High Court of Ireland Decisions

Judgment Title: Murphy & Ors -v- Flood & Ors

Neutral Citation: [2006] IEHC 75


High Court Record Number: 2004 4910 P & 2005 100 JR

Date of Delivery: 14 February 2006

Court: High Court

Neutral Citation Number [2006] IEHC 75

THE HIGH COURT
Record No.[2004/4910P]
Between:
JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH Plaintiffs
MURPHY STRUCTURAL ENGINEERS LTD
-and-
FEARGUS FLOOD (THE FORMER SOLE MEMBER OF Defendants
THE TRIBUNAL OF INQUIRY INTO CERTAIN
PLANNING MATTERS AND PAYMENTS), ALAN
MAHON, MARY FAHERTY AND GERALD KEYS (THE
MEMBERS OF THE TRIBUNAL OF INQUIRY INTO
CERTAIN PLANNING MATTERS AND PAYMENTS),
IRELAND AND THE ATTORNEY GENERAL
AND
Between: Record No. 2005/100JR

JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH Applicants
MURPHY STRUCTURAL ENGINEERS LTD.
-and-
JUDGE ALAN MAHON (THE CHAIRMAN OF THE Respondents
TRIBUNAL OF INQUIRY INTO CERTAIN
PLANNING MATTERS AND PAYMENTS), IRELAND
AND THE ATTORNEY GENERAL



MR. JUSTICE T.C. SMYTH DELIVERED JUDGEMENT, AS
FOLLOWS, ON TUESDAY 14TH FEBRUARY 2006

The Tribunal and its Reports.
A Tribunal of Inquiry into Certain Planning Matters
and Payments ('the Planning Tribunal') was
established by Ministerial Order, on the 4th November
1997, to enquire urgently into the matters of urgent
public importance set forth in its Terms of
Reference. To the extent necessary for the
determination of these proceedings, the following
extracts are in point:-
"That Dáil Eireann resolves:
A. That it is expedient that a Tribunal be
established under the Tribunals of Inquiry (Evidence)
Act, 1921, as adapted by or under subsequent
enactments and the Tribunals of Inquiry (Evidence)
(Amendment) Act, 1979, to enquire urgently into and
report to the Clerk of the Dáil and make such
findings and recommendations as it see fit, in
relation to the following definite matters of urgent
public importance."
These are indicated and enumerated and (inter alia)
include -
"4(a)
The identity of all recipients of
payments made to .... members of ....
the Oireachtas, past or present, or
officials of a Dublin local
authority or other public official by
Mr. Gogarty or Mr. Bailey or a
connected person or company within the
meaning of the Ethics in Public Office
Act, 1995, from 20th June 1985 to date,
and the circumstances, considerations
and motives relative to any such
payment."

"B(v) to report on an interim basis not later than
one month from the date of the establishment of the
Tribunal or the tenth day of any oral hearing,
whichever shall first occur, to the Clerk of the
Dáil" on specific matters.
"C. And that the person or persons selected to
conduct the Inquiry should be informed that it is
the desire of the House that -
(a) the Inquiry be completed in as economical a
manner as possible and at the earliest date
consistent with a fair examination of the
matters referred to it, and, in respect of the
matters referred to in paragraphs 1 to 4
above, if possible, not later than the 31st
December, 1997, and
(b) all costs incurred by reason of the failure of
individuals to cooperate fully and
expeditiously with the Inquiry should, so far
as is consistent with the interests of justice,
be borne by these individuals."
On 26th February 1998, the Sole Member or Chairman
(hereinafter generally referred to as 'the Tribunal'
which expression shall be indicative by its use and
context) availing of the provisions of B(v) ante
sought/requested the Oireachtas to amend the original
Terms of Reference. By instrument dated 15th July
1998, the Minister for the Environment and Local
Government issued Amended Terms of Reference to the
Tribunal. While the amended Terms of Reference are
more extensive and direct enquiry into any
substantial payments directly or indirectly to a
named politician (Mr. Raphael Burke) and expressly provide for interim reports the desire of the House
as expressed in paragraph (F) is substantially the
same as that contained in paragraph (C) of the
original Terms of Reference.

When the Tribunal came to make interim reports and in
particular its Second Interim Report published 26th
September 2002 (hereinafter referred to as the 2nd
Report) it incorporated as Appendices A and B the
original and amended Terms of Reference. I am
satisfied as a matter of probability that the clear
provisions of the original and amended Terms of
Reference must be taken as something that would have
been known to the Applicants, who gave evidence to
the Tribunal and who had the benefit of legal advice
and were granted representation and availed of the
right to be represented before the Tribunal.
When the Tribunal issued the 2nd Report, to which
there is a preface, which is a form of explanation of its subject, purpose, scope and method of conduct, it
(inter alia) states as follows:-

"All citizens have a duty to cooperate
and assist a Tribunal and to tell the
truth when summoned to appear at a
public hearing. It is with
considerable regret that I have
concluded that I must report, as one of
my findings, that certain parties who
appeared before me chose not to
cooperate with the Tribunal in its
task, and, further, having been duly
sworn did not to tell the truth.
The extent to which their actions may
have involved them in breaches of the
criminal law is a matter upon which the
Director of Public Prosecutions has
absolute and exclusive jurisdiction. I
have decided to forward a copy of my
report to him to take such steps, and
to do with it, what he, in his absolute
discretion, considers appropriate.
I am very mindful of the significant
costs which have been incurred in
conducting the Inquiry to date. I have
endeavoured to conduct the Inquiry in
as economical a fashion as possible,
having regard to the rights of those
appearing before the Tribunal and my
obligations to the Oireachtas."

[Chapter 17 of the 2nd Report itself set out at
paragraphs 17.01, 17.02 and 17.03 what I believe to
be the true legal obligations under the Acts on all
parties and persons required to provide information
to the Tribunal].

The Introduction makes it clear that the Tribunal
considered it necessary to do so for a number of
reasons (inter alia) -
"1. The Tribunal has heard sufficient
evidence in public to enable to
pronounce with finality upon
certain payments made to
Mr. Burke."

The report does not record that it is pronouncing
with finality on anything else (e.g. under 4(a) of
either the original or amended Terms of Reference)
notwithstanding that evidence had been heard in "the
Gogarty Module" regarding payments to Mr. George
Redmond, in that regard Chapter 17, entitled
"Co-Operation with the Tribunal" it records in detail
the sentiments and approach to its task enunciated in
the preface, and also its findings.

At paragraph 17-04, it is recorded:
"In its review of the evidence
proffered to the Tribunal in the
modules in which the Tribunal has heard
evidence to date, the Tribunal has
concluded that the following persons
and corporate entities have hindered,
obstructed or not cooperated with the
Tribunal to the extent set out
hereunder. The findings made against
Mr. Joseph Murphy Snr. and Mr. Joseph
Murphy Jnr. apply pari passu to the
companies within the Murphy Group to
whom legal representation was granted
including Joseph Murphy Structural
Engineers Ltd..... "

Mr. Joseph Murphy Snr., against whom certain
findings were made, died in August 2000.
The relevant findings in "The Gogarty Module" are:-
"Mr. Joseph Murphy Jnr.
17-16. The Tribunal is satisfied that
Mr. Joseph Murphy Jnr. obstructed and
hindered the Tribunal by:
(a) Failing to give a truthful account
of the circumstances in which he came
to attend a meeting at the home of
Mr. Burke in June 1989, at which he
handed to Mr. Burke a sum of not less
than £30,000.
(b) Failing to give a truthful account
of his dealings with Mr. Michael Bailey
with regard to the participation
proposal, in which it was envisaged
that Mr. Michael Bailey would receive
50% of the value of the Murphys' North
Dublin lands in return for procuring
planning permission and building
bye-law approval in respect thereof.
(c) Giving a false account of the
involvement of Mr. James Gogarty in the
sale of the Murphy lands and the role
played by him in connection with the
payment of JMSE monies to Mr. Burke.
(d) Giving a false account of his
dealings with Mr. Michael Bailey
subsequent to the publication of the
Sunday Business Post articles.
(e) Falsely constructing an alibi which
was untrue.
Mr. Frank Reynolds
17-18. The Tribunal is satisfied that
Mr. Frank Reynolds obstructed and
hindered the Tribunal by:-
(a) failing to give a truthful account
of his involvement in the assembly of
funds which were paid to Mr. Burke by
JMSE.
(b) Falsely ascribing to Mr. Gogarty a
role in the payment of monies to
Mr. Burke which he knew to be untrue.
(c) Failing to give a truthful account
of his dealings with Mr. Michael Bailey
(d) Failing to give a truthful account
of the steps taken by him subsequent to
the publication of the Gogarty
allegations in the Sunday Business Post
editions of the 30th March and the 6th
April 1996.
(e) Colluding with Mr. Joseph Murphy
Snr., Mr. Joseph Murphy Jnr. and
Mr. Roger Copsey to present a false
account to the Tribunal of the role
played by Mr. James Gogarty in the
payment of JMSE monies to Mr. Ray
Burke."

