Supreme Court of Ireland Decisions

1. The plaintiff in these proceedings is the sole member of a tribunal of inquiry established by a resolution of both houses of the Oireachtas to inquire into certain planning matters and payments. The defendant/appellant has represented the constituency of West Dublin, the location of a number of matters into which the plaintiff is inquiring pursuant to the resolution, both in the Dáil and the relevant local authority for significant periods of time covered by the plaintiff’s terms of reference.

2. On the 8th June 2000, the plaintiff made an order that the defendant make discovery on oath of and produce to him

3. Following the making of that order by the plaintiff, he applied to the High Court for an order compelling the defendant to comply with the order and an order compelling him to attend before the plaintiff to give evidence in relation to the documents in question. That order was granted by the High Court (Smyth J.) on the 24th October 2000. So much of the order as required the defendant to give evidence was the subject of an appeal to this court which was determined by this court in favour of the plaintiff on the 24th November 2000.

4. It is not in dispute that thereafter the defendant failed to comply, to a significant extent, with the order as to the discovery of documents and also refused to answer relevant questions addressed to him at the public hearings of the tribunal being conducted by the plaintiff. Proceedings were accordingly brought by the plaintiff against the defendant for attachment and/or committal for contempt.

5. In his reserved judgment, delivered on the 15th January of this year, Smyth J., having reviewed the facts and the law in detail, expressed his conclusions as follows:

6. Thereafter, the defendant made discovery in respect of a considerable volume of documentation. However, the plaintiff was not satisfied that there had been as yet compliance within the specified time limits (which were extended on occasions by order) and the matter was re-entered for hearing before Smyth J. In a reserved judgment delivered on the 31st July, he concluded that there had been non-compliance of what he described as a “serious character”. He accordingly ordered

7. The learned High Court judge refused an application for a stay on this order, but on the 3rd August 2001 this court ordered that the order should be stayed pending the determination of an appeal lodged by the defendant. This court has now heard the appeal from the order of the High Court.

8. At the outset, it should be pointed out that, if the defendant were to comply fully with the order of the High Court of 24th October 2000, it would necessarily involve the discovery by him of a very substantial quantity of documents. The order extended to documents and records relating to two periods, the first from 16th June 1977 to the date of the order and the second from the 16th June 1974 to the 17th June 1977. Moreover, the defendant during the periods in question appears to have operated no less than one hundred and ten bank accounts in various countries and was also engaged in a wide range of business activities both in this country and abroad. It also appears that the defendant wrote to two hundred and seventy two individuals, firms, companies and banks seeking documents relevant to the order of the 24th October 2000.

9. Following the making of the order of January 15th of this year, the defendant furnished the plaintiff with one hundred and fifty seven folders of documents. A number of separate affidavits were also filed by the defendant: it was, however, agreed between the parties that these were interim affidavits and that ultimately a final affidavit of discovery in accordance with the Rules of the Superior Courts would be filed. The date originally fixed for compliance with that requirement was the 30th March 2001: following the receipt of a letter from the defendant’s solicitors indicating that they were still awaiting replies to letters to certain persons from whom they were seeking relevant documents, the matter was adjourned in the High Court until the 15th May 2001, by which date the court required the discovery to be completed. Since the plaintiff at that stage indicated concern that there had not been a full compliance by the defendant with his discovery obligations, the court directed that the plaintiff should file an affidavit by the 10th July of this year and that any replying affidavit should be filed not later than the 17th July.

10. In the affidavits which were sworn and filed by the plaintiff and the defendant in July of this year, in accordance with that procedure, a contest emerged between the parties as to whether in respect of a number of individual matters the defendant had complied with his discovery obligations. The plaintiff was in effect contending that it was clear that documentation had been generated in respect of a number of matters which had not been discovered by the defendant: he had either failed to discover documents which the plaintiff believed to be in his possession or procurement or had failed to state what had become of documents which had previously been in his possession. The defendant again in response, in effect, said that in relation to all such matters he had complied with his discovery obligations to the fullest extent possible, that he was not withholding any documents covered by the discovery order from the plaintiff and that, so far as documents not in his possession were concerned, he had made every effort to obtain these from the relevant parties.

11. It is unnecessary, for the purposes of this judgment, to discuss in detail all the items which remained in controversy between the plaintiff and the defendant, because the learned High Court judge made express findings as to non-compliance in respect of three matters only. He indicated that he was not making any finding either in favour of or against the defendant in respect of the other matters of which the plaintiff made complaint and it is indeed one of the principal grounds of appeal advanced on his behalf that this was an unsatisfactory approach for the trial judge to have adopted: he should, as it was urged, have expressly adjudicated on any matter in respect of which he considered that there had been non-compliance and given his reasons for finding that there had been such non-compliance. I will consider that submission at a later stage in this judgment: at this point, however, it is appropriate to set out the three matters in respect of which the learned High Court judge made express findings of non-compliance.

12. In the course of her affidavit of the 10th July, Marie Anne Howard, a solicitor acting on behalf of the tribunal, at paragraphs 100 - 102, made certain averments under the heading “Navona Limited”. She said that, on days 223 and 224 of the public hearings of the tribunal, the defendant gave evidence as to a sum in excess of £203,000 which had been debited to the account of a company under his control, Advanced Proteins Limited, in November 1987. She said that the defendant’s evidence was that this was a repayment of a loan advanced to him by the Goodman Group for the purpose of developing research into animal proteins, that the project had not proceeded and that this debit represented a cheque payment by him for the repayment of the loan. When it was pointed out to him by the plaintiff that the recipient of the cheque was a firm of solicitors, Binchys, the defendant stated that Binchys were acting for Mr. Goodman. There were no documents relating to this loan in the defendant’s discovery.

