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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Brien v. Moriarty [2005] IEHC 343 (24 August 2005)
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Cite as: [2005] IEHC 343
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Neutral Citation No: [2005] IEHC 343
[2004 No. 817 JR]
BETWEEN
APPLICANT
RESPONDENT
NOTICE PARTY
JUDGMENT of Mr. Justice Abbott delivered on the 24th day of August, 2005.
This is an action stemming from the Moriarty Tribunal which is currently investigating payments to Messrs Charles Haughey and Michael Lowry who were politicians at the time which may be material to the business of the Tribunal. The applicant is a businessman who was the Chairman of Esat Digifone Limited when it was successful in the competition leading to the awarding of the second mobile phone licence in the State.
On 17th September, 2004, the applicant issued a notice of motion seeking leave to judicially review the decision of the respondents to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club (hereinafter referred to as DRFC) and the purported "connection" of Michael Lowry to the said purchase.
The application for leave was refused by Herbert J. in the High Court on the 30th September, 2004. The applicant appealed against the order of the learned High Court Judge. The Supreme Court delivered judgment on 12th May, 2004, and granted leave to apply for an order of certiorari quashing the decision of the Tribunal to investigate the connection of Michael Lowry to the purchase of the football club. The Supreme Court also granted an interlocutory injunction restraining the Tribunal from proceeding to hold public hearings in respect of the DRFC transaction until the determination of the application for judicial review.
On foot of the Supreme Court ruling, the applicant seeks the following reliefs:
(a) An order of certiorari quashing the decision of the Tribunal dated 27th May, 2004, to proceed to public hearings in respect of the purchase of DRFC and the purported connection of the Michael Lowry to the said purchase; and
(b) a permanent injunction restraining the Tribunal from proceedings to hold public hearings in respect of the Doncaster Rovers transaction.
The Grounds on which Judicial Review is Sought
The Grounds on which the applicant is seeking judicial review are as follows:
(a) that the terms of reference of the respondent do not empower it to investigate transactions taking place after the date of the establishment of the Tribunal and giving rise to payments to Mr. Michael Lowry; and
(b) that it was not reasonable for the respondent to determine that there was sufficient evidence before the respondent at the time of that decision to warrant proceeding to a full public inquiry into the involvement of Mr. Michael Lowry in the purchase of Doncaster Rovers Football Club.
The Moriarty Tribunal
By executive order dated 26th September, 1997, the Taoiseach appointed a Tribunal in which the respondent was nominated as the Sole Member to inquire into and to report and make findings on definite matters of urgent public importance outlined in resolutions passed by Dáil Éireann and by Seanad Éireann. These matters of urgent public importance included, inter alia, the following :
"(e)Whether any substantial payments were made directly or indirectly to Mr Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the Ethics in Public Office, Act 1995 or discharged at his direction), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office…
(g) Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) … or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision."
The resolutions passed by the Houses of the Oireachtas also required the Tribunal to conduct its enquiries in the following manner:
"(i) To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (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;
(ii) To inquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon;
(iii) In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed.."
Submissions of the Applicant
The applicant's contentions can be summarised as follows:
1. The applicant claims that there is no evidence of any payment, benefit or commercial involvement of Michael Lowry in the DRFC transaction.
2. It is claimed that the primary basis for the Tribunal's enquiries into the DRFC transactions is a letter written by a Mr. Christopher Vaughan to the Irish Times in September, 1995 alluding to the involvement of Mr. Lowry in the Doncaster transaction. And that there is no coherent explanation as to how this letter came to be written.
3. The applicant claims that the letter written by Mr. Vaughan does not indicate any involvement on the part of Mr. Lowry that would bring the matter within the Tribunal's terms of reference.
4. The case as presented by the Tribunal is that Mr. Lowry was involved because he was "in the room" when discussions had taken place regarding the lease on the DRFC premises.