A Third Interim Report dated 30th September 2002
(hereinafter referred to as the "3rd Report") was not
published until 21st January 2004 because as the
Tribunal noted, the information in the public media
as of September 2002 was that Mr. George Redmond was
awaiting trial in the Dublin Circuit Criminal Court
on charges of corruption arising from the performance
of his duties as Assistant City and County Manager
for Dublin. The 3rd Report completed the findings
upon "the Gogarty Module" of evidence referred to in
the 2nd Report.

Chapter 2 of the 3rd Report deals with the Forrest
Road Lands and the Tribunal drew a conclusion from
the fact that radically different accounts of events
were given by the witnesses before it. It expressed
its conclusion thus -
"2.41. The Tribunal concluded that the
conflicts which are apparent from
consideration of the evidence of the
parties could not be explained on the
basis that they were innocent failures
of recollection, mistakes or
misinterpretation of the true facts.
The Tribunal concluded that the
divergences in the accounts given by
the parties could only be explained on
the basis that some party, or parties,
had deliberately set out to mislead the
Tribunal. It was clear from the
disparities in the accounts given by
the various witnesses that some party,
or parties, gave false evidence to the
Tribunal as to the true circumstances
surrounding the service charges and
levies payable in respect of the
Forrest Road planning permission and as
to the role which Mr. George Redmond
played in ensuring that the 1983
charges applied, notwithstanding the
expiry of the planning permission on
the 21st June 1988."

Chapter 8 of this report dealt with co-operation with
the Tribunal, thus-
"8-03. The Tribunal is satisfied that
Mr. Joseph Murphy Jnr. hindered and
obstructed the Tribunal by:
(a) Failing to give a truthful account
of the circumstances in which he came
to pay Mr. George Redmond a sum of not
less than £12,246 for devising the
strategy that resulted in the Forrest
Road services charges and levies being
fixed at their 1983 level in respect of
any similar development taking place
within two years of the 21st June 1988.
(b) Failing to give a truthful account
of the circumstances in which he came
to pay Mr. George Redmond £15,000 at
the Clontarf Castle Hotel in July 1989.
8-05. The Tribunal is satisfied that
Mr. Frank Reynolds hindered and
obstructed the Tribunal by:-
(a) Failing to acknowledge that he
attended a meeting at the Clontarf
Castle Hotel where a payment of £15,000
was made to Mr. George Redmond by
Mr. Joseph Murphy Jnr. in his presence
and in the presence of Mr. Michael
Bailey and Mr. James Gogarty."

The foregoing regretfully extensive quotations from
the reports of the Tribunal represent the essential
historical basis upon which the proceedings were
contested. It was common case that the Court had no
appellate function, that the findings of the
Tribunal, particularly as to obstruction and
hindrance, were the determinations of the Tribunal,
although not accepted by the Applicants.

The Courts and Legal Proceedings.
Notwithstanding that the 2nd Report of the Tribunal,
published on 26th September 2002 contained the
several findings of the obstruction and hindrance
hereinbefore recited and was clearly final in its
terms in "The Gogarty Module" as to the payments to
Mr. Burke, the Applicants issued no legal challenge
by way of judicial review or otherwise to the conduct
or findings of the Tribunal.

When the 3rd Report of the Tribunal was published on
21st January 2004 with specifically relevant like
findings as to obstruction and hindrance as in the
2nd Report, save as to amount of payment and the
identity of the payee in "The Gogarty Module"
proceedings (in the form of a Plenary Summons) did
not issue until 20th April 2004 (i.e. one day prior
to the expiry of three month time limit for certain
reliefs under O.84 of the Rules of the Superior
Courts for judicial review).

The Tribunal as Defendants in the plenary proceedings
brought a motion dated 22nd December 2004; following
a hearing before Kelly J. on 24th January 2005, he
ordered that a preliminary issue be tried on four
specific questions centred on the issue of delay.
The Plaintiff's response was to file in the Central
Office of the High Court on 2nd February 2005 in
judicial review proceedings, a statement required to
ground an application for judicial review dated 2nd
February 2005. Mr. Murphy Jnr swore an affidavit on
27th January 2005 and a supplemental affidavit on
25th February 2005. The Notice of Motion was
returnable for 7th March 2005; upon a hearing of
which motion Kelly J. made an Order on 14th March
2005, on the undertaking of the Tribunal not to hear
any issue in respect of costs (i.e. "costs against",
for there had been a ruling on a "costs for"
application on 9th November 2004 which had proceeded
over the period 9th May 2003 (i.e. after publication
of the 2nd Report) to November 2004, and that there
would be no order on the judicial review application
but liberty to apply and the parties were given leave
to amend their respective pleadings. There was no
appeal from either order of 24th January 2005 or 14th
March 2005 of Kelly J. The decision of the Supreme Court in
BTF -v- DPP (unreported, delivered 3rd June 2005)
governed the outcome of the application for
directions and fixing of the date for the hearing of
the cases. It was ordered that issue of delay (and
other related issues the subject of the Order of 24th
January 2005) be dealt with as part of the full
hearing of the proceedings rather than as a
preliminary issue.

The plenary proceedings sought a range of declaratory
relief which may be broadly characterised as:
I. Challenges to the constitutionality of
section 6(1) of the Act of 1979 as substituted by
section 3(1) of the Amendment Act of 1997.

II. Seeking to have the findings of obstruction and
hindrance of the Tribunal's reports (2nd and 3rd)
declared null and void of no effect and ultra vires
the powers of the Tribunal which purported to
administer justice which was a function for the
Courts.

III. That fair procedures were not observed in a
variety of ways.

IV. That in awarding costs, the Tribunal ought not
to have taken into account the finding of facts or
conduct or alleged conduct that led to the setting up
of the Tribunal, but rather confine itself to the
conduct of Applicants at or before the Tribunal.

The judicial review proceedings began in February
2005 and they seek:

I. An Order of Certiorari to quash the decision or
order of the Tribunal of 9th November 2004 refusing
the applicants their costs "before" the Tribunal and
an Order of Mandamus to reconsider the costs
applications.

II. A declaration that the Tribunals of Inquiry
(Evidence)(Amendment) Act, 2004 and in particular
section 2(1) thereof insofar as it permits and/or
requires the Tribunal to rely on and/or have regard
to the substantive findings of the Tribunal and/or
its findings of obstruction and hindrance and to use
same as a basis for refusing the applications for
costs before the Tribunal is invalid having regard to
the provisions of the Constitution.

III. Other reliefs of wide-ranging intended effect
seek to challenge the constitutionality of the entire
Tribunals of Inquiry (Evidence) Acts 1921-2004.

IV. Orders of intended future effect are sought in
reliefs (e) and (j).

In my judgment it is of importance to note that
in "the grounds" advanced for relief is paragraph (c)
not only had the plenary proceedings expressly
referred to, but the issues upon which the Applicants
seek relief are set out in extenso. The principal
affidavit grounding the judicial review proceedings
is that of Mr. Joseph Murphy Jnr which as part of
exhibit JM3 contains the outline written submissions
of the Applicants for costs which expressly at
section C (9) states:
"For the avoidance of doubt, the
Applicants repeat the arguments
contained in the Statement of Claim in
the said proceedings (i.e. the plenary
proceedings) and in particular
paragraph 16 to 28 thereof, and thereby
request the Tribunal treat the said
arguments as having been incorporated
into the present outline written
submission."

(p51 of booklet for Judicial Review)
The second or supplementary affidavit in the judicial
review proceedings seeks to link both sets of
proceedings by means of cross reference (p113/4 of
booklet for Judicial Review)

Reviewing the proceedings at and before the Tribunal
as disclosed by the pleadings and documentary
evidence disclosed therewith and the oral evidence of
Mr. Joseph Murphy and the submissions at the hearing
before me, I am satisfied that the following issues
raised on two sets of proceedings before the Court as
to

(a) Constitutionality of statute and specific
statutory provisions other than the Tribunals of
Inquiry (Evidence) (Amendment) Act 2004.
(b) Findings as to obstruction and hindrance of the
Tribunal as to:
(i) the vires of the Tribunal to make such findings
in the context of S(6)(1) of the Act of 1979 as
amended relied upon, and the non-acceptance of the
Plaintiffs in this regard.
(ii) whether such constituted the purported
administration of justice and accordingly was a
matter for the Courts.
(c) The fairness or otherwise of procedures as to:
(i) the alleged unequal treatment of witnesses
(ii) the failure of the Tribunal to signal in advance
of a finding of obstruction or hindrance their mind
to do so and offer the Plaintiffs an opportunity to
make submissions in that specific regard.

These arose, if valid, as truly on the publication of
the 2nd Report on 26th September 2002 as at the date
of the publication of the 3rd Report on 21st January
2004 and all could have formed the basis of
proceedings by way of judicial review, which even
at "the leave stage" could by the direction of a
judge, if so minded, ordered to proceed on a plenary
basis particularly having regard to the
constitutional issue or issues raised.

For convenience, therefore, and not by way of
treating the issue of delay as a preliminary issue,
but as an issue to be determined in the proceedings
and before me, I now propose to consider the four
issues raised in the Order of Kelly J. for
determination.