13. The affidavit continued as follows:

14. In his replying affidavit of the 17th July, the defendant commented as follows on those paragraphs of Ms. Howard’s affidavit:

15. In a further affidavit dated the 18th July, 2001, and sworn by Susan Gilvarry, another solicitor acting on behalf of the plaintiff, it was stated that, on the 7th March, 2001, the tribunal had sought from Mr. Goodman an authority directed to his solicitor, Mr. Noel Smyth, requiring him to provide to the tribunal all files, documents and records relating to a company called “Ellangrove Limited”. Following receipt of a letter from Messrs. Noel Smyth and Partners, the solicitors for the tribunal interviewed Mr. Ronan Hannigan, a member of the firm of Noel Smyth and Partners, and were informed by him that he had furnished the defendant, at his request, with all the files in their office which he believed to be those of the defendant, the first relating to certain High Court litigation ( Murphy -v- Lawlor and Anor.) and the second in respect of Ellangrove Limited. Mr. Hannigan said that the defendant undertook, on collecting the file, to provide copies thereof to the solicitors and discharge their outstanding fees but that, although they had written on a number of occasions seeking fees in respect of the Ellangrove matter, they had never been given the copies of the files. Mr. Hannigan further informed the tribunal that, in the most recent correspondence from the solicitor now acting for the defendant, it was stated that the defendant’s instructions were that he had no involvement with Ellangrove Limited nor did he have any interests or dealings with it whatsoever. Mr. Hannigan produced to the tribunal copies of this correspondence, none of which had been discovered to the tribunal by Mr. Lawlor to date.

16. At the interview of July 17th, Mr. Noel Smyth said that he had been engaged by Mr. Laurence Goodman to act on his behalf in seeking to recover expenditure of approximately £157,000 which had been incurred by him or his company in respect of interest payments and expenses accruing on foot of a loan made by the Bank of Nova Scotia to Southfield Property Company Limited in respect of 55 acres at Coolamber, Lucan, Co. Dublin acquired by Navona Limited in December 1987. The affidavit continued

17. In a further affidavit sworn on the 18th July 2001 by Ms. Howard, more details were given of the transaction relating to the Coolamber lands. Ms. Howard, having stated that the averment by the defendant that he had no knowledge of Navona Limited or any dealings with such a company was untrue, referred to copies of hand-written memorandums furnished by Mr. Goodman to the tribunal which were stated to record a proposal put to him by the defendant in 1987 relating to the purchase of the lands. Having quoted the memorandum, she went on

18. The affidavit went on to refer to two further memoranda by Mr. Brian Britton, then an employee of Mr. Goodman concerning the project for the acquisition of these lands. These included telephone numbers appearing at the foot of the memorandum which, Ms. Howard deposed, were those of the defendant’s secretary, his direct telephone line, his mobile telephone line and his telephone contact numbers at Dáil Éireann.

19. These documents indicated that the company called “Navona Limited” was being formed in the Isle of Man as the company in whose name the property was to be purchased. In turn, Navona Limited was to hold those lands in trust for an Irish company, Southfield Property Company Limited, to whom the Bank of Nova Scotia issued a loan facility letter on 23rd December, 1987 offering to advance the sum of £350,000. That letter made it clear that the facility was being provided on condition that a letter of comfort in a format acceptable to the bank from Mr. Goodman was provided, which would include a provision that Mr. Goodman would not relinquish 100% beneficial ownership of Southfield Property Company Limited so long as any amounts remained outstanding under the facility.

20. The tribunal was further informed by Mr. Goodman that he was never provided with any shareholding in Southfield Property Company Limited, and that it subsequently sold its interest in the lands to another Isle of Man registered company, Vino Property Limited, without reference to him, without discharging the interest payments which he had made in respect of the loan and without accounting to him for any share in the profit realised upon the sale, in breach, as Mr. Goodman alleged, of the defendant’s agreement with him. He further informed the tribunal that, between 1993 and 1995, he was seeking to recover from the defendant the monies which he had expended in the payment of interest on the property loan in respect of these lands. He said that in the course of these dealings he was provided by the defendant with a memorandum prepared by him and faxed on the 12th December 1994.

21. Mr. Goodman told the tribunal that he did not agree that the facts recited in the memoranda were correct and in particular denied that he had any knowledge of any parties other than the defendant in the transaction to acquire these lands. The relevant contents of the memorandum (exhibit “MAH52”) are summarised as follows by Ms. Howard at paragraph 13 of her affidavit:

22. In an affidavit sworn by him in response on the 20th July, the defendant agreed that he has collected a file relating to the action involving Mr. Murphy from Noel Smyth and Partners. He says, however, that he was never asked for nor was he given the Ellangrove file. He agreed that Noel Smyth and Partners had subsequently sought fees from him, representing 50% of the Ellangrove fees, but says that he had no idea why they sought to charge him with 50% of fees in respect of services rendered years earlier by their firm to Mr. Goodman’s company. He said that, accordingly, he subsequently simply ignored this correspondence and discarded their letters. He said that he had no recollection of having been written to by Noel Smyth and Partners “in relation to the Ellangrove matter or concerning recovery of monies expended by Mr. Goodman”. He said that this matter had been pursued by Mr. Smyth through meetings with him.

23. In paragraph 23 of the affidavit, the defendant stated that

24. The defendant went on to say that, while his averments at paragraphs 100 - 102 of his affidavit of July 17th were “relatively concise”, they should be seen in the context of a lengthy affidavit required to be prepared and delivered within a very short period under the stricture that “time was to be of the essence” and in the context of having to reply to an extremely detailed affidavit from Ms. Howard running to 63 pages and accompanied by several hundred pages of exhibits.

