufficient evidence in relation to even one issue, then he should proceed to public sittings."

I am satisfied that the Applicant has failed to show an arguable case on these grounds, (ii) and (iii) also.

The reliefs claimed at paragraphs (v) and (vi) of the Statement of Grounds seek the following reliefs:-

"(v.) A Declaration that the decision of the Respondent to interview Christopher Vaughan on 9^th September, 2004 and the carrying out of the said interview shows bias on the part of the Tribunal and constitutes a breach of the Applicant's rights to fair procedures and to natural and constitutional justice and his rights under the European Convention on Human Rights as incorporated into Irish Law; and

(vi) A Declaration that the interview held in London on 9^th September, 2004 was a conscious and deliberate violation of the Applicant's rights pursuant to Article 40 of the Bunreacht na hEireann and is a breach of the Applicant's rights to fair procedures and to natural and constitutional justice and his rights under the European Convention and Human Rights as incorporated into Irish Law."

I am satisfied on the evidence of letters dated 20^th July, 2004 and 10^thAugust, 2004, that Mr. Denis O'Brien Senior, who acted for Westferry Limited, (the corporate vehicle through which the Applicant purchased the D.R.F.C.L. interest), in relation to the post completion dispute regarding the Lease and the Retention Money, and Mr. John Ryall, the accountant in this jurisdiction who was authorised by a letter dated 26^th July, 2002 from Westferry Limited to give instructions on behalf of that company to Peter Carter-Ruck and Partners, Solicitors, were both aware that the Tribunal was pressing for a meeting in England between Mr. Christopher Vaughan and representatives of the Tribunal. I am also satisfied that by letter dated 14^th July, 2004, the Tribunal informed the Solicitors for the Applicant that it had, "sought once again to arrange a private meeting with him in England," [that is, with Mr. Christopher Vaughan].

In these circumstances, I find myself unable to accede to the argument that because the exact date of the meeting with Mr. Christopher Vaughan sought by the Tribunal was not then known or agreed, that the date for challenging what is now alleged to be a biased and unfair decision to seek a private meeting with Mr. Christopher Vaughan knowing that he had refused to give evidence at a public or private sitting of the Tribunal, a decision which it is now said was in deliberate disregard of the Applicant's rights under Article 40 of the Constitution and the European Convention on Human Rights as incorporated into Irish Law, had not then arisen.

By letters dated 27^th June, 2001 24^th July, 2001, 24^th October, 2001, and 17^th July, 2002, Mr. Christopher Vaughan had clearly indicated that he could not see his way to give evidence before a public or private sitting of the Tribunal in this jurisdiction. The Tribunal insisted in endeavouring to persuade him to alter this decision as is apparent from the letters dated 25^th May, 2003, 3^rd June, 2003, 5^th June, 2003, 1^st July, 2003 and 14^th May, 2004. Even if the Court was prepared to accept that it was arguable that the Applicant did not learn from his father, from Mr. C.P.A. Vanderpump or, Mr. John Ryall both directors or agents of Westferry Limited, of these endeavours by the Tribunal to arrange a meeting in England between representatives of the Tribunal and Mr. Christopher Vaughan, his Solicitors were expressly advised of these endeavours by the Tribunal in a letter dated 14^th July, 2004. Despite this, the Application for leave to seek Judicial Review on this ground was not made until 17^th September, 2004 or, if the date of the making of the Application is the relevant date, then 21^st September, 2004. In my judgment this demonstrates a total lack of promptness on the part of the Applicant in applying for leave to seek Judicial Review on these grounds for which no explanation or objectively justifiable excuse is given in either of his affidavits sworn for the purpose of this Application. I believe that the Court may infer, despite the absence of specific costings, that very considerable financial detriment was suffered by the Tribunal in carrying through this meeting on 9^th September, 2004, which meeting the Applicant now seeks to impugn. I am satisfied, that by reason of his delay the Applicant could not establish an arguable case in respect of these reliefs. But apart altogether from the issue of delay I am satisfied that the Applicant has not established an arguable case on the merits.