Before embarking on a consideration of the issues
determined by Kelly J. to arise, it is necessary to
consider two matters referable to the 2nd and 3rd
Report:-
1) The Tribunal contends that the 3rd report is in
effect a "reiteration" of the 2nd report.
While undoubtedly there are findings in both
reports against the Applicants of obstruction
and hindrance, there are also the following
differences:-
a) Amount of payment
b) The identity of the payee
c) Analysis of particular factual evidence
d) Similar but different issues

Accordingly, in my judgment, this case is clearly
distinguishable from same facts evidence and the
decision in Finnerty -v- Western Health Board
(unreported, the High Court, 5th October 1998, per
Carroll J.). In my judgment, the 3rd Report is not a
"reiteration" of the 2nd Report. While they can be
said to be interlinked (they are not inextricably
linked) - it is clear from the text of the 2nd Report
itself that it is final only upon certain payments to
Mr. Burke. The final decision on the Burke payments
therefore was made known to the Applicants on the
publication of the 2nd Report.
2) The Tribunal contended that because there was no
challenge to the 2nd Report where the substantive
findings of 'Obstruction and Hindrance' appeared and
that as the 3rd Report had in effect like
confirmatory findings, the Applicants were estopped
by their conduct from proceeding to challenge such
findings in the 3rd Report. In my judgment, it is
inappropriate to introduce private law concepts of
estoppel into the public law field. Tribunal
decisions are taken in a sense in the name of the
public, and remedies against them must take into
account the interests of the general public which the
Tribunal was set up to protect or promote. Estoppel
binds individuals (as Lord Scarman pointed out in
Newbury District Council -v- Secretary of State for
the Environment 1981 AC 578, 616) on the ground that
it would be unconscionable for them to deny what they
have represented or agreed. See also Reprotech Ltd.
-v- East Sussex CC [2003] 1 IWLR 348 per
Lord Hoffman at p.357 para 33).

In the instant case the Applicants made no
representation or agreement on the publication of the
2nd Report, their inaction does not estop them from
challenging the 3rd Report.

Before considering the submission of the parties on
the question of delay in the bringing of proceedings,
I think it appropriate that I set out my findings of
fact on the oral evidence given by the First
Plaintiff in conjunction with the affidavit evidence,
above referred to, which was put to the witness in
cross-examination. I am satisfied and find as a fact
that:-
1. At all material times the Applicants had the
benefit of legal advice, and that Mr. Murphy kept in
touch by phone or fax with his solicitors on a
regular basis.
2. That on publication of the 2nd Report Mr. Murphy
was, on his own evidence -
(a) absolutely horrified about the finding of the
Tribunal in relation to the payment to Mr. Burke (T.4
p.11 q.43)
(b) absolutely devastated and felt criminalised by
the findings of the Tribunal of 'obstruction and
hindrance'. (T.4 p.11 q.44 l.19; p.45, l.25, 27;
p.12 q.50 l.20, 23)
3. Following the publication of the 2nd Report on
26th September 2002 in late 2002, he had a series of
meetings and consultations his lawyers to consider
the effects of the report and "so on".
4. That he received advice that he had no right of
appeal from the findings of the report: but swore he
received no advice on the ground that he was found to
have obstructed or hindered the Tribunal. I found
some difficulty accepting this latter part of the
evidence.
5. In early 2003 there was detailed correspondence
between the Applicants' solicitors and the Tribunal
in relation to costs and that specifically in May
2003 the solicitors challenged the jurisdiction of
the Tribunal to make a finding of 'obstruction and
hindrance' - asserting that it was a function
specifically reserved by the Constitution to the
Courts.
The 1st Applicant was aware of this submission at the
time of its being made.
6. That the Applicants decided to do nothing about
the findings in the 2nd Report (which included
findings of obstruction and hindrance) (T.4 p.24
q.111) but Mr. Murphy swore that he intended to wait
until the Third Interim Report, whenever that might
come, then the two would be taken together (T.4 p.24
q.108). However, he had earlier sworn that he "had
no idea if there was a Third Interim Report, when it
was coming out". (T.4, p.19 q.81 l.1-2). When asked
if the 3rd Report had not been published that no
steps would have been taken about the second report,
his response was "maybe not". (T.4, p.25 q.118 and a
like response to q.127 p.28) I found the evidence of
Mr. Murphy equivocative. I am satisfied that
notwithstanding whatever rights or entitlements he
might have had to challenge the 2nd Report of which I
am satisfied he was aware of, certainly by May 2003,
he elected not to exercise those rights. I am
likewise satisfied that as a matter of probability he
knew that there would be a Third Interim Report -
but did not know what it would contain and did not
decide to await its publication to challenge the
2nd and 3rd Reports together.
From the foregoing, the following questions arose for
determination.
(a) whether the proceedings herein ought to have been
brought by way of an application seeking Judicial
Review and, therefore, whether the use by the
Applicants of the plenary procedure constitutes an
abuse of process of the Court.

Legal Submissions.
(I) The Tribunal:
Objection was taken to the form of the proceedings,
it is contended that had they should have been by way
of Judicial Review. O.84 of the Rules of the
Superior Courts were adopted specifically to ensure
certain safeguards applied to challenges to decisions
of public bodies (such as the Tribunal). The purpose
of the order is to ensure that challenges are
initiated promptly, to ensure that those bodies are
protected against delayed applications and to ensure
certainty in respect of decisions of findings of
those bodies.

Delay must be analysed from both a procedural and
substantive aspect, and "the analysis commences with
the obligation to bring the application "promptly".
It is the key word which is the foundation of the
process. As to whether the application is prompt
will depend on all the circumstances of the case."
(De Roiste -v- the Minister for Defence [2001] 1 IR
190 at 204 per Denham J.)

By bringing plenary proceedings to circumvent both
the time limits and the obligation to bring
proceedings promptly as imposed by Order 84 was,
in the submission of the Tribunal, an abuse of
process: This argument is strengthened by the
bringing of the subsequent Judicial Review
proceedings. Furthermore, that as the declaratory
reliefs being sought by the Applicants are
discretionary in nature, the time constraints and
promptitude to be observed under O.84 ought to be
applied: and, that in any event the constraints were
applicable notwithstanding that the reliefs were
commenced by plenary proceedings.

(II) The Applicants:
The procedure provided for in Order 84 is not an
exclusive procedure for persons seeking declaratory
relief in matters of public law. The decision of the
House of Lords in O'Reilly -v- Mackman [1983] 2 AC
237 has not been followed by our courts and there was
no reason to depart from that position in the instant
case. It cannot be an abuse of process for a
claimant to request a court to exercise its
discretion on a matter of public law. That the
application for the reliefs sought in the plenary
proceedings were in relation to the 2nd and 3rd
Reports (the 3rd not being a reiteration of the 2nd
report) were brought timeously and certainly in
relation to the 3rd Report within the time
constraints of O.84.

Determination:-
I accept the submissions of the Plaintiff that there
is no exclusive procedure and that the authority in
the United Kingdom has not been followed in our
Courts and it is not therefore per se an abuse of
process to initiate proceedings by way of Plenary
Summons. However, where a procedure of the nature of
O.84 is provided for in the Rules of Court to cater
for the kind of reliefs sought in these proceedings
then such procedure should be followed. Furthermore,
the adoption by the Applicants of the plenary
proceedings does not excuse the non-application of
the time constraints provided for by O.84. While it
is not desirable that the form of action should
determine the relief to be granted, nevertheless
where claims for declaratory relief (which is
discretionary) are made, as they are in the instant
case), exactly the same considerations (as to time)
apply in the plenary proceedings as in the case of
Judicial Review, otherwise the Court would be
complisant with a Plaintiff in seeking to circumvent
the constraints of O.84.
(b) Whether the Applicants proceedings have been
brought promptly and in any event, within the time
limits prescribed by Order 84, Rule 21 of the Rules
of the Superior Courts?

Legal Submissions
(I) The Tribunal:
In the instant case there has been considerable delay
in instituting proceedings, accordingly, where the
relief sought is discretionary in nature, the Court
should look to the behaviour of the Applicants.
Reliance was placed on the decision in O'Donnell -v-
Dun Laoghaire Corporation [1991] ILRM 301 at 314:
"A declaratory order is a discretionary
order arising from the wording of a
statute which conferred jurisdiction on
the Court to make such orders (see
Wade, Administrative Law 5th ed, p.523)
and it is well established that a
Plaintiff's delay in instituting
proceedings may, in the opinion of the
Court, disentitle the Plaintiff to
relief."