25. The defendant went on to say that, while he accepted that his understanding in December 2000 of his obligations as to discovery and giving evidence to the tribunal were incorrect, he was now endeavouring to comply fully with the orders of the court. He went on

26. That is the first matter in respect of which it is alleged on behalf of the plaintiff, and was so found by the High Court, that there has been significant failure by the defendant to comply with his discovery obligations.

27. The defendant has given evidence to the tribunal that he was engaged in some business ventures in the Czech Republic. One of the companies with which he was associated in the course of those projects was a Jersey company, Longwater Investments Limited (hereafter called “Longwater”). He also said that, when he had a lot of bank debts in the mid 1990’s, Longwater had advanced two loans to him of approximately £300,000 each, guaranteed against his assets in Ireland and in the Czech Republic, for the purpose of defraying debts then due by him to banks in this State.

28. It appears that the amount of the indebtedness of the defendant to banks in Ireland was in the sum of approximately £995,000, his main creditor being the ACC Bank which had a charge in respect of debts of approximately £640,000 on 23 acres of land adjacent to the 5 acres upon which the defendants home is built. Those 23 acres were sold at auction on 25th July 1995 for a sum of £410,000 which sum, exclusive of solicitors’ and auctioneers’ fees, was paid to the ACC Bank in full and final settlement of the debts owed to it by the defendant. It also appears that the other Irish banks who were creditors of the defendant agreed to accept £153,000 in full and final settlement of those debts. It would appear to follow that, of the sum of approximately £600,000 borrowed by the defendant from Longwater, £153,000, at most, was used in discharge of the indebtedness of the defendant to the Irish banks.

29. As to these Longwater loans, the defendant gave evidence that these were drawn down, as required, from a bank account in the above bank (hereafter “the Landesbank”). This, he said, had been opened by Longwater and payments were made out of it, at the direction of one David Morgan (now deceased) or his son, Nicholas Morgan, a lawyer in Jersey, when the defendant required to defray a bank debt in Ireland.

30. The only documentation in relation to such a payment was, however, a letter from the defendant to National Irish Bank, Naas, Co. Kildare dated 30th January 1997 in which it was stated:

31. It transpired that there were in fact eight, not one, accounts in the Landesbank. These are identified in the relevant affidavit of discovery by reference to the account number and type of account: the name of the holder of the account is not identified. At the date of the swearing of the affidavit of 10th July by Ms. Howard, the only contemporaneous documentation produced by the defendant in respect of the Landesbank were :

32. It also appears that, the opening balance on the first of these accounts was a sum of £351,064 on 14th September 1995, from which £160,000 appeared to have been transferred to the National Irish Bank, Naas in October 1995. It appears that a total of approximately £604,000 was transferred from the Landesbank accounts to Irish accounts of the defendant. The accounts continued to receive monies from an unidentified source up to their closure in 1999 and to be the source of funding of the defendant’s Irish bank accounts until that year. There were three lodgments to the accounts, of £351,251 on the 14th September, 1995, £333,325 on the 23rd October, 1998 and US$30,000 on the 9th April, 1998.

33. In his replying affidavit, the defendant said that he had gone to considerable lengths to obtain these statements from the Landesbank: these had been delivered by an entity called the “CI Law Trust Group” to him on 21st March 2001 and his solicitors then wrote to that body on the 26th March requesting confirmation that the accounts furnished were the entirety of the accounts held by that bank in relation to him. He also said that the statements furnished by the Landesbank would not recite the account holder’s name or address, but would simply refer to a code. He said that his solicitors had received no response to the request made on 26th March 2001.

34. The defendant also said that the arrangement for drawing down the funds from these accounts was for him to contact Longwater and the bank by telephone: he was then required to identify the account number, his passport number and the password for the account (“Lucan”).

35. The defendant also gave evidence in relation to these matters to the tribunal and said that the person he dealt with at the bank was a Dr. Kieber and that his instructions to that person were always by telephone. When he was referred to the letter to the manager of the National Irish Bank in Naas, he accepted that there had been written communications with the Landesbank and a letter was signed by him authorising the release to the tribunal of all documents relating to the accounts. The defendant was ordered not to communicate with Dr. Kieber until January 16th 2001. No response was received by that date and it is not in dispute that thereafter the defendant was free to get in touch with Dr. Kieber and endeavour to procure for the tribunal the documentation relating to the movements in the accounts. At the hearing in the High Court, a letter dated April 30th was produced from the defendant to Dr. Kieber requesting the documentation in question. This letter had been written after the time for making discovery as originally fixed had expired.

36. This court was informed during the course of the appeal that, subsequent to the decision of the High Court, a further affidavit of discovery had been filed by the defendant. In addition to more recent bank statements from the Landesbank, faxes in relation to the accounts were produced which had not been discovered at any earlier stage.

37. In the course of his judgment, the trial judge said that the defendant’s discovery was deficient inter alia

38. At a later point in his judgment he said

39. In his judgment, the learned High Court judge identified as a further illustration of the deficiency in the defendant’s discovery

40. The material parts of Form 10 (the form prescribed by Order 31 Rule 13 for an affidavit as to documents) is as follows:

41. In his affidavit of discovery sworn on the 11th May 2001, the defendant deposed as follows in paragraph 3:

42. The second schedule to the affidavit reads as follows:

43. At para. 138 of the affidavit sworn by her on the 10th July, Ms. Howard said

44. As already noted, this was one of the three matters in respect of which the learned High Court judge made a specific finding that there had been a non-compliance by the defendant with the order of the 15th January 2001.

