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Cite as: [2000] IESC 45

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Murphy v. Flood [2000] IESC 45 (26th January, 2000)

THE SUPREME COURT

JUDICIAL REVIEW

Hamilton C.J.

Denham J.

Barrington J.

Keane J.

Barron J.

103/99

BETWEEN:

JOSEPH MURPHY SENIOR

Applicant

and

THE HONORABLE MR. JUSTICE FEARGUS FLOOD SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Respondent

and

JAMES GOGARTY

Notice Party

Judgment of the Court delivered on the 26th day of January 2000 by Hamilton C.J.

1. The Respondent named in the above entitled proceedings is the Honourable Mr. Justice Feargus Flood who is and was at all relevant times the

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sole member of the Tribunal of Inquiry into certain planning matters and payments having been appointed thereto by instrument of the Minister for the Environment and Local Government dated the 4th day of November 1997 as amended by further Instrument dated 15th day of July 1998 and who will hereafter be referred to as the Sole Member.

2. These instruments were made in pursuance of resolutions passed by Dáil Éireann on the 7th day of October, 1997 and by Seanad Éireann, on the 8th day of October, 1997 and by further resolutions passed in Dáil Éireann on the 1st day of July, 1998 and by Seanad Éireann on the 2nd day of July, 1998, extending the terms of reference of the Tribunal.

3. In the course of his conduct of the said inquiry, the Respondent herein did rule that an affidavit of Liam Conroy, deceased sworn on the 20th day of March, 1989 be admitted into evidence before the said Sole Member.

4. Subsequent to the said ruling, Counsel on behalf of the Applicant herein sought an order pursuant to Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1991 to the effect that the Tribunal ought not allow the public to be present when any witness to the Tribunal gives evidence in relation to the contents of

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the said affidavit of Liam Conroy sworn on the 20th day of March 1989, in certain proceedings in the Isle of Man and filed in those proceedings. In his said ruling, the Sole Member stated that:-

“This affidavit has been ruled by the Tribunal to be relevant and admissible in evidence in relation to certain matters under inquiry before the Tribunal.”

5. On the 28th day of April 1999, Counsel for the Applicant, one Joseph Murphy, Senior, of Courtil Rozel, Mount Durand, St. Peter Port, Guernsey (hereinafter referred to as the Applicant) applied ex-parte before the High Court, (Geoghegan J.) for leave to apply by way of application for judicial review for the following reliefs:-

(a) An order of certiorari quashing the decision of the Respondent of the 19th day of March, 1999 to admit into evidence before the proceedings of the Tribunal of Inquiry into certain planning matters an affidavit of Liam Conroy, deceased, sworn on the 20th day of March, 1989;

(b) A declaration that the admission of evidence of the contents of the aforesaid affidavit into the said proceedings was in breach of the rights of the Applicant herein to fair proceedings and constitutional justice;

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(c) A declaration that in admitting the aforesaid affidavit into evidence in the said proceedings the Respondent erred in law and in fact and thereby exceeded his jurisdiction;

(d) Further or in the alternative an order of certiorari quashing the decision of the Respondent of the 27th day of March, 1999 not refusing to allow the public to be present when any witness of the Tribunal gives evidence in relation to the aforesaid affidavit of Liam Conroy, deceased, sworn on the 20th day of March, 1989;

(e) A declaration that in determining not to exercise the power conferred by Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921 to exclude the public when any witness to the Tribunal gives evidence in relation to the contents of the aforesaid affidavit of Liam Conroy, deceased, sworn on the 20th day of March, 1989, the Respondent erred in law and in fact, exceeded his jurisdiction and acted in breach of the rights of the Applicant to fair procedures and constitutional justice; on the grounds set out at paragraph (E) in the statement dated the 28th day of April, 1999 signed by the solicitors for the Applicant.

6. By his judgment delivered on the 30th day of April, 1999, the learned trial judge refused to grant to the Applicant leave to apply by way of application for judicial review for the aforesaid reliefs.

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7. On the 4th day of June, 1999 this Court dismissed the Applicant’s appeal against the said order of the 30th day of April, 1999 and stated that it would give its reasons at a later date.

8. The application made to the High Court related to two issues, firstly the issue as to the decision of the Sole Member to admit into evidence the aforesaid affidavit of Liam Conroy, deceased, and secondly, the decision of the Sole Member not to hear evidence in regard thereto in private.