In that case the Plaintiff had sought declaratory
relief by way of plenary proceedings, where Judicial
Review might have been more appropriate. Costello J.
(as he then was) applied by analogy the rules and
principles contained in Order 84 R. 21 (at p.314/5 of
the report). That decision was adopted and followed
in Futac Services Ltd. -v- Dublin City Council and
Others (unreported, the High Court 24th June 2003).
It was submitted that there was substantial,
unnecessary and inexcusable delay in challenging the
findings of the second report. There was a delay in
bringing proceedings for approximately a period in
excess of 19 months. This is not within the time
limits and assuredly not promptly as envisaged by
O.84 r.21. The evidence of the First Applicant at
paragraph 9 of his affidavit sworn on 27th January
2005 in the Judicial Review proceedings was that he
was 'deeply shocked and horrified' to read of the
findings of obstruction and hindrance of the
Tribunal, in its 2nd and 3rd reports; and, in
paragraph (11) of the same affidavit, that these
findings have been 'personally devastating'. At all
material times during the course of the hearing by
the Tribunal and thereafter, the Plaintiff had the
benefit of legal advice. Further, at paragraph 7 of
his affidavit sworn on 25th February 2005 in the
plenary action, Mr. Murphy avers:
"....therefore, where the Third Interim
Report appeared, containing damning
findings of obstruction and hindrance
arising from the flimsiest evidential
base and on the basis only that the
Tribunal preferred two bare allegations
in the evidence of Mr. Gogarty to all
of our evidence, it is quite literally
the straw that broke the camel's back."

The evidential background against which Kelly J.
refused an order for Judicial Review is that set out
in the affidavit evidence and the Judge is attributed
as expressing the view en passent in an impromptu
opinion that had it been a "leave application" in
24th January 2005 that he would have granted an
extension of time to enable the bringing of an
application for Judicial Review. Even if this be so,
it would not be a bar to the raising of the time
issue on the hearing of the application for Judicial
Review. The Applicants concede that they are outside
the time to challenge the 2nd Report and effectively
that the onus is on them (per Costello J. in
O'Donnell's case [1991] ILRM 301 at 315 to satisfy
the Court that there are reasons which both explain
the delay and afford a justifiable excuse for the
delay. The following reasons were advanced in the
submissions of the Applicants:-

(I). The split between the 2nd and 3rd Report is
artificial, it was a split of one body of evidence
(i.e. "the Gogarty module"). That it was objectively
reasonable for the Applicants to await the outcome of
the 3rd Report before challenging the 2nd Report.

In my opinion the character of the legal challenge is
similar but the decisions are separate and it is 'the decision' that is challenged. The Applicants
cannot, in my judgment, at one and the same time
argue that the decisions are distinct and seek to
avail of delay in one as justified because the 3rd
Report decision may have been challenged in time.
(II) There would be an unreality if the Applicants
were to be permitted to challenge the 3rd Report
decision on 'obstructing and hindering' and precluded
an entitlement to challenge the like element in the
2nd Report decision.
(III) It is desirable that the Court should decide
any issue which might obviate the need for the Court
to pronounce upon the constitutionality of a
statutory provision.
(IV) That as it was an undisputed fact that the
Applicants were within time in challenging the
decisions on costs (which was in part influenced by
the findings of 'obstruction and hindrance'), it
becomes necessary to consider and decide as a matter
of legal principle whether the Tribunal had power to
make findings of 'obstruction and hindrance'.
(V) The issues, and particularly the power of the
Tribunal to make findings of 'obstruction and
hindrance' are matters both of public importance and
public interest.
(VI) There is no prejudice to the Tribunal or third
party in having the issues litigated either as at the
dates of the issue of either set of proceedings or at
the date of hearing.

Determination:
It was conceded that it was possible to issue
judicial review proceedings embracing certiorari and
the constitutional issues on the publication of the
2nd Report (T.7 p.7/8). In my judgment if the points
made in either set of actually issued proceedings
(save as to costs) are good or valid, then they were
so on the publication of the second report.
If Mr. Murphy was devastated and shocked by the
finding that he had obstructed and hindered the
Tribunal in its work and advanced the case as one of
error in legal principle, it was not in my judgment
objectively reasonable to let such go unchallenged
and that promptly and within time. He should have
been particularly prompt on the issue of the 3rd
Report (which he at once speculated would issue or
did not know if there was going to be a 3rd Report).
He did not require to be twice damned (for that is in
large measure in layman's language the substance of
his complaint) to spring into action. If Mr. Murphy
deliberately awaited the 3rd Report, and had it not
issued prior to the Court hearing in October 2005, he
said he may not have challenged the 2nd Report.
(T.2 p.25 Q.118 l.21-27).

In my opinion, it not pointless, if appropriate, to
permit a challenge to findings of obstruction and
hindrance on the 3rd Report and to preclude it in
respect of the 2nd Report. The Applicants cannot at
one and the same time argue that the decisions are
separate and distinct and each to be judged
independently and that one is subsumed or
inextricably bound into the other so that they stand
or fall together. The rational of certainty in the
law lies in its ability to promote justice and to
serve the needs and expectations of the community.
The right of the Applicants to challenge the
2nd Report promptly and within time not having been
exercised, the community was entitled to expect the
decision to stand and to regard the inquiry on the
matter of urgent public importance as completed.
In my judgment, the Applicants are not entitled to
challenge the determinations in the 2nd Report but
that does not preclude him from challenging the
determinations in the 3rd Report. This is not a
futile exercise.

Given the alleged sense of grievance of the
Applicants concerning the 2nd Report, making findings
of obstruction and hindrance, which they did not
challenge for 19 months, there was in my opinion an
added sense of obligation to challenge the 3rd Report
promptly. This they did not do. They left it to one
day within the period set as the latest under the
rules to challenge the 3rd Report. Notwithstanding
that in such circumstances I find that there are
valid grounds for exercising my discretion against
permitting a challenge to the 3rd Report, I would not
wish to rest a judgement on that basis. I would
prefer to take a more liberal view informed by the
decisions in De Roiste -v- the Minister for Defence,
2001 1 IR 190 per Denham J. at 204 and Fennelly J. at
221, O'Callaghan -v- McMahon, Supreme Court, 9th
March 2005 per Hardiman J., observing that a Judicial
Review application in that case was made within one
week of the decision challenged and from which the
instant case is clearly distinguishable, and O'Brien
-v- Moriarty, Supreme Court, 12th May 2005 per
Fennelly J.. I do not believe that the Respondents
can conclusively argue that there is some special
substantial factor which should defeat the Applicants
challenging the 3rd Report.

The case sought to be made by the Applicant that the
Tribunal did not grant those before it equal
treatment, was expressly directed to Mr. Gogarty's
evidence, such arose years before legal proceedings
issued. Documents obtained by the Discovery process
and proven by oral evidence as so obtained, but not
(other than admitted as records of the proceedings
before the Tribunal and others as having emanated
from or received by the Tribunal) proof as to the
truth of their contents were sought to found this
case. In my judgement, if there ever was a case in
this regard, and even disregarding the fact that Mr.
Gogarty is dead, no meaningful or serious or any
challenge was brought, even when appropriate, and I
do not consider it appropriate in Judicial Review or
on the oral evidence to adjudicate ex post facto on
certain discovered documents related to objections
before the Tribunal and an attempted retrospective
application of the decision in O'Callaghan -v-
McMahon ante, for such would be to completely ignore
the time limits of Order 84 R.21.

If this was a valid complaint, and I make no
adjudication on it as an issue, it was as valid when
first raised before the Tribunal as when complained
of to the Court and even permitting a challenge to
the 3rd Report, I would not grant relief (1) on the
state of the evidence, (2) the inexcusable delay and
indeed the inexplicable delay in bringing the
proceedings and (3) in permitting the work of the
Tribunal to proceed and when the outcome was not to
the liking of the Applicants then to issue
proceedings. Furthermore, the first three personal
Applicants were invited to attend the Tribunal in
private, having first been notified in advance of the
questions that would be asked and were invited to
provide the Tribunal with a written statement in
respect of these questions. Both the First and
Second Applicant declined by letter dated 30th
September 1998. This submission was unchallenged at
the hearing in court. If they were subsequently at a
disadvantage from such election, it does not point to
any want of fair proceedings or fair procedures. In
my judgement, the Applicants declined to engage with
the Tribunal in private and issues became
controversial in public which required determination.
They cannot reasonably make many of the complaints
they did in public at the Tribunal and before the
court in that context. Furthermore, equality of
treatment of witnesses does not mean that identical
treatment must be accorded to each witness, for such
does not allow for differences of capacity, age, the
role and relative importance of each witness or the
variants that context provides before courts or
tribunals.

The Legislative Framework.
The Tribunal was originally established under the
Tribunals of Inquiry (Evidence) Act, 1921, as adapted
by and under subsequent enactments and the Tribunals
of Inquiry (Evidence)(Amendment) Act, 1979. On the
occasion of the Amended Terms of Reference, the
Tribunal was requested by the Dáil to conduct its
enquiries in a particular manner to the extent that
it may do so consistent with the Tribunals of Inquiry
(Evidence) Acts 1921 to 1998, specifically in the
Amended Terms of Reference-
"F. And that the Sole Member of the Tribunal should
be informed that it is the desire of the House that-
(a) The enquiry into the matters referred to in
paragraph E hereof [referable to
Mr. Raphael Burke] be completed in as
economical a manner as possible and at the
earlier "(stet)" date consistent with a fair
examination of the said matters, and
(b) All costs incurred by reason of the failure of
individuals to cooperate fully and
expeditiously with the Inquiry should, so far
as is consistent with the interests of justice,
be borne by those individuals."