45. In the course of his judgment, the trial judge said that, in dealing with the matter at earlier stages, the court had sought to balance fairly the urgency attaching to the tribunal’s investigations and the difficulties confronting the defendant in supplying information and documentation to the plaintiff. He said that regard had been had to the period of time and the volume of documentation involved and the fact that matters which might be of importance to the plaintiff might not have so registered with the defendant. However, while he accepted that some omissions in the documentation to date could be regarded as peripheral, he considered that

46. He then went on to refer to the three matters already discussed in detail in this judgment.

47. Towards the end of the judgment, the trial judge said

48. Having then discussed the legal principles applicable as to contempt of court and the arguments advanced on behalf of the plaintiff and the defendant, the trial judge said that there had been only partial compliance with the order of the 15th January and that he took a very serious view of that fact “against the background of this litigation”. He was also of the view that it would be unfair to impose as a term of imprisonment the whole of the balance of the sentence, because there was still a period during which it was possible that compliance might be complete and the defendant had already undertaken considerable work in an attempt at compliance.

49. The trial judge said that, given that the non-compliance had been of a serious character, several weeks imprisonment should be the result, but that he was mindful that what might be regarded as a draconian power ought not to be exercised “too prodigally” or in a manner which was inconsistent with the requirements of the Constitution. In those circumstances, as already noted, he decided that the defendant should serve a further week’s imprisonment and made the other orders to which I have referred.

50. On behalf of the defendant, Mr. John Trainor SC., submitted that, although the High Court judge had founded his judgment on the premise that there had been serious deficiencies in the discovery to date and that the documents placed before the court evidenced a “want of frankness and completeness”, he had expressly refrained from giving any particulars, save in the three instances already referred to in this judgment. He said that the trial judge by adopting what he described in the judgment as “a conspectus view of the evidence” had arrived at conclusions which were seriously flawed. Either he had arrived at conclusions adverse to the defendant in relation to matters other than the three specified matters or he had not. If he had arrived at such adverse conclusions, Mr. Trainor urged, then justice to the defendant required that he specify the reasons for those conclusions. That was of particular significance, given the detailed response by the defendant to all of the matters raised in Ms. Howard's affidavit of the 10th July. If he had not arrived at any finding adverse to the defendant in respect of all the remaining matters , then his judgment was also flawed in that he did not make an express finding to that effect and take it into account when considering what order should now be made and, in particular, whether the defendant should suffer the serious sanction of imprisonment.

51. As to the first matter in respect of which the trial judge had made an express finding, i.e., the Coolamber lands, Mr. Trainor submitted that the sworn evidence of the defendant to the effect that he neither sought nor received the missing Ellangrove file from Noel Smyth & Partners was not contested. Accordingly, the only deficiency identified in respect of the defendants discovery was the absence of a specific listing in the second schedule of the sales brochure which he had given to Mr. Goodman, the fax which he had sent to Mr. Goodman and the four letters from Noel Smyth and Partners concerning the Ellangrove file which he had discarded. It was arguable whether the proper completion of the second schedule required these documents to be specifically listed: if it did, it was the only failure to comply with the order of January 16th 2001 which had been established.

52. As to the Landesbank accounts, Mr. Trainor submitted that the trial judge appeared to have overlooked the fact that documentation concerning the Landesbank account had already been procured from the CI Law Group Limited and discovered prior to 30th March 2001. Moreover, the letter to Dr. Kieber was sent before the time for discovery had expired on May 15th.

53. As to the claim that the second schedule was not in accordance with Form 10 in Appendix C to the Rules, Mr. Trainor submitted that it was customary for affidavits to be sworn in the form adopted by the appellant in this case. It was accepted that, in accordance with the decision of this court in Bula Limited (In Receivership) -v- Crowley [1991] 1 IR 220, where a claim of privilege was being made in respect of documents, those documents had to be individually listed in the first schedule. That did not apply, however, where as here, a deponent was giving evidence as to documents no longer in his possession, power or procurement.

54. As to the sentence imposed by the High Court, Mr. Trainor submitted that if, contrary to his submissions, any form of contempt had taken place, it was civil contempt and that the object of this branch of the law was not punitive but coercive. It followed that the period of committal should be until such time as the order was complied with or until it was waived by the party for whose benefit it was made, citing the decision of this court in Keegan -v- de Burca [1973] IR 223 and of Finlay P as he then was, in The State (Commins) -v- McCrann [1977] IR 78 .

55. Mr. Trainor further submitted that the power to order committal for civil contempt was one to be exercised with very great care. The court would not order committal where its contempt was of a minor or technical nature , citing the English decisions in Marshall -v- Marshall [1966] 110 SOL JO 112, Smyth -v- Smyth [1988] 1 FLR 179 at 181. Where the order of committal was suspended and the contemnor was subsequently in breach of the terms of the suspension, the court had a discretion whether to order the imprisonment of the contemnor: citing Re: W (B) and infant [1969] 1 All ER 594. Mr. Trainor said that imprisonment should always be regarded as a sanction of last resort in cases of contempt, citing Arlidge, Eady and Smyth on Contempt (second edition) [1999] at para. 14.3. In cases such as the present, it should only be used where the person in default had clearly demonstrated that he had no intention of complying with the order. Moreover, where, as here, the party was unable to obtain access to the documents through no fault of his own, the penal power should not be exercised: see Wilson -v- Raffalovich [1881] 7 QBD 553.