9. The learned trial judge dealt with these issues as follows:

“It is perfectly clear from the Grounding Affidavit of Mr. Michael Fitzsimons, Solicitor, and the relevant portions of transcript before me that the primary if not the sole purpose for which Counsel for the proposed Notice Party, James Gogarty, applied to the Tribunal to have the affidavit admitted was because the said James Gogarty in his evidence alleged that after the Applicant had paid over money to a member of the Dáil and of the relevant planning authority with a view to obtaining a developer’s planning permission, the Applicant subsequently sold the relevant land on an agricultural value basis. According to the said James Gogarty in his evidence this apparent inconsistent conduct on the

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part of the Applicant was caused by panic arising out of his sight of the controversial affidavit of Liam Conroy, now deceased All of this is in dispute. But Counsel for the Applicant has consistently argued both before the Tribunal and before this Court that there is no need for the contents of the affidavit to be disclosed to the Tribunal since the matters in the affidavit do not directly relate to the terms of reference but that it would be sufficient for Mr. Gogarty’s purposes f the existence and date of the Affidavit was disclosed and if it was conceded that it contained serious allegations against the Applicant. The Respondent has taken the view that the contents of the affidavit must be disclosed to enable the Tribunal to make a proper determination of the issues in dispute. It may well be that provided no reasonable argument could be made to the effect that such a ruling was wholly unreasonable, this Court should not grant leave for judicial review. But I do not have to decide that point because I am in entire agreement with the Sole Member of the Tribunal that once it was established that this affidavit might have been a catalyst in the events that transpired, it would not be sufficient for the Tribunal merely to be informed as to the existence and date of the Affidavit and that serious allegations are made in it. It is my view that

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beyond argument the Tribunal would have to see the affidavit. On that basis there is, in my opinion, no arguable case for an Order of Certiorari quashing the decision to admit the affidavit and I must refuse leave for Judicial Review proceedings seeking this remedy and the ancillary declaratory remedies.

I want to make it clear that in making this decision I am expressing no views as to whether the contents of the affidavit of Liam Conroy, deceased, can form part of the evidence at the Tribunal, having regard to the fact that Liam Conroy cannot now be cross-examined. It is not clear to me, indeed, from the evidence before me that any submission has been made by Mr. Callanan, Counsel for Mr. Gogarty, to the effect that the contents of the affidavit of Mr. Conroy should form part of the evidence before the Tribunal. As I understand it, the reason that he wanted the Affidavit put in evidence including its contents was to prove not the facts in the affidavit but rather the context in which Mr. Murphy, the Applicant, changed direction under panic. I accept that the two Rulings of the Respondent and particularly the Ruling relating to the application to have the evidence heard in private might seem to suggest that the affidavit could be used as evidence at the Tribunal as distinct from being used for the purposes of

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context and credibility but I think that for the purposes of this application I should merely consider whether there is an arguable case that the contents of the affidavit ought not as a matter of law be disclosed at the Tribunal for any purposes and I have already indicated that I cannot accept such a proposition. The question of the use to which the contents of the Affidavit can be put for the purposes of the ultimate findings of the Tribunal can be argued out in due course before the Sole Member. I am not concerned with that at this stage.

With regard to the second or alternative judicial review sought, I am satisfied that leave should be refused in this instance also. Before Mr. Justice Flood ruled that he would not refuse to allow the public to be present when any witnesses of the Tribunal gave evidence in relation to the affidavit of Liam Conroy, deceased, the relevant paragraphs in the affidavit which are causing concern to the Applicant had been opened to him at a private hearing. He is therefore fully aware of the nature of the allegations contained in the affidavit and nevertheless he has decided that the hearing should be in public. I think that that is entirely a matter of discretion for the Sole Member and that this Court would not be entitled to interfere with it. It would have been

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a different matter if those relevant paragraphs had not been disclosed to the Sole Member before he made his Ruling. If that had been the case, I would have had some doubts and indeed, on balance, I would have probably granted leave for judicial review of the ruling that the evidence concerning the affidavit should be heard in public but given that Mr. Justice Flood made his Ruling knowing the contents of those paragraphs and accepting as I do that it was a matter of discretion for him and that nobody, in my view, could say that the Ruling was wholly unreasonable, it would not be appropriate to give leave to bring Judicial Review proceedings in respect of that Ruling.

I therefore refuse all the reliefs sought.”

10. From this judgment and the Order made in pursuance thereof the Applicant has appealed to this Court.

11. The two decisions or rulings, sought to be impugned herein, were made by the Sole Member in the course of his Inquiry into Certain Planning Matters and Payments, established by the Minister for the Environment and Local government pursuant to resolutions passed by Dáil Éireann and by Seanad Éireann.

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12. These rulings related to the admissibility in evidence of the affidavit sworn by Liam Conroy, deceased, and the decision of the Sole Member that evidence in regard thereto would be given in public.

13. The decisions or rulings so made can only be interfered with by the Court if they were

(a) made in breach of the Applicant’s constitutional rights, and/or

(b) either unreasonable or irrational or flew in the face of fundamental reason and common-sense.