I am quite satisfied on the evidence in the instant case, and I find, that in seeking, arranging and conducting the meeting in London on 9^th September, 2004 between Counsel for the Tribunal and Mr. Christopher Vaughan and his Solicitor, the Tribunal was not acting in the formal exercise of its power to examine witnesses. This was not in my judgment, a proceeding of the Tribunal in private as contemplated by s. 2 (a) of the Tribunals of Inquiry (Evidence) Act 1921. I find that in seeking, arranging and, conducting this meeting, the Tribunal was acting in its preliminary investigative role only. Any semblance of formality attaching to the meeting by virtue of the taking of a note is no more than just that. Provision for the transcription of what was said at this meeting was made by the Tribunal solely because of the express request of Mr. Christopher Vaughan for such a note for the reasons stated by him in making that request and to which I have already adverted. This meeting of 9^th September, 2004 did not follow the issuing of a commission and could not constitute an examination of a witness abroad pursuant to an appropriate request in that behalf as provided for by s. 1(1)(a) of the Tribunals of Inquiry (Evidence) Act, 1921. The Statement by Mr. Christopher Vaughan in his letter of 20^th July, 2004 to the Tribunal that in principle he had no problem, "in meeting with the Tribunal in private session" in England is not in anyway conclusive as to the nature of the meeting of 9^th September, 2004. In my judgment there was no purported delegation by the Respondent of his power to examine witnesses to the Counsel involved in that meeting of 9^th September, 2004. The decision in the case of Lawlor v. Flood [1999] 3 I.R. 107, Supreme Court, is therefore clearly distinguishable from the instant case on its facts and the principles stated by the former Chief Justice has no Application to the facts of the instant case.

It is clear on the evidence that Mr. Christopher Vaughan attended the meeting in London on 9^th September, 2004 on a voluntary basis. Mr. Christopher Vaughan was not and could not have been ordered by the Respondent to attend or to answer questions put to him at that meeting in London by Counsel for the Tribunal. If this meeting was ultra vires the powers of the Tribunal, no lawful use could be made of any material obtained as a result of that meeting. Counsel for the Respondent accepted at the hearing of this Application, that the Respondent could not in any event rely in any way upon the Transcript of this meeting in London on 9^th September, 2004 in formulating his Report to the Clerk of the Dail as it was not evidence heard by the Respondent. The Applicant meanwhile appeared to be contending that it was unfair to him that the Tribunal was not exerting all its powers to procure that this evidence be given viva voce by Mr. Christopher Vaughan to the Tribunal.

An allegation of bias on the part of the person appointed by both Houses of the Oireachtas to be the Sole Member of a Tribunal of Inquiry is a most serious matter, particularly so, when that person is a Judge of the High Court. The question to be answered is whether a reasonable person in the position of the Applicant who was neither over sensitive or careless of his position, having properly directed his mind to the facts and not acting merely upon an ill-informed suspicion, would really consider that the purpose of the Tribunal in entering into further discussions with Mr. Christopher Vaughan in the circumstances of his continued refusal to give evidence before the Tribunal in public or in private sessions, was to endeavour to obtain information to the detriment of the Applicant, which even if it could not form the basis of a Report by the Respondent to the Clerk of the Dail, would still influence the Respondent and colour any Report which he might furnish. In my judgment given the status of the Respondent and his repeated public rulings that he would make his Report solely on evidence properly received at the public sittings of the Tribunal and, having regard to the contents of the 190 or more, frequently lengthy, letters which passed between the Tribunal and the Solicitors for the Applicant between 13^th January, 2003 and 14^th July, 2004, which demonstrate an enormous restraint and scrupulous regard for fairness on the part of the Tribunal, no reasonable person could reasonably entertain such an opinion.