The Act of 1921 (the Principal Act) provides that
where the instrument by which the Tribunal is
appointed provides that the Act is to apply
"the Tribunal shall have all such powers, rights and
privileges as are vested in the High Court" in
respect of a limited range of matters. Section 3 of
the Act of 1979 substantially amended Section 1 of
the Principal Act. It is provided that if a person-

"(c) willfully gives evidence to a
tribunal which is material to the
inquiry which the tribunal relates and
which he knows to be false or does not
believe to be true, or
(d) by act or omission, obstructs or
hinders the Tribunal in the performance
of its functions.
the person shall be guilty of an offence."

Section 1(2A) deals with the offence in the context
of the criminal law as separate and distinct from the
context of the Tribunal.

I am satisfied and find as a fact and as a matter of
law as determined by the several authorities referred
to by Counsel that-

i) The Tribunal was and is not an adversarial but
rather an inquisitorial hearing.
ii) There was and is no lis inter partes.
iii) The Tribunal was not prosecutorial and the
question of any charges of obstruction and hindrance
is a matter for another authority, to wit, the
Director of Public Prosecutions.
iv) The evidence given at the Tribunal could not and
cannot be used in any criminal proceedings. If the
Director of Public Prosecutions is prosecuting, he
must assemble evidence in the ordinary course for a
prosecution.
v) The Tribunal in making its findings made, as it
must, its determination on "the balance of
probabilities", not on a criminal standard of proof.

I reject the submissions of the Applicants that the
Tribunal when it made its finding of "obstruction and
hindrance" acted ultra vires, or was administering
justice as a court or making any determination of a
criminal offence. I accept the submission of the
Defendants that the Tribunal in making its findings
based on its enquiries, and reporting those findings
to the Oireachtas with its recommendations, was
operating within its Terms of Reference and the
legislation embraced therein in governing the
Tribunal.

The report of The Ansbacher Tribunal (otherwise
referred to as "The McCracken Tribunal") also had
reason to consider Section 1(2) of the Principal Act
as amended by the Tribunals of Inquiry (Evidence)
Amendment) Act 1979, concerning 'obstruction and
hindrance' in Chapter 10. That report noted that
protracted correspondence and unforthcoming
information "was most unhelpful and very time
consuming for the staff of the Tribunal to deal
with". While the language differs from the report
of the Tribunal in the instant case - the intendment
is the same: McCracken concludes-

"It is not for the Tribunal to
determine whether Mr. Charles Haughey
should be prosecuted pursuant to the
section quoted above as this is a
matter for the Director of Public
Prosecutions. However, the Tribunal
considers that the circumstances
warrant the papers in the matter being
sent to the Director of Public
Prosecutions for his consideration as
to whether or not there ought to be a
prosecution, and the Tribunal intends
to do so."

The language in which the Tribunal records the facts
ascertained by it may differ from one tribunal to
another - what is clear is that it is for the
Director of Public Prosecutions to make his own
decision on the material referred to him and such as
he may gather as to whether to prosecute or not. The
view of the Tribunal is not determinative of a
criminal offence. The fact that Mr. Murphy "felt"
criminalised is not to say that the Tribunal
determined or purported to determine that a criminal
offence had been committed.

It is true that the Terms of Reference do not in
express terms empower the Tribunal to make findings
of 'obstruction or hindrance', but both the original
Terms of Reference (dated 4th November 1997) and the
Amended Terms of Reference (dated 15th July 1998)
postdate the enactment of the Principal Act and the
Act of 1979. The Amended Terms of Reference also
postdate the enactment of the second of the Acts of
1997 [No. 42 of 1997] and the further amending Act of
1998 (No. 18 of 1998) enacted on 12th June 1998. In
mandating the Tribunal to make inquiry "and making
such findings and recommendations as it sees fit",
the Dáil resolution was cast in the context of the
specific statutes.

In my judgment the Tribunal was entitled to find as a
fact if there was evidence (including conduct before
the inquiry and/or in correspondence or Discovery
matters) before it of any of the matters set out in
Section 3(2)(a) to (f) of the Act of 1979 on the
balance of probabilities. That a prosecution, on its
own evidence and tested by the criminal standard of
proof might arise under the same headings, is nihil
ad rem. The Applicants complain that when they
sought some guidance from the Tribunal at the end of
the evidence but before the Tribunal formulated its
findings, the Tribunal did not alert them to the
possibility that any findings might be made other
than in respect of substantive matters. In my
opinion there was no obligation to make the response
contended for - it would be speculation on my part to
try and determine at what stage in the decision
making process the decision was even in formulation.
The Applicants were left at liberty as to what
submissions they wished to make in relation to the
issues the subject of the Tribunal. It is an
opportunity afforded to advocates in many cases,
sometimes the opportunity is taken to canvass the
Court on the cooperative nature of one witness in
assisting the Court or to criticise the impediments
placed before the Court by a witness in opposition
and how a lack of candour added to the length of
trial.

In these proceedings, the Applicants challenge (1)
the findings of the Tribunal as to obstruction and
hindrance, (2) the rulings of 3rd June 2004 on the
principles to be applied by the Tribunal in ruling on
costs and the ruling of 9th November 2004 refusing
the Applicants any elements of the costs, in which
the Tribunal relied on the findings of obstruction
and hindrance as well as the finding of corruption
contained in both the 2nd and 3rd Reports.
Notwithstanding my determination that the Applicants
cannot now challenge the findings of the 2nd Report
they are within time to challenge the specific ruling
of 30th June 2004 by service of the amended Statement
of Claim of 28th July 2004 in the plenary
proceedings. The challenge to the ruling of 9th
November 2004 was brought within the time limits of
Order 84 R.21 by service of the Judicial Review
proceedings on 7th February 2005.

Specifically in relation to costs, the Applicants
challenge:-

a) the validity of the findings of obstruction and
hindrance upon which part of the rationale of the
refusal of the Applicants' cost is based.
b) the entitlement of the Tribunal to take into
account its findings of obstruction and hindrance in
the exercise of its discretion in relation to costs.
c) the entitlement of the Tribunal to take into
account its substantive findings of corruption in the
exercise of its discretion in relation to costs.
d) the constitutional validity of the legislation
which, contrary to the Applicants' submissions,
permit the Tribunal to make findings of obstruction
and hindrance or permits the tribunal to take into
account such findings and/or its substantive findings
of corruption in the exercise of its discretion as to
costs.

The specific grounds of constitutionality relied upon
in this regard are that, if permitted by the
legislation, to act in the manner in which it did,
the Tribunal has crossed the threshold into the
realms of administering justice contrary to
Articles 34 and 37 of the Constitution and further
that such findings would be contrary to Articles 38,
40.1 and 40.3 of the Constitution.

The factual background to the rulings may be briefly
stated by noting that the Applicants were engaged in
the workings of the Tribunal for 163 hearing days and
over and appreciable length of time were in
communication with and made Discovery to it. As
noted subsequent to the hearing of the evidence, the
Applicants, with others, were invited to make
submissions as they wished to the Tribunal. This is
not a mere invitation to tender an explanation of
past events. It comes towards the end of a process
of enquiry and is therefore clearly distinguishable
from the decision in Gallagher -v- Corrigan,
(unreported) the High Court, 1st February 1998 per
Blayney J. The Applicants, through their solicitors,
by letter dated 20th July 2000 responded to the
Tribunal and enumerated what appeared to be the
allegations against them and then stated:

"We believe it to be of the utmost
importance that if the Tribunal is of
the view that we have not identified
correctly the allegations made against
our clients, or if we have failed to
identify all of the allegations that it
inform us of that fact prior to the
making of submissions."

The response of the Tribunal of 28th July 2000 was
not to be drawn into the debate sought in the
solicitors letter, but to (inter alia) state:-

"2. The Sole Member does not consider
that it would be appropriate at least
for the present to given indications or
guidance in relation to any submission
that any party may wish to make.
However, all parties will be aware [of
the amended terms of reference]."
4. The Sole Member notes the contents
of the schedule furnished by you
containing what you say are 'the
allegations made against the Murphy
interest'. The Sole Member will
consider all the evidence before he
makes any finding and if, having
reviewed the evidence and having
considered all submissions, if any, he
is of the view that it is necessary for
him to hear submissions on any
particular point not already covered
then he will invite submissions on any
such issue."

It is also clear from this letter that the Tribunal
did not wish to be canvassed on the evidence given to
it. It is settled law that a Tribunal is not a
court, even though it may use and have available to
it elements appropriate to court procedure.
Nevertheless, in arriving at its findings on the
issues referred to it, the Tribunal was entitled, as
at the same time to indicate what witnesses or
evidence was of assistance or hindrance to it in its
deliberations. Indeed the absence of such an
incidental and necessary finding or indication or
decision could justifiably give rise to a complaint
that the findings on the issues referred to the
Tribunal had been arrived at in the form of a dictat
or summary or prefunctory manner. When the Tribunal
published the 2nd Report on 29th September 2002 it
referred both in its preface and in chapter 17 to the
matter of non-cooperation by the Murphy interest and
specifically at 17-04 stated:

"There is an obligation upon every
witness called to the Tribunal to give
a truthful account of the matters upon
which they are questioned and failure
to do so can amount to a failure to
cooperate with the Tribunal which can
have serious consequences as regards
costs and otherwise."