56. Mr. Trainor further submitted that the course adopted by the learned High Court judge did not adequately distinguish between the default that had unarguably occurred prior to the order of January 15th and any default which might have occurred thereafter. It was unjust that the appellant should suffer precisely the same term of imprisonment in respect of what, in comparison with the admitted default prior to January 15th, was not a default of a major nature. That, of itself, rendered the sanction imposed excessive and disproportionate.

57. On behalf of the plaintiff, Mr. Frank Clarke SC., submitted that the order made by the plaintiff now being appealed from should be seen in the context of the earlier history of the matter : the original orders made by the tribunal in April 1999, the orders of the High Court of June 8th 2000 and 24th October 2000 requiring compliance by the defendant with the orders of the plaintiff, unsuccessfully appealed to this court, and the contempt committed by the appellant of those orders, described by the learned High Court judge as one committed “in a deliberate and most serious manner”. That finding by the High Court had not been the subject of any appeal to this court. Mr. Clarke said that, following the delivery and analysis of the final affidavit of discovery furnished by the defendant in purported compliance with the order of 15th January 2001, the plaintiff had come to the conclusion that, notwithstanding the production by the defendant of extensive documentation, he had failed to comply fully with the orders. It was in consequence of that conclusion having been communicated to the High Court that the affidavits on behalf of the plaintiff setting out the alleged deficiencies and affidavits in response were filed.

58. Mr. Clarke submitted, that while the submissions on behalf of the appellant laid stress on the fact that the trial judge had adopted what he described as “a conspectus view”, the fact remained that three specific examples of deficiencies in the discovery had been identified in the judgment. Of these, that relating to the lands at Coolamber was of considerable importance in the context of the inquiries undertaken by the plaintiff in compliance with the resolution of the Houses of the Oireachtas.

59. Mr. Clarke submitted that the account given by the appellant in his affidavit of 17th July 2001 of his involvement in the purchase and development of the Coolamber Lands was less that complete. Indeed, the appellant himself accepted that, in giving evidence to the tribunal in relation to this matter, he was not “fully forthcoming” with regard to these lands. In the context of the present appeal, the critical matter was that the appellant did have at one stage documents relating to those transactions, including the important note prepared by him for Mr. Goodman in which his involvement in the transaction was recorded and brochures relating to the property, documents which he said had been disposed of when his offices were being cleaned out in 1995 or thereabouts.

60. Mr. Clarke submitted that, having regard to the fact that this information was only furnished by the defendant after the plaintiff had placed before the court evidence indicating that the explanation originally given of his role was less that complete, it was unarguable that there had been a serious failure to comply with his discovery obligations. Even assuming that the appellant was not obliged to list the individual items concerned in the second schedule in the light of the construction adopted on his behalf as to the relevant requirements in the Rules of the Superior Courts, he was at the very least under an obligation to identify those categories of documents of which he was once possessed but no longer had in relation to this matter. This he had failed to do and that of itself fully justified the High Court in reactivating in part the sentence suspended in January 2001.

61. As to the second matter - the Landesbank accounts - Mr. Clarke submitted that the Landesbank accounts were of considerable significance in the context of the plaintiff’s investigations and the defendant was clearly obliged to make a serious and expeditious attempt to obtain all the relevant documentation in relation to these accounts. In the event, Mr. Clarke submitted, he made no attempt to do so until after the time for making discovery had expired when he wrote the letter of April 30th to Dr. Kieber. As the court had been informed, subsequent to the decision of the High Court faxes to Dr. Kieber had been produced by the defendant, but there appeared to be no explanation as to why these had not been produced before.

62. As to the third deficiency identified by the trial judge, the failure to comply with the requirements of Appendix C of the Rules of the Superior Courts, Mr. Clarke submitted that the failure to complete the second schedule in accordance with the requirements of the rules would have unquestionably deprived the plaintiff of important information which he required for the purposes of his investigation, had he not obtained it from other sources. This, he said, had been strikingly demonstrated in the case of the Coolamber lands.

63. Mr. Clarke said that the defendant could have been under no illusion as to what was required of him: in fact, in swearing a supplemental affidavit of discovery on foot of the High Court order of October 24th, he had provided a schedule in the appropriate form which sought to identify at least some of the categories of documents which he once had, but which no longer were in his possession. By contrast, the second schedule to the affidavit of discovery now under consideration confined itself to a general reference to documents that could not now be produced, without identifying the documents and, stating when they were in the deponent’s possession and what had become of them.

64. Mr. Clarke submitted that it was an essential feature of the discovery process that the person making discovery does not confine his discovery to documents actually in his possession : the party for whose benefit the order is made must be in a position to obtain production of documents no longer in the possession of the person making discovery from the parties who now have them. He referred in this connection to the statement of the law in Bray on Discovery [1885]

65. As to the knowledge on the part of the defendant as to his obligations in this regard, Mr. Clarke said that this had been one of the specific issues raised before the High Court on the contempt application in January 2001: in her affidavit grounding that application, Ms. Howard had referred to the fact that the defendant had not complied with his obligation to furnish a proper second schedule.

66. As to the sentence imposed by the learned High Court judge, Mr. Clarke said that the attitude on behalf of the plaintiff in the High Court had been that, they having drawn the attention of the court to the areas in which the defendant had failed to comply with the orders of the court, it was a matter for the court to determine what the appropriate sentence was. He submitted that this court should not interfere with the sentence imposed by the High Court judge for the established non-compliance with his earlier order, unless there had been some error in principle on his part or the nature of the sentence was, in the circumstances, excessive and disproportionate. He submitted that, given that what was conceded to be an entirely appropriate sentence of three months had originally been imposed, it was clear that the re-imposition of no more than a further week of the sentence was one which it was within the jurisdiction of the High Court to adopt as a suitable sanction.