5. The applicant avers that the Tribunal should not proceed to a public hearing in reliance on merely a "note of hearsay evidence" for the purpose of "establishing an involvement or interest of Mr. Lowry" with the terms of reference.
The Terms of Reference Ground
The applicant contends that the terms of reference of the Tribunal do not empower it to investigate a transaction that took place after the date of the establishment of the Tribunal and which may have given rise to payments to Mr. Lowry. The applicant refers to s. 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921 which provides as follows:-
"where it has been resolved (whether before or after the commencement of this Act) by both houses of Parliament that it is expedient that a Tribunal be established for inquiring into a definite matter described in the Resolution as of urgent public importance and in pursuance of the Resolution a Tribunal is appointed for the purpose…."
The applicant contends that on a literal interpretation of this section, before a Tribunal could be established under the 1921 Act, a matter must have happened in order for it to be considered either "definite" or of "urgent public importance". The applicant further contends that since the DRFC transaction had not taken place when the Resolutions establishing the Tribunal were passed in September 1997, it could not be literally suggested that the Sole Member was entitled to inquire into, or was deemed to have authority to inquire into something that had not yet happened. It is claimed by the applicant that the Tribunal's terms of reference solely cover any payment made to Mr. Lowry during any period when he held public office. The applicant contends that to interpret the Resolutions passed by the Houses of the Oireachtas otherwise would mean that Mr. Lowry and the applicant would be placed under permanent supervision by the Tribunal and that this was not envisaged by the Oireachtas.
The applicant also puts forward the argument that it would have been a simple matter for the Tribunal to have applied to the Houses of the Oireachtas to amend its terms of reference under s. 1 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1998, which amended s. 1 of the Tribunals of Inquiry (Evidence) Act, 1921.
The applicant accepts that the correct statement of the interpretation of the terms of reference of tribunals of inquiry is set out at page 56 of Haughey v Moriarty [1999] 3 IR 1, where Hamilton C.J. states at page 56:
"The learned High Court Judge in the course of his judgment expressed his views as to how the terms of reference set out in the resolution should be interpreted. The Court does not find it necessary to express any opinion as to whether the terms of reference are capable of more than one construction and, if so, whether that adopted by the learned High Court Judge is correct, because the Court is satisfied that it is not the function of the High Court or this Court to interpret the terms of reference of the Tribunal at this stage. The interpretation of the terms of reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself.
The Salmon Report stated at para. 79:-
"The Tribunal should take an early opportunity of explaining in public its interpretation of its terms of reference and the extent to which the inquiry is likely to be pursued. As the inquiry proceeds, it may be necessary for the Tribunal to explain any further interpretation it may have placed on the terms of reference in the light of the facts that have emerged."
The Court adopts that as a correct statement of the law and practice applicable to such tribunals in this jurisdiction. Accordingly, it does not find it necessary to decide whether any of the terms of reference are properly characterised as "vague": it will be for the Tribunal to determine, assuming that they are capable of more than one interpretation, which is to be the interpretation to be preferred in the light of the circumstances then prevailing."
The applicant contends that since the interpretation has been made by the Tribunal it is open to an applicant to bring proceedings on the grounds that such interpretation is either (a) ultra vires its terms of reference or (b) wrong and/or unreasonable. The applicant argues that since that interpretation has now been made by the Tribunal it is open to challenge on grounds of ultra vires.
The Insufficiency of Evidence Ground
This ground was identified by the Supreme Court in its judgment of 12th May, 2005 as follows:
"That it was not reasonable for the Respondent to determine that there was sufficient evidence before the Respondent .. to warrant proceeding to a full public enquiry in respect of the matter of the involvement of Mr. Michael Lowry in the purchase of Doncaster Rovers Football Club."
The applicant refers to the principle enunciated by the Supreme Court in Haughey v. Moriarty [1999] 3 IR 1, at page 74:-
"A tribunal of inquiry of this nature involves the following stages:-
1. a preliminary investigation of the evidence available;2. the determination by the tribunal of what it considers to be evidence relevant to the matters into which it is obliged to inquire;
3. the service of such evidence on persons likely to be affected thereby;
4 the public hearing of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on behalf of persons affected thereby;
5. the preparation of a report and the making of recommendations based on the facts established at such public hearing."