The report is to be read as a whole and in Chapter 2,
paragraph 2.06, the Tribunal acknowledges its
separateness from the functions of the DPP in what
may involve breaches of the criminal law.

Subsequent to the publication of the 2nd Report and
before the publication of the 3rd Report on
21st January 2004, the Tribunal wrote to the
Applicants' Solicitors as well as to others on 16th
April 2003 in the following terms:-

"In the light of the findings of the
Tribunal made in relation to your
clients, the Chairman has directed that
you be afforded the opportunity to make
oral submissions to him at a public
sitting of the Tribunal to take place
on 6th May 2003 on the principles which
should be applied by him in exercising
his discretion under this section in
relation to the costs claimed by the
persons who fall within the category of
persons against whom findings of
corruption were made or who have been
found to have obstructed or hindered
the Tribunal or to have failed to
cooperate with or to provide assistance
to the Tribunal as requested."

The letter went on to state that subsequent to
hearing all submissions of all parties on this issue,
the Tribunal would then proceed to hear applications
for costs from individuals who fall within the
aforesaid category who were seeking an order for
their own costs to be paid by the State. The
Tribunal indicated that having determined the
entitlement of these individuals to their costs:

"...the Chairman will then proceed to
deal with any applications which are
brought by the Attorney General or the
Minister for Finance or any other party
who is seeking an order providing that
the costs of others, including the
Tribunal, should be paid by parties
other than the State. If such an
application is made by any party
requiring you to pay the whole or any
part of the costs including the costs
of the Tribunal, you will be notified
of any such application and you will be
afforded an opportunity of making
submissions in relation thereto,
whereupon a date for the hearing of
such application will be fixed."

Subsequent to the initiation of the plenary
proceedings challenging the Tribunal's findings of
obstruction and hindrance and the enactment of the
Tribunals of Inquiry (Evidence)(Amendment) Act 2004,
the Tribunal again wrote to the Applicant inter alia
as follows:-

"I write to inform you that it is the
intention of the Chairman of the
Tribunal to sit on Monday 14th and
Tuesday 15th June 2004 to hear
submissions on the principles which
should be applied by him in the
exercise of his discretion when dealing
with applications for costs made by
persons (a) against whom findings of
corruption have been made; or (b) who
otherwise fail to cooperate with or
provide assistance to the Tribunal and
whose conduct was reported on in the
Second and Third Interim Reports of the
Tribunal.
The Tribunal has already acknowledged
receipt of your written submissions and
will accept the written submission
already made by you in relation to his
earlier request as being applicable to
the present legislative provisions.
The Chairman does not believe that the
issues raised by your client in the
present proceedings are material to the
issues intended to be addressed on
14th June 2004. Your participation in
this process will not be deemed to
amount to an acknowledgment by your
clients of the right of the Tribunal to
make findings of obstruction and
hindrance against persons who have been
the subject of its inquiry."

The Applicants made written submissions and in oral
submissions sought a deferral by the Tribunal of its
ruling until the determination of these proceedings.
Not surprisingly, given that the 2nd Report has been
in circulation for almost a year and a half, or
indeed more, the Tribunal refused the Applicants'
request. Specifically and central to the arguments
made before the Court, the Applicants submitted to
the Tribunal that it ought not to have regard to the
substantive findings of corruption when settling the
principles to be applied in respect of costs. That
submission was based on a construction of the
legislation and an interpretation of the decision of
the Supreme Court in Goodman International & Anor.
-v- The Honourable Mr. Justice Liam Hamilton & Others
[1992] 2 IR 542, to which I shall return.

In the ruling of the Tribunal on the principles to be
applied on an application for costs by persons
against whom a finding of corruption has been made,
the Tribunal concluded that it was entitled to have
regard to such findings when exercising its
discretion on costs. Notwithstanding that ruling and
the proceedings as they then stood at that date, the
Applicants made application for their costs and the
adverse ruling of 9th November 2004 is challenged
herein. It is clear from that ruling that the
non-cooperation of a serious nature was a factor
taken into account in the ruling of 9th November
2004. The ruling inter alia states:-

"In spite of the serious findings of
corruption on the part of some of the
Applicants, I would have considered
awarding a portion of their costs had
they chosen to fully and honestly
cooperate with the Tribunal."

The foregoing rulings relate to "costs for"
determinations. Although the Tribunal has not
addressed the issue as to whether costs should be
awarded against any party, and has not even addressed
the issue in principle, the Applicants claim to stand
in "real and imminent danger" that costs will be
awarded against them by the Tribunal. (See the
amended Statement of Claim, paragraph 26).

The manner in which the Applicants framed their claim
in the re-amended Statement of Claim and in which
they put their cases in written submissions make it
clear that their primary focus is on the Tribunal and
on its findings and rulings. The claim against the
State Defendants (Ireland and the Attorney General)
is very much an alternative claim which seeks to
challenge the constitutionality of unspecified
provisions of the Tribunals of Inquiry (Evidence)
Acts as being in breach of Articles 38, 40.1 and 40.3
and Sections 6(1) of the 1979 Act (as amended) as
being in breach of Article 34 of the Constitution.
Applying the doctrine of judicial self-restraint,
I defer a consideration of this matter until I have
dealt with the case against the Tribunal. Taking a
conspectus view of the evidence, I am satisfied and
find as a fact that there was evidence before the
Tribunal upon which it was entitled to make the
findings and rulings it did. The question that then
arises is did it have the power in law to do so and
act as it did? It is common case that a Tribunal
under Section 6 of the 1979 Act as amended by
Section 3 of the 1997 Act does envisage a Tribunal
having power to make findings of inter alia failure
to cooperate. It seems reasonable and in my opinion
necessary to infer that the legislature in so
providing would not emasculate such power as to
inhibit a Tribunal from making findings as to degrees
of culpability in this regard. To so limit the
tribunal would be to fail to distinguish between
formal non-cooperation, perhaps through oversight or
genuine misunderstanding, and active or deliberate or
sustained conduct of omission or commission such as
hindered a tribunal. To so limit or circumscribe the
power of the Tribunal in the context of the
legislation could work a manifest injustice. In my
judgement, in making such distinctions as it did in
the instant case, the Tribunal went no further than
was necessary and properly required to do to carry
into effect the task entrusted to it and that in its
making findings of obstruction and hindrance, such
may be fairly regarded as incidental and
consequential upon those things which the Oireachtas
authorised. The fact that in a different forum and
evidence tendered to it tested by a different
standard of proof, conduct set out in Section 3(2) of
the Act of 1979 is a criminal offence and did not
make the decision of the Tribunal ultra vires.
Further, only the Courts have the punitive power in
the event of a successful prosecution.

Furthermore, in arriving at its determination on the
issues submitted to it, a Tribunal must have regard
to the evidence and credibility of witnesses. Having
heard the evidence and invited the submissions of the
parties, there was not, in my judgement, any further
necessity for the Tribunal to invite a further
hearing on whether particular evidence or the lack of
it or the conduct (of omission or commission) and the
demeanour of a witness or witnesses fell within any
particular category or range of credibility or in the
spectrum of complete co-operation or non-cooperation
amounting to obstruction and hindrance. The
arguments of the Applicants, when reduced to its
essence, was that a tribunal of inquiry entitled to
pronounce on the question of co-operation was
confined to degrees of comparison: un-cooperative,
more un-cooperative, most un-cooperative. The
function of the Courts in this context is to be
satisfied that the Tribunal had the appropriate
authority to exercise the power to make the findings
it did and observe proper procedure and apply the
entitlements of the concept of, and the precepts of,
natural justice as laid down in the decisions of the
Courts. It is not, to adopt an expression of
Marquez, "a millimetric task of hunting down errors
in the thickets of language". In short, in my
judgement, the Tribunal was entitled to make a
finding of obstruction and hindrance at one and the
same time as its primary findings. Furthermore, the
Tribunal in the process of its decision making was
not obligated to notify any person in advance of its
final decision as to what view it had formed of the
conduct of any party where such party had appeared
before the Tribunal and had the opportunity of
availing of and exercising its legal rights and
entitlements. A consideration of the evidence cannot
be divorced from the person or persons giving their
evidence and their credibility and conduct cannot be
realistically isolated completely from any such
evidence.

Paragraph C(b) of the Terms of Reference enjoins the
Tribunal to ensure that all costs incurred by reason
of the failure of individuals to cooperate fully and
expeditiously with the Inquiry should be borne by
those individuals. Clearly, therefore, before any
'costs stage' could be arrived at, parties must have
been and were effectively on notice that the issue of
full co-operation would be considered by the Tribunal
and that when the 'costs stage' was arrived at, all
the co-operation or non-cooperation that had preceded
that stage, i.e. the 'costs stage', would be of
importance. There was, in my judgement, no denial of
opportunity to be heard on the question of
non-cooperation at any level or to any degree before
the decision was made and published by the Tribunal.
The invitation to make submissions was general, the
limitation was simply on canvassing the evidence.