67. Mr. Clarke submitted that, while it was clear that the primary object of civil contempt was normally coercive rather than punitive, it had to be borne in mind that this formulation did not exclude entirely a punitive element, a matter of considerable importance in the present proceedings, which were inquisitorial rather than adversarial in nature and where the court was entitled to bear in mind the public interest in ensuring that, not simply the defendant, but all persons appearing before the tribunal complied fully with its lawful requirements. He also submitted that the decision of the English Court of Appeal in Re W (B) and infant [1969] 1 All ER 594 to the effect that, where a suspended sentence is imposed for contempt, the court has a discretion to do what is just in all the circumstances, was correct and should be followed.

68. The tribunal of inquiry, of which the plaintiff is the sole member, was established by a resolution of both Houses of the Oireachtas to inquire into specified matters of public concern, i.e., certain planning matters and payments, as a matter of urgency. Two features of such an investigation should be emphasised. First, they are essentially inquisitorial rather that adversarial in their nature and hence not all the features associated with a lis inter partes are present. Secondly, in recent times, the Oireachtas has thought it appropriate to strengthen the powers available to such tribunals to ensure that the evidence which they require to bring their investigations to a comprehensive and speedy conclusion, whether it takes the form of oral testimony or documentary evidence, is made available to then as expeditiously as is practicable. In particular, s.4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 provides that

69. These considerations must, in my view, be borne in mind when applying to this case the principles of the civil law of contempt which, as it is agreed, are applicable.

70. In his dissenting judgment in that case, McLoughlin J said:

71. In that case, the essential issue for determination was as to whether a refusal to answer a question during the course of civil proceedings constituted contempt in the face of the court which was criminal contempt and accordingly punishable only by a determinate sentence. The majority of the court were of the view that it was a criminal contempt and hence punishable by a determinate sentence only. McLoughlin J was of the view that, since the primary object of the imposition of the sentence in that case was to ensure that the question was answered, it was appropriate to deal with it by means of an indeterminate sentence until the contemnor had purged her contempt.

72. Accordingly, while the decision suggests that there may be some room for a difference of view as to whether a sentence imposed in respect of civil contempt is exclusively - as distinct from primarily - coercive in its nature in civil proceedings generally, I am satisfied that where, as here, the proceedings are inquisitorial in their nature and the legislature has expressly empowered the High Court to secure compliance with the orders of the tribunal, it cannot be said that a sentence imposed in respect of a contumelious disregard of the orders of the tribunal and the High Court is coercive only in its nature. The machinery available for dealing with contempt of this nature exists not simply to advance the private, although legitimate, interests of a litigant: it is there to advance the public interest in the proper and expeditious investigation of the matters within the remit of the tribunal and so as to ensure that, not merely the appellant in this case, but all persons who are required by law to give evidence, whether by way of oral testimony or in documentary form, to the tribunal comply with their obligations fully and without qualification.

73. I am also satisfied that a court has jurisdiction to suspend, in whole or part, a sentence of imprisonment imposed in respect of civil contempt and thereafter, in the event of a further contempt, may at its discretion require the party in default to serve some or all of the balance of the sentence. I would adopt the statement of the law by the English Court of Appeal in the case of Re W B (an infant) [1969] 1 All ER 594. In that case, an undertaking had been given to the court by a person that he would have no communication with an infant ward. There having been a breach of that undertaking, a sentence of imprisonment was imposed. It was, however, suspended on condition that the person did not communicate or associate with the ward. When the order was disobeyed again, the trial judge directed that the sentence of imprisonment should take effect, expressing the view that he had no jurisdiction to do otherwise. The Court of Appeal held that this was a mistaken view of his jurisdiction, the law being thus explained by Lord Denning MR:-

74. The next legal matter to be considered is the extent of the defendant’s obligations in regard to discovery. I have already set out in this judgment so much of Form 10 of Appendix C as is relevant to a party’s obligation to discover documents relating to the matters in question in a suit which were formerly, but are not now, in his possession or power. The requirements of Order 31, Rule 13 and the format of Form No. 10 reflect the experience of the law that the effect of the powerful weapon of discovery would be seriously diluted if the obligations of a party were confined to producing documents in its possession or power at the time the order is made. The law is stated as follows in Bray on Discovery:

75. I have no doubt that this purpose might well be frustrated if a party were allowed to comply with his obligations in relation to documents no longer in his possession or power by swearing an affidavit in the form adopted by the defendant in these proceedings.

76. In the course of his able submissions on behalf of the appellant, Mr. Trainor emphasised what he urged was the unsatisfactory approach of the trial judge in this case and said that, if it were the position that, in imposing the sentence of imprisonment which he did, he had taken into account the various matters contested in the affidavits filed on behalf of the parties in respect of which he had made no specific findings, that should not be allowed to stand. That submission would appear to me to be irresistible, if that were indeed what the trial judge had done. A careful reading of the judgment and a consideration of the surrounding circumstances in which that judgment was delivered has led me to the conclusion, however, that that was not what the trial judge did.