In relation to the above principles, the applicant submits that:
(a) the Tribunal failed to carry out an investigation in accordance with its
terms of reference;
(b) the Tribunal failed to carry out such an investigation using all the powers conferred on it under the Acts;
(c) the Tribunal failed to make a proper determination as to whether sufficient evidence existed to warrant proceeding to a full public inquiry.
The applicant argues that the only evidence according to the Tribunal justifying proceedings to public hearing was the letter of Christopher Vaughan and that if there had been any adequate private inquiry into this matter that it would have determined that there was no evidence supporting any involvement of Mr. Lowry in the Doncaster Transaction.
The applicant also referred to the fact that air transport arrangements of Mr. Lowry, details of which are in the possession of the Tribunal, would indicate that Mr. Lowry was not in England on the date as suggested by the letter of 25th September, 1995 and the applicants during the course of the trial pointed to further inconsistencies and hearsay evidence on the basis of none of which there was any evidence supporting the involvement of Mr. Lowry in the Doncaster transaction.
Re Haughey Rights
On behalf of the applicant it was urged that the public inquiry by the Tribunal into any involvement of Mr. Lowry in the DRFC transaction would afford the applicant his rights under the Constitution to defend his good name which were enumerated in the Re Haughey case [1971] I.R. 217 at pp. 263 in the judgment of O'Dalaigh CJ as follows:-
"(a) that he should be furnished with a copy of the evidence which reflected on his good name;
(a) that he should be allowed to cross-examine by counsel, his accuser or accusers;
(b) that he should be allowed to give rebutting evidence and
(c) that he should be permitted to address again by counsel, the Committee (Tribunal) in his own defence.
Counsel for the applicant submitted that it was not possible in this case to furnish the applicant with a copy of the evidence because there was no evidence even on a liberal definition of the word. He said that the right to cross examine by counsel would be effectively denied by reason of the absence of the writer of the letter of 25th September, 1995 Mr. Vaughan, and the inability or refusal of the Tribunal and Mr. Vaughan to facilitate such, even by having evidence taken on commission abroad.
Concession in relation to further private enquiries
Counsel for the applicant conceded that the Tribunal would be entitled to proceed in relation to further private enquiries if they had concern over the DRSC transaction and confirmed that it was not the purpose of this application for judicial review to prevent or inhibit such private enquiries as the Tribunal is empowered and enabled to do, but strenuously submitted against the right of the Tribunal to proceed to public enquiries.
The Respondents Submissions
The respondent submitted that notwithstanding the use of the words "payments made" in the terms of reference of the enquiry, the Tribunal at any time may (within the terms of the use of the past tense) enquire into payments made before the date of the actual private investigation and public hearing of the Tribunal provided that Mr. Lowry remained in public office. It was submitted that although Mr. Lowry was not a Minister at the date of the DRFC transaction, he remained at all material times a member of Dáil Éireann. Membership of Dáil Éireann was a public office.
The respondent submitted that the applicant had endeavoured in his submissions to the court to broaden the scope of the judicial review beyond the terms of the leave granted by the Supreme Court by seeking to introduce an issue in relation to the question as to whether the applicant was being accorded his "in Re Haughey" rights.
The test to be applied in relation to the second ground claiming judicial review was the test of reasonableness as set out in the O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 and State (Keegan and Lysaght) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 cases. The word "evidence" in the terms of reference of the Tribunal should be interpreted not in the sense of the term of art as understood in the courts, but rather more in the layman's sense of information pointing in a certain direction but not necessarily probative.