The fact that a date is fixed, in this instance the 15^th September, 2004, for the commencement of the public sittings of a Tribunal in relation to a particular topic or module, does not in any way suspend the preliminary investigative work of the Tribunal which remains ongoing. This was accepted by Counsel for the Applicant during the course of this Application. It must not be forgotten that Mr. Christopher Vaughan had previously met representatives of the Tribunal at Dublin Castle on 30^th May, 2001 for three hours. However on the evidence, this was before he had been asked and had declined to give evidence in this Jurisdiction. Unlike the case of a lis inter partes, the matters to be addressed and, therefore, the work of the Tribunal, is not circumscribed by pleadings. To borrow the expression of Counsel for the Public Interest in opposing this Application, the Tribunal's Inquiry is organic in nature the obtaining of information is incremental and the importance of any item of information can wax or wane as other information comes to light. In my judgment, the fact that a particular person who has or appears to have material information relevant to the Terms of Reference of the Tribunal has clearly indicated that he or she, if not otherwise compellable, will not give evidence, does not render it unfair for representatives of the Tribunal to continue to engage with that person, for example, to see if areas or lines of inquiry are indicated which should be pursued by the Tribunal.

At para. (viii) of the Reliefs Sought in the Statement of Grounds, the Applicant seeks an injunction requiring the Respondent to furnish him with all documents furnished to the Tribunal during the course of its private inquiry into the D.R.F.C.L. Transaction and, all memoranda and/or documents of conversations, meetings or consultations generated by the Respondent and/or his legal advisors. At para. (ix) of the Reliefs Sought in the Statement of Grounds, the Applicant seeks the same relief but in respect of the, "Money Trail" and, "the G.S.M." Modules. It was stated by Counsel for the Applicant that the fourteen Books of Documents, furnished by the Tribunal to the Solicitors for the Applicant without prejudice to the appeal to the Supreme Court in that case from the decision of the High Court (O'Neill, J., in the case of O'Callaghan v. Judge Alan Mahon and Others [unreported] [7^th July, 2004], does not contain all of the documents sought in respect of the D.R.F.C.L. Module. No list indicating what documents are alleged to be missing whether identified by internal reference or through other means, was placed before the Court at the hearing of this Application. It was pointed out that the fourteen Books of Documents did not include the Transcript of the meeting in London on 9^th September, 2004 between Counsel for the Tribunal and Mr. Christopher Vaughan, or the letter of 17^th August, 2004 from Mr. Kevin Phelan to the Tribunal. Counsel for the Tribunal informed the Court that these had now been furnished to the Solicitors for the Applicant and assured the Court that the Tribunal had fully complied with the spirit and the letter of the decision of O'Neill, J., in O'Callaghan v. Judge Alan Mahon and Others (above cited) and all the D.R.F.C.L. Transaction documents, records and memoranda sought by the Applicant had been furnished to his Solicitors. No explanation was given during the hearing of this Application as to what relevance, if any, the, "Money Trail", or the, "G.S.M. Module", documents had to the D.R.F.C.L. Transaction Module of the Inquiry. In my judgment the Applicant has not established an arguable case on either of these grounds.

At para. (x) of the Reliefs Sought in the Statement of Grounds the Applicant seeks, "a Declaration that the Procedures adopted by the Respondent and the delay in concluding the Tribunal of Inquiry have infringed the Applicant's rights to fair procedures and to natural and constitutional justice and his rights under the European Convention on Human Rights as incorporated into Irish law.

At para. (xi) of the Reliefs Sought in the Statement of Grounds, the Applicant seeks the following relief:-

"An Order of Mandamus directing the Respondent to report back forthwith to the Houses of the Oireachtas on foot of the Terms of Reference furnished to the Respondent which required him to inquire urgently into and report on matters of public interest pertaining to alleged payments to Messrs. Charles Haughey and Michael Lowry. The failure of the Respondent to report back to the Houses of the Oireachtas for a period of seven years is a breach of the aforesaid Terms of Reference and a breach of the Applicant's rights to fair procedures and to natural and constitutional justice and his rights under the European Convention on Human Rights as incorporated into Irish law."