77. It is beyond doubt that the trial judge made three specific findings of non-compliance by the defendant with his order of January 15th 2001. Leaving aside for the moment the question as to whether those findings were justified by the evidence on affidavit before him and their respective significance, it is beyond doubt that they were made by him. It is also the case that, in relation to a number of other matters in respect of which there was a contest between the parties, he considered it inappropriate to arrive at any final determination. But it is of importance in this context that the trial judge not only imposed a sanction in respect of the non-compliance which he considered had been established: he also required the defendant to make a further and better affidavit of discovery. Mr. Trainor’s submission that the trial judge could not legitimately require a further affidavit of discovery to be sworn in a case where the defendant had already complied to the best of his ability with an existing order for discovery begs the question, since it assumes that that is what the defendant had done. If the trial judge were correct in his finding that there had been three specific instances of non-compliance with his earlier order, then he was clearly entitled to require the defendant to swear a further affidavit of discovery. In the light of the previous history of the matter, he was clearly entitled also, in my view, to make no finding until that further affidavit was filed as to the other matters which were in contention between the parties and I do not infer from his judgment that he was taking into account, in reactivating the suspended sentence to the extent that he did, any matters other than the matters in respect of which he had made express findings of non-compliance.

78. Those findings must next be considered. As to the first, it is clear that, in the light of the legal principles to which I have referred, the affidavit of discovery did not comply with the requirements of Order 31, Rule 13 and Form No. 10 in Appendix C, since in even the most generalised form it did not refer to any of the documents relevant to the defendant's interest in the Coolamber lands, although he later conceded that such documents had been in his possession, i.e., the sales brochure and the memorandum sent by him to Mr. Goodman (exhibit “MAH52”) .

79. Nor, in my view, can there be the slightest doubt as to the significance of that deficiency in the defendant’s discovery. To put it at its mildest, his averment on oath that

80. As to the Landesbank accounts, the plaintiff was legitimately concerned to obtain all the documentation evidencing the source and ultimate destination of the substantial sums lodged to these accounts. It is an important feature of the law as to discovery of documents that the obligation of the party required to make discovery extends not merely to documents which are, or have been, in his possession: it also extends to documents relating to the matters in question in the suit which, while not in his possession, are or have been in his power, i.e., are held by other persons on his behalf or in circumstances where he can reasonably require those persons to produce the documents, or copies of them, to him. The tribunal and the High Court were fully entitled to infer from the evidence available to them in relation to the Landesbank accounts that a significant amount of documentation in respect of those accounts was either in the possession of the defendant or of persons who could be required to produce such documentation, such as the officers of the Landesbank and, in particular, Dr.Kieber. As the letter of 30th January 1997 to the National Irish Bank in Naas made clear, such documents undoubtedly are, or were, in existence. Given the importance of the matter and the previous history of the defendant’s failure to comply with the orders of the tribunal and the High Court, it was the duty of the defendant in order to comply with his discovery obligations to pursue expeditiously by every means in his power the recovery of these documents from Dr. Kieber and any other person in whose possession they might be.

81. No such steps had been taken by the defendant when the period originally fixed for completion of the discovery expired on the 31st March of this year. Although he had been expressly released from the prohibition on communication with Dr. Kieber on the 16th January 2001 he took no steps whatever to recover any of the documents until 30th April. He then confined himself to writing one letter to Dr. Kieber and appears to have taken no further steps between then and when the High Court dealt with the matter in July of this year. I am satisfied that the trial judge was entitled to draw the inference from those facts that there had been a failure to comply with the defendant’s discovery obligation in regard to the Landesbank accounts.

82. As to the third matter - the compliance with Form No. 10 of Appendix C - I have already pointed out that, while the rules as to the discovery of documents no longer in a parties possession or power should not be construed in a manner with would be unduly burdensome or impracticable, that did not justify the use of the formula adopted by the defendant in relation to the second schedule in this case. Nor could the defendant have been under any doubt as to his obligations in this context, since this had been specifically referred to in the application to the High Court in January of this year.

83. I am, accordingly, satisfied that, in respect of these three matters, it was established that the defendant had failed to comply with the relevant orders of the tribunal and of the High Court and that, while none of the instances of non-compliance can properly be characterised as technical or minor in their nature, the failure to make any discovery of the documentation relating to the Coolamber lands was particularly serious. The question that remains is as to whether, in those circumstances, the order made by the trial judge was one that should be set aside by this court.

84. The jurisdiction of this court to interfere with the order of the trial judge in a case of civil contempt of this nature is somewhat analogous to that of an appellate court dealing with a sentence imposed in criminal proceedings. This court should not interfere unless it is satisfied that the trial judge erred in principle or that the sentence imposed was excessive or disproportionate.

85. In my view, there was no error in principle by the trial judge. Having correctly found that, in three respects, one of them of a particularly serious character, the defendant had failed to comply with his discovery obligations, he was entitled to reactivate so much of the custodial sentence as was appropriate in all the circumstances. I would not consider the imposition of a further week’s sentence of imprisonment and a fine of £5,000 - or indeed a significantly increased penalty - excessive or disproportionate.

86. I would dismiss the appeal and affirm the order of the High Court.

87. I agree with the judgment of the Chief Justice. Since it so comprehensive, it may seem excessive to add this brief contribution. I do so only because, while initially persuaded by the cogent and eloquent argument of Mr Trainor, I have come to the conclusion that on the issue variously described as relating to the Coolamber lands or Navona Limited, the Appellant has so patently defied the order of the Court and, more particularly, has sworn at least one affidavit that is demonstrably so incomplete as to entail deliberate deception, that, for this reason alone, the appeal should be dismissed.

88. The facts are fully set out in the judgment of the Chief Justice. I deal only with the issue mentioned above.

89. It will be recalled that Smyth J stated in his judgment that Navona was mentioned for the first time in the affidavit of Ms Howard sworn on 10th July 2001. At the same time, it is clear from the same affidavit that the appellant was questioned during his evidence before the Tribunal about a company called Advance Proteins Limited, which was a vehicle for certain payments passing between Mr Larry Goodman or his companies and the appellant.