The unchallenged submission of the Tribunal was that
in stating his interpretation of the terms of
reference on 21st October 1998, the Tribunal, through
the Sole Member, stated:

"....The Tribunal has an overriding
duty to discharge its urgent public
mandate from the Oireachtas to the
extent possible. The Oireachtas has in
the Terms of Reference anticipated the
possibility that certain individuals
may fail to cooperate fully and
expeditiously with this Inquiry. In the
event that the Tribunal were to
conclude that a given individual or
entity did in fact fail to cooperate
fully and expeditiously the Tribunal
will report that "finding" to the
Oireachtas."
If the Applicants wished to challenge the power of
the Tribunal to make such a "finding", it should have
been challenged then. Vires cannot be conferred by
acquiescence, but if there was a bona fide belief in
such an argument, it was and is unjust that the
Tribunal should not have been then challenged rather
than proceed with its business to the stage to which
it did before matter was raised.

Objection is also taken to the distinction drawn by
the Tribunal which reported that some witnesses had
failed to cooperate whereas the Applicants were held
to have obstructed or hindered the Tribunal. As
noted, there are degrees of co-operation or
non-cooperation and the Tribunal was entitled to
distinguish such matters of degree. The Tribunal in
the exercise of its function is not a mere listening
post for all tendered evidence, it is, subject to the
safeguards of the law, obligated to ascertain facts -
the discernment applied in that task is concerned
very often in trying to reconcile various elements
and on occasion, in cases of conflict, determining on
the balance of probabilities what are the reliable
facts and who are the reliable witnesses. The task
of the Tribunal was to enquire into the meaning and
truth of past events, if genuine conflict arises on
facts, such inquiries require to be investigated and
resolved. In the expression of a finding, view or
opinion based on facts, the Tribunal is not to be so
circumscribed as to be neutered. A person, even if
assisting the Tribunal, is entitled to challenge a
fact stated to exist and prove matters to the
contrary. A person is not entitled to put the
Tribunal to the trouble and expense (of the public)
of protractedly or even economically withholding
information or only admitting the inevitable when
candour could have avoided such trouble and expense.
The approach of a person before a Tribunal cannot be
- even if there is an accusor - "catch me if you
can." The Tribunal was to serve a particular
purpose, not to provide an arena such as a court for
a lis inter partes. The Tribunal did not or purport
to determine legal liability - but if in the course
of its inquiries it was hindered or delayed or put to
unnecessary or additional or unreasonable expense or
trouble, it was entitled to so report; whether that
took the serious form of failure to cooperate or the
more serious form of non-cooperation or 'obstructing
and hindering'. Unlike a lis inter partes where each
party presents their case to the independent judge
(who is, subject to appeal) the judge is the final
arbiter - a tribunal has no case to put, it informs
those coming before it of the issues to be
investigated and invites the participant to tender
such information as they have on the topic, if such
is inconsistent with previously gathered information,
oral evidence tested by cross-examination may become
necessary and a decision as to whom is the more
credible and cooperative or non-cooperative witness
will almost inevitably be made, as indeed the
character of assistance or non-assistance of the
witness. I am satisfied that Mr. Murphy knew the
Terms of Reference - that the Tribunal was to act and
be completed in "as economical a manner as possible"
and that there were costs implications for "the
failure of individuals to cooperate fully and
expeditiously with the Inquiry." To cooperate is to
work together or to act in conjunction with another
person to an end. It is the opposite to hindrance
which means to put at a disadvantage or to obstruct.
The ordinary dictionary meaning of obstruction is "to
block with obstacles or impediments or to render
difficult the progress", in this instance of the
Tribunal. In my judgement, if the Tribunal was of
the opinion on the facts before it that its work and
inquiries were impeded by want of co-operation and
the blocking of its progress in its inquiries, it was
entitled to so find such as a fact. It would be
invidious to fail to record same in its report and
then at a later stage when an application for costs
came to be made that such a finding was made for the
first time. An applicant for costs in such
circumstances could very properly object to any
suggestion or ruling of an adverse nature which had
not been found as a fact on the substantive hearing
and reports of the Tribunal.

Section 6 of the Tribunals of Inquiry (Evidence)
(Amendment) Act, 1979 was amended by substitution in
Section 3 of the Tribunals of Inquiry (Evidence)
(Amendment) Act, 1997 [No. 42 of 1997] provides
that:-

"(1) Where a Tribunal or, if the
Tribunal consists of more than one
member, the Chairperson of the
Tribunal, is of opinion that, having
regard to the findings of the Tribunal
and all other relevant matters
(including the terms of the resolution
passed by each House of the Oireachtas
relating to the establishment of the
Tribunal or failing to cooperate with
or provide assistance to, or knowingly
giving false or misleading information
to the Tribunal), there are sufficient
reasons rendering it equitable to do
so, the Tribunal or the Chairperson, as
the case may be"

may deal with costs applications in particular ways.
In my opinion, it is both right and proper as the
case arises for each Tribunal to indicate clearly in
its report by a finding of fact whether there has
been a failure to cooperate and if degrees of
non-cooperation are discernable that this be made
clear. This should be done to properly carry into
effect the purposes of the Statute and can be
regarded as necessarily incidental or consequential
upon those powers. In my judgement, there was an
obligation on the Tribunal to explain to the
Oireachtas and set out in its report why, having been
established by Ministerial Order on 4th November
1997, it was only making its reports (2nd and 3rd
Interim) years later and how such could or could not
be reconciled with acting and completing its task in
as economical a manner as possible.

In the course of the submission of the Applicants,
they referred to instances of alleged disadvantage to
them at page 25, paragraph 53 and following in their
written submissions, to which the Tribunal's response
was set out in their submissions at page 54,
paragraph 703 and following to 7.29. In the
circumstances, what was referred to as the primary
findings of the 2nd and 3rd Reports are unchallenged
by the Applicants, such must be accepted as based on
evidence of probative value. What, in effect, the
Applicants have sought to do in these proceedings is
to draw different conclusions from those drawn by the
Tribunal which had seen, heard and experienced the
evidence and the matter as well as the manner of it.
The Court is not a forum of appeal. In this regard
the Court must be particularly astute in considering
an application when documents permitted to be
introduced for illustrative purposes, proven to exist
were not in fact opened in public hearings to the
Tribunal. To admit such indulgence cannot avoid the
rigours of a plenary hearing or the restraints of
Judicial Review.

The concern of the Applicants is clearly in relation
to the consequences flowing from the finding of
obstruction and hindrance, rather than any of the
Tribunal's primary findings. It is evident that the
Tribunal's findings that the Applicants were guilty
of a corrupt payment seems of less concern to them.
Against the undisputed fact that a payment to
Mr. Burke was not for a legitimate purpose and that
payment to Mr. Redmond was corrupt, I fail to see any
validity or reality in the argument that respect for
constitutional right to a good name requires as a
matter of construction that the Court find that there
is no power to make a finding of obstruction and/or
hindrance, which in my judgement is of far less
serious significance than making illegitimate or
corrupt payments.

The claim made under the Convention of Human Rights
Act 2003, which did not come into operation until
31st March 2003, and which has not retrospective
effect, (see Fennell -v- Dublin City Council [2005]
2 ILRM 288) was towards the end of the hearing
abandoned, and no issue on this requires
adjudication.

In matter of costs, the Applicants challenged the
ruling on the following grounds:-

1. That the Chairman[Tribunal] had regard to the
findings of corruption when exercising its
discretion.
2. That the Chairman[Tribunal] had regard to
findings of obstruction and hindrance when exercising
the discretion in relation to costs.
3. Whether the making of costs orders based on
findings of obstruction and hindrance and/or
corruption constitutes the administration of justice.
4. Whether costs were refused on the basis of
findings which were never made by the Tribunal.

As earlier noted, when the Tribunal was established
and the public hearing commenced, Section 6 of the
Act of 1979 had been amended by Section 3 of the Act
of 1997. The amended provision provides that a
Tribunal in forming its opinion on a matter of costs
may have regard to:-
1) The findings of the Tribunal.
2) All other relevant matters including [an
expression conceded as not being exhaustive. (T.7,
p.59, l.28-29)].
(a) The terms of the Resolution passed by the Houses
of the Oireachtas. [This was not permissible under
the terms of Section 6 of the Act of 1979].
(b) Whether the person applying for costs had failed
to cooperate with or give assistance to the Tribunal.
[This was not permissible under the terms of the Act
of 1979].
(c) Whether the person applying for costs had
obstructed or hindered the Tribunal. [This was not
something that fell for consideration under the Terms
of the Act 1979 but in the Act of 1997 it reflects
the upper range of failure to cooperate and/or
failure to assist].
(d) Whether the person applying for costs had
knowingly given misleading or false information to
the Tribunal. [This was not something that fell for
consideration under the terms of the Act of 1979].
(e) Other relevant circumstances going to the equity
of the costs orders that might be made. [This was
not something that fell for consideration under the
terms of the Act of 1979].