At paras. 31 to 35 inclusive of the verifying affidavit sworn by him on 17^th September, 2004 the Applicant deals with these reliefs. The contents of these paragraphs is not so much factual as polemical. There was no dispute at the hearing of this Application that the Tribunal of Inquiry was established by Resolutions of the Dail and the Seanad in September 1997 which is now seven years ago. It is not denied on the part of the Respondent that during the course of the past three years the Tribunal had investigated various different aspects of the private and business affairs of the Applicant with which Mr. Michael Lowry appeared to be connected. At paragraph 32 of this affidavit, the Applicant averred that the ongoing operations of the Tribunal were having an impact on his international business dealings and were causing damage to his good name. No detail of this alleged impact and damage are given. At para. 31, the Applicant states that he believes that no Report by the Respondent will vindicate his good name and reputation after three years when he alleges that, "the clear image coming out of this Tribunal is that Esat Digifone Limited did not fairly obtain the second G.S.M. Licence but obtained it through payments to Michael Lowry". At para. 31 of this affidavit the Applicant asserts, - and this is not denied, - that over the past two years the Tribunal has sat in public sessions for only 125 days. The Applicant, at para. 33 of this Affidavit, states that the length of time that the Tribunal has been investigating his affairs is unfair and an infringement of his constitutional rights to fair procedures and privacy. At para. 34 of the Affidavit he asserts that the Tribunal continues to, "trawl over my private business affairs without justification…" and, he refers at para. 35 to the letter of complaint dated 1^st July, 2004 written by him to the Clerk of the Dail. At para. 31 of this Affidavit sworn on 17^th September, 2004, the Applicant claims that he should not be exposed, "to such an ongoing cost which to date has cost me €5.5 million". At para. 34 he requests that the Court should require the Tribunal to report to the Houses of the Oireachtas, "at this stage on where it is proceeding".

These matters are addressed at paras. 133 to 137 inclusive of the Affidavit of Michael Heneghan, Solicitor to the Tribunal, sworn on behalf of the Respondent on 20^th September, 2004. These paragraphs I believe might justly be described as discursive rather than factual.

At para. 134 Mr. Heneghan quotes a statement by the Applicant made in the course of his evidence on day 147 of the Tribunal's proceedings:-

"And in fact, if the Tribunal is going to look into the licence, I will be more than happy with that, because I have always said from the outset, we need a big investigation to kill all this innuendo about the licence".

At para. 133, Mr. Heneghan denies that there has been any oppressive delay or breaches of fair procedures on the part of the Tribunal. He asserts that while the allegations of the Applicant made in paragraphs 31 to 35 inclusive of his affidavit sworn on 17^th September, 2004 are rejected by the Tribunal "a full and comprehensive response to the complaints made…would entail opening to the Court many hundreds if not thousands of pages of the transcripts of the Tribunal's proceedings".

At para. 135 of his Affidavit of 20^th September, 2004 Mr. Heneghan avers as follows:-

"In the course of its inquires into the Money Trail and the G.S.M. Licence over the past number of years the Tribunal has made it clear that one of the questions to which it wished to find answers, if answers could be found, was as to whether information suggesting a connection between Mr. Lowry and the Applicant had been kept from the Tribunal at a time when it ought to have been known to be relevant to matters in respect of which the Tribunal was already taking evidence from Mr. Lowry and manifestly this is an aspect of the Tribunal's continuing inquiries which may need to be revisited in the context of the letter and the related matters being examined in this portion of the Tribunal's public hearings."