90. Standing alone, Ms Howard’s statements about Navona have the quality of hearsay. They are said to be based on research carried out by the Tribunal’s legal team. They allege essentially that the appellant “was involved with Mr. Goodman in this purchase,” meaning “the purchase by an Isle of Man company Navona Limited, of fifty five acres land at Coolamber, Lucan ...”

91. The response of the appellant in his affidavit of 17th July was that he had no recollection or knowledge of Navona Limited and that he had had no dealings with it. In a literal sense, that might be true. It has not been established that the appellant knew of any Isle of Man Company under that name. However, the appellant’s claimed ignorance must be placed in the context in which his averment was made, namely that Navona was alleged to have been used as a vehicle for the purchase of the Coolamber lands. In this latter respect, the appellant swore unequivocally, in a passage specially underlined by the Chief Justice that he “was not involved in the purchase or ownership, nor did [he] have any interest in the lands, either before or subsequent to their acquisition.” He admitted only that he was an adjoining owner to the lands who was aware of their development potential. He had recommended the lands to Mr Goodman and it “was at all times up to Mr Goodman to decide whether to purchase the lands or otherwise.”

92. Ms. Howard’s further replying affidavit of 18th July contains a comprehensive rebuttal of the appellant’s claimed lack of interest in the lands. Only after reading it, did the appellant commence to reveal the true extent of his interest in the Coolamber lands. The fact that she relied on third party documents or statements becomes irrelevant, in the light of later developments. This evidence can be summarised as follows. The lands at Coolamber were offered for sale by tender on 22nd July 1987. Mr Larry Goodman produced to the Tribunal his own handwritten memo of a proposal he said had been put to him by the appellant for the purchase of the lands and how this was to be financed and the appellant gave Mr Goodman a copy of the estate agents’ sales brochure. Mr Brian Britton, then an employee of the Goodman organisation prepared two handwritten memoranda dated 17th and 21st July 1987 respectively regarding this financing. The first was headed “Coolamber.” The second was headed “LL”, stated by all concerned to be the initials of the appellant, which appears at several points in the document. A third memorandum, also apparently written by Mr Britton, and dated 23rd July 1987 reads:

93. The details of the arrangement as it emerges from these documents are sketchy. The documents themselves and the evidence given to the Tribunal about them clearly suggest, nonetheless, that the appellant negotiated an agreement or arrangement with Mr Goodman for the purchase of the Coolamber lands. The financing mechanism envisaged appears to have been that the lands would be bought by a company wholly owned by Mr Goodman, which would enable the company to obtain a loan of £350,000 for their purchase and that the appellant would be entitled to share in any profit made on resale and after the bank borrowings were discharged. It is apparently that feature of the deal that has enabled the appellant to justify his denial of any beneficial interest in the lands.

94. Ms Howard’s affidavit of 18th July also refers to information obtained from Binchys, Solicitors. The lands, it seems, were purchased, pursuant to an agreement dated 30th July 1987, by Navona Limited. Binchys have produced a copy of a declaration of trust by Navona Limited in respect of the lands in favour of Southfield Limited, the company that was to take the loan of £350,000 and over which Mr Goodman was, according to the banking arrangements, to have and maintain 100% control. In fact, he has said that he was provided with no shares in the company. He has also said that the interest in the lands was later sold to an Isle of Man Company, Vico Property Limited without reference to Mr Goodman and without discharging the interest payments he had made on behalf of Southfield Limited.

95. Most tellingly of all, perhaps, Ms. Howard exhibited an incomplete copy of a memorandum recounting the history of the land transaction. This, according to Mr Goodman’s evidence to the Tribunal, was prepared by the appellant at Mr Goodman’s request after the latter had been seeking to recover the interests payments from him. It was faxed to Mr Goodman on 12th December 1994. It is unnecessary to discuss the detail of this document especially as much of it has been disputed by Mr Goodman. Ms Howard produced it, as she said, “.. for the purpose of establishing that the [appellant].. ..has in this memorandum claimed to have held various shareholdings in the lands in respect of which he denies involvement ...” The document appears to contain an account of a number of meetings with a number of persons, particularly Mr Jim Kennedy and Mr John Caldwell, solicitor of Binchys. If true the document shows that the appellant:

96. Prompted by the material disclosed in Ms. Howard’s affidavit, the appellant gave a very different version of the matter in his own affidavit of 20th July. He described his earlier version as being “relatively concise.” In fact, it will be recalled, he had sworn that he “was not involved in the purchase or ownership, nor did [he] have any interest in the lands, either before or subsequent to their acquisition.”

97. Since it is not my purpose to make any findings about the true nature of the transactions, which are matters for the Tribunal, it will suffice if I quote some paragraphs of the appellant’s affidavit of 20th July:

98. In his affidavit of 20th July, the appellant no longer denies that he was involved in the purchase of the lands. His earlier statement was more than concise. It was untrue. In circumstances, where the appellant had already been found in contempt, had had a sentence of three months’ imprisonment imposed upon him and had served one week in prison as well as having been ordered to make further discovery, it is extraordinary that he should make a statement of non-involvement in a transaction which he knew to be of interest to the Tribunal when quite obviously he was, at the least, actively concerned. Given his stance that he had no involvement at all with the lands, he clearly could not address correctly and properly the question of what relevant documents were or had been in his possession.

99. I have concentrated on this one aspect of the contempt, because it is so egregious. I am satisfied that his failure to respect the order of the court in this one respect alone justified the imposition on him of the further period of imprisonment and the fine imposed by the learned trial judge.