Decision
As regards the entitlement of the Tribunal to inquire into the DRSC fee transaction, notwithstanding that same took place after the resolution setting up the Tribunal, I do not accept the submissions on behalf of the respondent that the Tribunal at any time is entitled to inquire into payments allegedly made to Mr. Lowry once the Tribunal is enquiring at a time after the making of that payment however defined within the meaning of the Ethics and Public Office Act, 1995 after the date of resolution appointing the Tribunal. Apart from such a proposition being a contradiction in terms (as submitted by the applicant) there are sound public policy considerations based on the exercise by citizens of their important constitutional rights to earn a living, to associate or not to associate, and other legal and constitutional rights. In addition to the foregoing, consideration, is to be taken account that the exercise of Mr. Lowry of these rights is in the context of the exercise of his constitutional rights and duties as a member of Dáil Éireann under the Constitution.
The courts are bound to interpret the legislation and resolutions of Dáil Éireann in a manner which is consistent with the Constitution and it would seem to me that, save in the most exceptional cases, the Constitution would not permit the effective supervision of citizens into the future by scrutiny and enquiry of Tribunal. There are of course instances known to the law where a degree of supervision and scrutiny is allowed into the future. The most extensive of these instances which spring to mind first of all, are areas of the law dealing with minor and lunacy matters. However these are areas dealing with the activities and business of persons under a legal disability and different considerations apply. It would seem that, outside of these two main areas, the right to scrutinise and enquire in relation to future acts of citizens by any Tribunal or legal person would in my opinion have to be set out in very clear and detailed terms and not be dependent on a technical use of grammar and circularity of argument, such as that sought to be relied upon by the respondents in this case.
Such a statutory scheme may arise in relation to the entitlement of the courts to impose a prison sentence on a person convicted of certain drug offences to be reviewed at a later date in certain circumstances. Again these provisions have to be viewed in the light of provisions not dealing so much with persons under a legal disability as dealing with convicted persons whose constitutional rights have necessarily been severely curtailed by virtue of a prison sentence. I accept on first principles that the Oireachtas could not set up an inquiry in relation to payments to be made in the future if the provenance of such payments is entirely in the future. To suggest otherwise is plain nonsense, that is not to say of course that the Dáil is not free to set up a Tribunal of Inquiry in relation to areas of policies which of necessity involve the extrapolation of past trends and such activities as may be involved in the formulation of policy and decision making of government department bodies such as the Economic and Social Research Institute, the Central Bank in all areas of policy and especially the area of economic planning and prediction. However, these areas are clearly not what is envisaged in the Tribunal in this case. Having held that the Tribunal is prevented from enquiring into payments which have a provenance entirely in the future relative to the date of the resolution setting up the Tribunal, the question then arises in relation to whether it is open to the Tribunal to enquire regarding alleged payments if they have a provenance which, in the words of Mr. Justice Kearns in his judgment delivered on 12th May, 2005, in the Supreme Court on the appeal in relation to the issue of leave at p. 27 "straddles the date upon which the Tribunal was appointed and its terms of reference fixed".
In my view, the Tribunal would on its terms of reference be entitled to enquire in relation to payments relating to a transaction which straddles the date upon which the Tribunal was appointed and terms of reference fixed. This is because of the definition of "payment" noted in the terms of the reference of the Tribunal of Fennelly J. in the same appeal in the Supreme Court on p. 6 of his judgment where he notes "the term "payment" is defined as to include "money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the Ethics and Public Office Act 1995".
It seems to me that it would put an unduly restrictive interpretation on benefit in kind to exclude the benefit of a contract or an arrangement whereby the contract or arrangement might be made prior to the appointment of the Tribunal and the fixing of its terms of reference but the payment, performance or execution of the arrangement or contract could, or might take place after such appointment and fixing of Tribunal and terms of reference. Thus I am of the view that the benefits of such ambulatory or executory contracts or arrangements which "straddle" the appointment of the Tribunal and fixing of its terms of reference are benefits in kind within the terms of reference. In other words I consider that the DFRC transaction may only come within the terms of reference of the Tribunal if the alleged "involvement" of Mr. Lowry is being investigated as an alleged payoff in respect of some matter within the terms of reference of the Tribunal which occurred before the date of the appointment of the Tribunal and fixing of its terms of reference. In making this decision I am mindful of the finding of Mr. Justice Kearns in his judgment on the appeal on the application for judicial review in this case in the Supreme Court at p. 27 that "in the present case, no evidence of any sort whatsoever exists to suggest that the Doncaster transaction existed in any shape or form at the time of the Tribunal was set up … The transaction in no way straddles the date upon which the Tribunal is appointed and its terms of reference fixed. Every part of it post-dates that event".