The Court was informed by Counsel for the Respondent that the Applicant gave evidence before the Tribunal for 19 days during 1995 and 1996 in relation to what was described as the, "Money Trail Module" and, the "Second G.S.M. Licence Module". Counsel for the Respondent submitted to the Court at the hearing of this Application that while the D.R.F.C.L. Transaction may have been mentioned in passing during this period of nineteen days, it was not in any sense investigated and the evidence in relation to it was taken at face value. The material which has led to what Counsel for the Respondent described as the present separate and discrete inquiry into the D.R.F.C.L. Transaction and the connection of Mr. Michael Lowry, (if any) with that transaction only arose as a result of the publication of the three Articles in the Irish Times newspaper on Saturday 11^th January, 2003. At para. 44 of his Affidavit Mr. Heneghan points out that on Monday 13^th January, 2003 the Tribunal wrote to the Solicitors for the Applicant, the Solicitors for Mr. Michael Lowry and, the Solicitors for Mr. Aidan Phelan requesting:-

"All documents in your client's power, possession or procurement regarding the events surrounding a complaint apparently made to the Police in London by representatives of Mr. O'Brien after the letter of September, 1988 had apparently been produced by the Vendors of the D.R.F.C. site in the course of the mediation in September, 2002 of a dispute between the Vendors and the Purchasers together with any information as to the steps which had been taken to investigate the complaint and the outcome of such complaint".

At para. 137 of his replying affidavit Mr. Heneghan states as follows:-

"While the Applicant asserts that in order to facilitate the speedy conclusion of the Tribunal he has fully cooperated with it to date in the belief that it was nearly over, the fact remains that Mr. O'Brien Snr., his father, by whom much of the Doncaster Transaction was being managed was requested to provide a narrative statement to the Tribunal in January, 2003. While the Tribunal was promised a narrative statement in December, 2003 none has yet been provided. The same goes for Mr. Ryall, an associate of both the Applicant and Mr. Denis O'Brien Snr. Mr. O'Brien's Solicitor, Mr. Christopher Vaughan, has provided the Tribunal with some assistance. However, the Tribunal was extremely surprised at an early stage in its inquiries into the English property transactions to learn from Mr. Vaughan that he would not be prepared to give evidence. It is also a surprise to the Tribunal that Mr. Vaughan appears to have been in continuing contact with the Applicant and some of his associates or agents and that some of the material generated in the course of those contexts, which is clearly of relevance to the work of the Tribunal, has not been furnished to the Tribunal. In particular, in January, 2003 the Tribunal sought a copy of the statements, if any, Mr. Vaughan made to the English Police in connection with the complaint concerning the activities of Messrs. Weaver and Richardson. That statement was not made available although it is clear from the documentation now being exhibited as 'DOB 7' that it has been available to the Applicant's Solicitors for some time. The Tribunal's request for that information is contained in a letter dated 22^nd January, 2003 and addressed to Messrs. William Fry and exhibited at Exhibit 'MH9'".

Unless expressly required by its Terms of Reference there is no obligation on a Tribunal to furnish an Interim Report or Reports. This Court has no power to insist upon an Interim Report being furnished to the Clerk of the Dail. Despite the letter from the Applicant, dated 1^st July, 2004, to the Clerk of the Dail, no such Interim Report was requested by the Houses of the Oireachtas. I state this as a fact and, I am making no determination as to whether, as a matter of law, the Houses of the Oireachtas could insist upon such an Interim Report, being furnished by the Sole Member of the Tribunal if such an Interim Report was not provided for in the Terms of Reference establishing the Tribunal, or whether the Houses of the Oireachtas could amend the Terms of Reference to provide for such an Interim Report particularly after the passage of seven years.

In my judgment, an arguable case could be made that the Tribunal, though not in the position of a plaintiff in a lis inter partes, must, as regards those being investigated, or those becoming involved in such an investigation, proceed with all practicable expedition in the proper discharge of its business and should not allow its investigation to become unduly prolonged through excessive caution or suspicion, lack of focus or excessive zeal. A Tribunal of an Inquiry must always maintain a proper sense of proportion between the public interest and the rights of individual citizens. There is, I believe, not merely a negative duty on a Tribunal not to be guilty of significant delay but a positive duty to actively progress its business in such a manner as to cause no, or the very least possible, damage to the personal or property rights of any persons concerned proportionate to the gravity of the matter under investigation as objectively assessed.