14. Dealing with the aforesaid affidavit, Mr. Michael Fitzsimons, solicitor for the Applicant averred in his affidavit sworn on the 28th day of April, 1999 at paragraph 5 thereof:-

“Mr. Liam Conroy who is the deponent of the affidavit the subject matter of these proceedings became a non-executive director of Joseph Murphy Structural Engineers Limited in 1982. In 1983 he became Chief Executive of all the Murphy Companies in both Ireland and the United Kingdom. The bulk of the commercial activity undertaken by the Murphy Group was conducted in the United Kingdom. Mr. Conroy’s position therefore was

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significantly more important one than that of Mr. Gogarty whose activities and responsibilities were confined to Ireland. In 1987 the relationship between the Applicant herein and Mr. Conroy deteriorated significantly and by 1988 the Applicant had lost any vestige of trust in Mr. Conroy. In June 1988 Mr. Conroy was removed from his various positions within the Murphy Group of companies both in the United Kingdom and in Ireland and just as in the case of Mr. Gogarty this prompted considerable litigation between the parties. One such set of proceedings involved an application by Mr. Murphy in the Isle of Man seeking certain declarations in relation to a trust of which Mr. Conroy and members of his family were beneficiaries. Certain Murphy settlements had been created in the Isle of Man. The trustees were two companies known as Armoy and Ashdale Limited both of which were Manx companies. Proceedings were commenced in the Isle of Man for recovery of assets and for declarations that a sub-trust known as the Lithe Trust created by Mr. Conroy was invalid. Initially the basis of the claim was that the sub-trust had been created by the trustees without any authority, without any reference to the discretionary beneficiaries of the original trusts and in collusion with Mr. Conroy as a fraud (in the legal sense) on

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each of the said trusts. The affidavit which is the subject matter of these proceedings was sworn by Mr. Conroy in these proceedings in the Isle of Man. Mr. Conroy is now deceased having died in or around the month of July 1998.”

15. In the course of his ruling on the 27th day of April, 1999, the Sole Member stated, in relation to the allegations against the Applicant contained in the affidavit, that:-

“It is undoubtedly true that they are not directly referable to the terms of reference but there may be circumstances where they could be of probative value and corroborative of other evidence tendered to the Tribunal by Mr. Gogarty.”

16. It is submitted on behalf of the Applicant that the said affidavit, containing as it does serious and damaging allegations against the Applicant herein are not relevant to the terms of reference of the inquiry and should not have been admitted in evidence by the Sole Member.

17. It is further submitted that the contents of the affidavit are hearsay and that the Applicant has been deprived of his right to cross-examine the deponent of the said affidavit in respect of the allegations contained therein.

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18. In the course of his ruling made on the 27th day of April 1999, the Sole Member stated:-

“Undoubtedly, the statements made in the affidavit by Mr. Conroy cannot be the subject matter of a personal cross-examination of the deponent. Mr. Murphy, however, will have full access to the Tribunal to give his version on oath in relation to the said allegations. It is the duty of the Tribunal to fairly assess (sic.) Mr. Murphy Senior’s evidence and to apportion to it the probative value to which he, as a witness, is fairly and properly entitled.”

19. It is not clear what probative value, if any, will be attached by the Tribunal to the contents of the said affidavit.

20. The Sole Member in the course of his ruling envisaged circumstances where the contents of the said affidavit could be of probative value and corroborative of other evidence tendered to the Tribunal by Mr. Gogarty.

21. The admissibility of evidence is purely a matter for the Sole Member and his decision to admit the said evidence cannot be said to have been made by him in breach of the Applicant’s constitutional rights or to be so unreasonable or irrational as to justify this Court in interfering therewith.

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22. With regard to the second issue namely the decision of the Sole Member not to conduct a hearing in private with regard to the evidence in relation to the said affidavit, Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921 provides that:-

“A tribunal to which this Act is so applied as aforesaid -

(a) shall not refuse to allow the public or any portion of the public to be present at any proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given.

As the Sole Member correctly pointed out in the course of his ruling on this issue, it is to be noted that sub-section (a) of the said Section is couched in the negative and that a private session is an exception to the general mode of procedure contemplated for hearings before the Tribunal.

The Tribunal must be conducted in public and it may not refuse to allow the public to be present

“unless in the opinion of the Tribunal it is in the public

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interest expedient so to do”.

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

24. It is purely a matter for the Tribunal to decide whether it be in the public interest expedient to refuse to allow the public or any portion of the public to be present at any of the proceedings of the Tribunal.

25. As there is no evidence that the decision of the Sole Member not to exclude the public from the hearing of evidence with regard to the contents of the aforesaid affidavit was in any way unreasonable or irrational, the Court is not entitled to interfere with the ruling made by the Sole Member thereof as there was no breach of the Applicant’s constitutional rights in regard thereto.

26. For these reasons the Court dismissed the Applicant’s appeal against the order of the High Court.