I do not consider that I am bound by that view of the facts as the point was not fully argued in the context it received in the hearing before me and the point not argued is a point not decided. The fact is that the DRFC transaction arose in the same context, in terms of a significant overlap of professional personnel and business associates, as the Cheadle and Mansfield Properties transactions already investigated at public hearing by the Tribunal. I am therefore satisfied that the terms of reference of the Tribunal empower the Tribunal to proceed as proposed and the public inquiry proposed is within its terms of reference. Accordingly the first ground upon which leave to seek judicial review was granted to the applicant fails.
Reasonableness of the Tribunal in determining sufficiency of evidence
The judgment of Kearns J. in the Supreme Court appeal in this case dealing with the issue of sufficient evidence on pp. 11 – 22 inclusive, set out a detailed analysis of the law with which I agree. On pp. 17 – 18 he sets out a full detail of the available information which had been summarised in the written submission filed on behalf of the respondent to the Supreme Court. This information I find remains substantially available to the Tribunal, subject of course to further potential criticisms by the applicant in terms of the travel arrangements of Mr. Lowry and other information from personnel involved relating to the impossibility of other aspects of this information being accurate which arise during the course of the hearing of the application for judicial review. The application for leave to seek judicial review on the grounds of insufficiency of evidence was refused by Kearns J. for the reasons he set out in that aspect of the judgment, and I respectfully agree with his analysis. Indeed I consider that, having regard to the context in which the information has arisen following the Mansfield-Cheadle aspect of the Tribunal of Inquiry, unless a public inquiry took place in respect of the information now at hand notwithstanding the criticisms that may be levelled against it in all its frailties, that the purpose of the 1921 Act, as amended, under which the Tribunal has been established for the purpose of conducting a public inquiry, would be seriously undermined.
The comments of Hardiman J. in the Supreme Court judgment in Owen O'Callaghan v. Mahon and Others (Unreported Supreme Court 9th March, 2005 at p. 86) are applicable in focusing on the dangers of the Tribunal not proceeding to public hearing when in possession of the information available to it:-
"But I am deeply concerned that, if the information gathered in the private phase is to be shrouded in permanent secrecy there is a grave danger of a shift in the very nature of the tribunal itself. This procedure would alter the tribunal from being a public inquiry with private, limited, preliminary phase to one in which a good deal of the real business would be done in private. Specifically, a tribunal would itself in private of assessed contradictions in a witness' evidence and have formed the view, without submissions of any kind, that there were not sufficiently "gross, glaring or significant" to warrant exploration in public. There would be a danger, perhaps, if these procedures became general, that a Tribunal might itself become invested in the evidence of a particular witness to the point where it became insensitive as to contradictions in his or her evidence. There is also a danger, on the same basis, of the public perception of an element of the pre-selection of management of the evidence presented in public and an element of protection of a particular witness, which might be wholly unconscious on the part of a hypothetical tribunal".
I am satisfied that there is sufficient evidence to enable the Tribunal to proceed to public hearing not in the sense of the term of art understood in the courts but in the sense of giving cause for further enquiry. I am satisfied, by reason of the fact that the Tribunal is chaired by a High Court Judge, that the "in Re Haughey" rights of any person in respect of whom an adverse conclusion might be made in these proceedings will be well and truly safeguarded. The second ground for judicial review also fails.
Accordingly I refuse the application for judicial review.
Approved: Abbott J.