I consider that it can no longer be the law in this jurisdiction that delay may be overlooked, however much deprecated, provided it is not inordinate or inexcusable. It seems to me that if a complainant can demonstrate some actual and material prejudice to his personal or property rights, even in the absence of any significant delay, there is, an arguable case that the Court must provide an appropriate remedy which might well extend to forbidding any further investigation by the Tribunal of the complainant's affairs whether in preliminary investigative mode or in public or private sittings of the Tribunal. In reaching its decision the Court will consider all of the relevant factors including:-

"The nature and seriousness of the matters under investigation and the degree of public disquiet occasioned by these matters.

The degree of connection of the complainant with these matters.

The evidence and nature of the actual damage to the personal and additionally or alternatively property rights of the complainant.

The degree of responsibility of the complainant for the length of the inquiry into his or her business or private affairs.

The proportion between the amount of further investigation deemed reasonably and actually necessary in relation to the complainant and the degree of benefit likely to accrue in the context of the nature and seriousness of the public disquiet sought to be allayed. This, of course, is not intended to be an exhaustive list of the matters to be considered in any individual case.

Apart from the figure of €5.5million said to be the amount of costs incurred by the Applicant to date, - a sum which is neither vouched nor certified by a Legal Cost Accountant, - no attempt was made on the part of the Applicant at the hearing of this Application to quantify any actual loss or damage to his business or property interests because of the alleged delay on the part of the Tribunal. No evidence was offered of any actual damage to the Applicant's personal or business reputation. That some of the Applicant's business and private affairs have become public as a result of the Tribunal's investigations must be accepted as an unavoidable consequence of the establishment of this Tribunal of Inquiry. However, this forms no basis from which I could properly infer that the Applicant's business or private reputation has been actually and materially damaged as a result of alleged delay on the part of the Tribunal, and which would not have arisen from the conduct of its investigations in the normal course. I find that the Applicant has established no arguable case on this ground.

In my judgment, no arguable case has been established on the affidavit evidence on this Application, that the Tribunal has failed to advance its investigations into the Applicant's private and business affairs as rapidly as the complexity of the subject matter and the Applicant's insistence upon the scrupulous observants of all aspects of his rights to fair procedures, would permit. Out of context, the Court could draw no adverse inference from the unchallenged assertion by the Applicant that the Tribunal sat for 125 days only in the past two years. For example, this might be an enormous number of sitting days having regard to the amount of preliminary investigative work required to be carried out in the same period by the Tribunal. In my judgment the evidence on this Application falls short of what would be necessary for the Applicant to establish an arguable case under the European Convention on Human Rights as incorporated into Irish Law, or under the provisions of Article 40 of the Constitution based on alleged delay on the part of the Tribunal. I am satisfied that no arguable case could be made and, certainly no arguable case with a reasonable chance of success, should that be the test, that the Tribunal has not conducted its investigations into the D.R.F.C.L. Transaction to date with sufficient dispatch and consequently has caused actual damage to the personal and additionally or alternatively property rights, of the Applicant. I find that there is considerable merit in the argument advanced by Counsel for the Respondent that damage to personal and additionally or alternatively to property rights can only flow from the Report of the Sole Member of the Tribunal and not from the inquiries and the evidence. However, I would prefer not to base my conclusion on this proposition alone.

Having regard to the foregoing, the Applicant is not entitled to the reliefs sought at paragraph (xii) of the Reliefs Sough in the Statement of Grounds as the evidence fails to disclose a fair issue to be tried. The Applicant is not entitled to any further or other relief as sought at paragraph (xiii) of the Reliefs Sought in the Statement of Grounds.