In my judgement, the non-exhaustive listing of the
matters that were embraced in the expression
"including" permit the Tribunal to consider 'all
other relevant matters if... there are sufficient
reasons rendering it equitable to do so' in its
opinion and these are to be taken into account in the
making of a costs order. In my judgement, it is not
permissible under Judicial Review on the material
placed before the court nor is there any warrant on
the basis of the evidence tendered at the hearing in
court to displace the opinion of the Tribunal for
that of the Court. There is no evidence of failure
to exercise discretion within the terms of the Acts
or either Terms of Reference.

The Applicants in their submission rely heavily on
the section in its unamended form and the
interpretation of it in that form by the Supreme
Court in Goodman International -v- The Honourable
Mr. Justice Hamilton & Others [1992] 2 IR 542.
Section 6(1) in its amended form permitted the
Tribunal to have regard to a far greater variety of
factors in making a costs order than was permissible
under the section, in its unamended form, as
interpreted in the Goodman case.

In my Judgement, the Tribunal correctly applied
Section 6 of the Act of 1979 as amended by Section 3
of the Act of 1997 - for, in my opinion, the
amendment of the Act of 1997 was far more thorough
than that contended for by the Applicants. In my
judgement, the amendment affected by the Act of 1997
was directed towards the difficulties imposed by
perhaps a perceived narrow interpretation of the Act
of 1979 in the Goodman decision.

Notwithstanding the careful qualification in his
judgement in Haughey -v- Moriarty [1999] 3 IR 1 at
page 14, Geoghegan J. stated:
"In my opinion, power to award costs
under the Act of 1997 is confined to
instances of non-cooperation with or
obstruction of the Tribunal but that,
of course, would include the adducing
of deliberately false evidence and that
is why the statutory provisions
specifically requires regard to be had
to the findings of the Tribunal as well
as all other relevant matters.
However, I merely express that view by
way of obiter dicta because, in my
opinion, the issue of costs can only
properly come before a High Court by
way of some kind of Judicial Review for
injunctive proceedings after costs have
been awarded."

I am satisfied in this case, both as a matter of fact
and as a matter of law, that having regard to the
undisputed primary findings and the findings of
non-cooperation, obstruction and hindrance, that
having regard to such and all relevant matters
permitted under the amended Section 6 of the Act of
1979 by Section 3 of the Act of 1997 were considered
by the Tribunal. The Court ought not to supplant
same because the Court might have come to a different
opinion.

The judgement of McCarthy J. in Goodman's case,
[1992] 2 ILRM 542 at p.605, in dealing with Section 6
of the Act of 1979 states:

"Section 6: The liability to pay costs
cannot depend upon the findings of the
Tribunal as to the subject matter of
the inquiry. When the inquiry is in
respect of a single disaster, then,
ordinarily, any party permitted to be
represented at the inquiry should have
their costs paid out of public funds.
The whole or part of those costs may be
disallowed by the Tribunal because of
the conduct of or on behalf of that
party at, during or in connection with
the inquiry. The expression "the
findings of the Tribunal" should be
read as the findings as to the conduct
of the parties at the Tribunal. In all
other cases, the allowance of costs at
public expense lies within the
discretion of the Tribunal or, where
appropriate, its Chairman."

Without seeking to provide a glossary or presumptive
commentary on the foregoing, I am mindful of the
intendment of the Oireachtas to amend Section 6 of
the Act of 1979, I see no difficulty in accepting
that even under Section 3 of the Act of 1979, the
liability to pay costs cannot exclusively depend on
the findings of the Tribunal. Further, the eminence
of the Judge whose judgement, to which I have
referred, can bear the observation that the second
sentence of the extract is a matter of opinion - which given the reference to "a single disaster",
(e.g. the Whiddy Island Inquiry, the Stardust
Tribunal) is readily understandable. The two
sentences that follow referable to "those costs" are
in my view referable to the single disaster inquiry,
whereas the final sentence referable to "all other
cases", i.e. other than single issue/disaster cases,
the awarding of costs lies within the discretion of
the Tribunal.

In the instance case, to revert to the ruling of the
9th November 2004

"In spite of the serious findings of
corruption on the part of some of the
Applicants, I would have considered
awarding a portion of their costs had
they chosen to fully and honestly
cooperate with the Tribunal".
The instant case was not a single issue disaster.
There was no limitation on the expression "findings
of the Tribunal" in the amending legislation and the
text makes clear that despite or notwithstanding the
primary findings, there was a disposition to award
the portion of the costs sought and the reason such
award was not made was because of the Applicants'
non-cooperation, (a benign approach to the finding of
obstruction and hindrance) i.e. because of the
conduct by or on behalf of that party at, during or
in connection with the inquiry. In my judgement, the
ruling as to costs falls within the terms of
Section 6 of the Act of 1979 (as amended by Section 3
of the Act of 1997) and to the extent relevant,
within the terms of the judgement of McCarthy J.

In my judgement, the determination by the Tribunal of
the application for costs, in the context in which it
did, did not constitute the administration of
justice. "Any monetary loss incurred by the
engagement of these Applicants with the Tribunal is
for them an unfortunate consequence of the legitimate
right to hold such an inquiry." (per Geoghegan J. in
Haughey -v- Moriarty). Furthermore, no evidence has
been adduced before me to warrant a judgement that
the determination of findings which were never made
by the Tribunal, if this was intended to refer to the
benign view of obstruction and hindrance of the
ruling on costs, I consider to be spurious science.
(The instant case is wholly distinguishable from
The State (Irish Pharmaceutical Union) -v- Employment
Appeals Tribunal [1987] ILRM 36). If it was intended
to mean as set forth in the submissions that the
identity of the Sole Member was the issue, the matter
is dealt with in the legislation, which makes it clear, in addition to giving the Chairman of the
Tribunal power to have regard to the Second and Third
Reports, the Chairman was expressly not limited to
considering them in their findings and was permitted
to have regard to all other matters referred to in
Section 6 of the Act of 1979 as amended. In the 2nd
Report, paragraph 11.23, 17.15, 17.16 and 17.18 are
illustrative of the material properly available to be
taken into account. The case against the Tribunal in
my judgement fails.

Constitutionality:
It is settled law that a court should not pronounce
upon the constitutional validity of an Act unless it
is necessary to do so. Furthermore, in the instant
case, two further matters are to be noted before the
invitation or application to embark on this question
of constitutionality should be undertaken.

1. The Applicants challenge to the constitutionality
of Section 6(1) of the Act of 1979 (as amended) is
advanced on the possibility that an order for costs
may be made by the Tribunal against them. That
challenge is clearly premature and hypothetical as
pleaded in respect of the defences of the Tribunal
and the submissions of the State Respondents. That
defence is in response to the re-amended Statement of
Claim. The Tribunal has not considered, much less
ruled on the issue: The Tribunal has clearly
indicated that it will not make any decision on the
issue as to whether costs should be awarded against
the Applicants without affording the Applicants a
proper opportunity to make submissions on the issue.
The Court is not in a position to anticipate how the
Tribunal will deal with any such application, either
in principle or specifically in reference to the
Applicants. The Court must presume that the Tribunal
will act within the terms of the legislation and in
accordance with constitutional justice.

It is in these circumstances that the State
Defendants contend, in my judgement correctly, that
the Applicants lack locus standi to challenge the
constitutionality of Section 6(1) of the Act of 1979.

2. The fact that the Applicants were refused their
costs by the ruling of 9th November 2004, it does not
follow, by reason of that fact, that they have locus
standi to challenge the constitutionality of
Section 6(1) of the Act of 1979 as amended. The
striking down of Section 6 would be of no benefit to
the Applicants. Section 6 is the exclusive source of
the Tribunal's power to award costs, (Goodman -v- The
Minister for Finance [1999] 3 IR 356). Therefore, if
Section 6(1) is struck down as being invalid having
regard to the provisions of the constitution, there
remains no statutory or other basis on which the
Applicants could recover their costs.

It is in these circumstances that the State
Defendants, correctly in my judgement, rely on the
well established principles (Todd -v- Murphy [1999] 2
IR) that the Applicants lack standing to impugn
Section 6.

Notwithstanding the very careful and learned
submissions of Counsel, written and oral, on the
constitutional issue for which I am genuinely
appreciative, nonetheless in my judgment I ought not
to entertain the question of constitutionality as it
is not necessary for the determination of the case
before the court.

END OF JUDGMENT

Approved
TC Smyth J.


MR. JUSTICE SMYTH: That concludes my judgement
which I will hope to have
available to the parties in written form before the
end of the week and I will put the matter in this day
fortnight for mention with a view to any submissions
that the parties may wish to make on it. I regret it
has taken me some while to get around to dealing with
this matter but the exigencies of continued sittings
of the Court are not affording the opportunity of a
more expeditious response when a case is concluded.
Again, I do not wish the opportunity to pass without
mentioning not just simply at the judgement but to
those present and to those who contributed my serious
appreciation of what they did. This was a case of
enormous input from the Counsel and their industry
and their erudition was of great assistance to me.
Thank you very much.
END OF JUDGMENT