Supreme Court of Ireland Decisions

1. The applicant is the widow of Mr. Michael McDonnell, who until his recent death was the group chief executive of Córas Iómpair Éireann and the chairman of one of the three companies of which it consists, Iarnród Éireann. The first, second, third, fourth, fifth and sixth named respondents are the members of an Oireachtas Sub-Committee on the Mini-CTC Signalling Project (hereafter “the sub-committee”) established by Dáil Éireann and Séanad Éireann under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997 as amended by the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act 1998. The third named respondent is the chairman of the sub-committee (hereafter “the chairman”).

2. Under its terms of reference, the sub-committee, which was established as a sub-committee of the Oireachtas Joint Committee on Public Enterprise and Transport on the 3rd July, 2001, is inquiring into two separate topics on which it is required to report to the main committee or directly to the Dáil and Séanad. Its report is also to be published in due course.

3. The first topic is the circumstances surrounding the entering into and performance of the Iarnród Éireann Mini-CTC and Knockcroghery signalling projects. The second is a cabling and telecommunications project entered into by CIE and the telecommunications company, Esat.

4. The first project was the result of what was seen by CIE as the need, in the interests of safety, to replace the old form of semaphore signalling in use on the railway lines to Sligo, Galway, Waterford and Tralee with a centrally controlled system, which is less complex than that used on the busier double track routes, and which has been termed “Mini-CTC”. The second project envisaged the development by Esat of a fibre optic network over CIE property, the basis of which was that Esat would be allowed lay its cables on CIE property and would supply them free of charge but would share Iarnród Éireann’s costs of installing its own Mini-CTC cables.

5. Previous signalling projects had been installed by Iarnród Éireann with materials purchased externally from a major signalling equipment supplier. For the new project, it was decided to invite tenders for the re-signalling project on a “turn key” basis: the chosen contractor would supply all the relevant signalling and telecommunications equipment and install it themselves. The tendering procedure involved was governed by European Union requirements and ultimately the contract was awarded to an Italian company called Sasib: they were the lead contractors for the project, but were associated in carrying it out with an Irish company specialising in cable laying called Modern Networks Limited (“MNL”). The total value of the contract was £14 million.

6. It is not in dispute in these proceedings that difficulties were experienced from the beginning of the project and that it became evident that there would be significant increases in the costs. A company called Alstom - who had now acquired Sasib - and MNL, in September 1999, produced two separate evaluation documents, which indicated a possible outturn cost of £40 million approximately. This very considerable increase in the costs of the project was a major factor in the establishment of the sub-committee.

7. Mr. McDonnell appeared before the Joint Committee on Public Enterprise and Transport when they met to consider the whole matter, as did other personnel from CIE. Mr. McDonnell died before the sub-committee began its hearings and, because the applicant and her children were concerned that the proceedings of the sub-committee might affect his good name and reputation, the applicant asked the sub-committee, through her solicitor, to grant her a right of representation on her own behalf and on behalf of her children. The sub-committed acceded to that application on the 18th July, 2001.

8. On the 3rd October last, the High Court (Kelly J) gave the applicant leave to apply by way of judicial review for a number of reliefs arising out of the conduct by the sub-committee of its proceedings. In addition, the order provided

9. The order further went on to provide

10. An application to discharge the stay thus granted was made on behalf of the respondents to the High Court and was heard by Ó Caoimh J on the 15th October. For the reasons set out in a comprehensive ex-tempore judgment, he discharged the stay on the proceedings of the sub-committee. From that judgment and order, the respondents have now appealed to this court. Initially, an application was made to the court for an order staying the order of Ó Caoimh J until the appeal could be determined. However, all parties recognised the importance of having an expeditious hearing of the appeal itself and, on the basis that the appeal would be heard last Friday, the sub-committee undertook not to resume its proceedings between then and the hearing of the appeal. Detailed written submissions were furnished on behalf of the applicant and the sub-committee and were elaborated in oral arguments last Friday.

11. The grounds on which the applicant was granted judicial review, which were principally relied on in the arguments before this court, can be summarised as follows:

12. The reliefs which the applicant was given leave to seek by Kelly J included

13. On the 5th October last, Kelly J, on the application of the respondents, varied the stay previously granted by ordering two witnesses, who had travelled from abroad, to give evidence on commission.

14. A number of affidavits were filed on behalf of the applicant and the respondents in both the High Court and in this court. In affidavits sworn by him, the solicitor for the applicant, Mr. Patrick Rowan, elaborated further on the difficulties which would arise from the decision of the sub-committee not to provide for the costs of legal representation and to defer any cross-examination of witnesses until they had all given their evidence. In addition, he referred to portions of the transcript which, he claimed, indicated that members of the sub-committee, including the chairman, had prejudged the issues which they had the responsibility of determining. He also said documentation had been made available by the sub-committee to a number of witnesses represented at the hearings, but that this documentation, which ran to several thousands of pages, had not been furnished to him until after the evidence had been given and that, when it arrived, it was apparent that no attempt had been made to index it.

15. The chairman, in the course of replying affidavits, said that the sub-committee, in order to ensure what he described as “smooth transaction of business” had decided, in general, not to permit immediate cross-examination of a given witness unless good reasons were advanced. He further said that the sub-committee had made its legal team available to the represented persons in the inquiry in order to resolve what he described as “immediate matters of legal concern”. He said that the sub-committee had been conscious of the special position of Mr. McDonnell’s family from the outset and, for that reason, had exercised its discretion to give a right of representation in the proceedings to the applicant.

16. In an affidavit sworn on behalf of the sub-committee, Ita Ní Dhónndhadha, the clerk to the sub-committee, exhibited a fax sent by her to Mr. Rowan, in which she set out the matters which would be dealt with in the remaining evidence to be deduced at its hearings and said

17. On the 16th October 2001, the applicant’s solicitors received a letter from the witness manager to the sub-committee enclosing a revised witness list. This indicated that the remaining witnesses would be heard on four days commencing on Tuesday October 30th. In a further affidavit sworn on behalf of the applicant, Mr. Howard Doyle, solicitor, said that, contrary to the statement by the clerk of the sub-committee, it might be that the evidence to be given by some or all of these witnesses would relate to and reflect upon the late Mr. Michael Mc Donnell.

18. In his judgment in the High Court, Ó Caoimh J said that he was not disposed to enter on a consideration of the strength of the applicant’s case for the reliefs he was seeking by way of judicial review in the absence of a motion to set aside the order giving such leave. He did, however, refer to doubts as to whether the applicant’s constitutional rights were infringed, having regard to the provisions of S.6 and 7 of the Civil Liability Act, 1961 and the decision of Gannon J in Hilliard -v- Penfield Enterprises Limited [1990] 1 IR 138, from which it could be inferred that the constitutional guarantee of a person’s good name was confined to living persons. He also referred to the fact that the committee was required by its own rules and procedural guidelines to observe the principles of natural justice and that it followed that the chairman must ensure that members of the sub-committee should not make statements in advance of questioning

19. Having considered the authorities cited to him as to where the onus of proof lay in an application of this nature and the extent of the burden of proof involved, Ó Caoimh J concluded that the onus was on the sub-committee to establish that the stay should be discharged and that the test to be applied was the balance of convenience. He went on to say that, in assessing the case for discharging the stay, he had taken into account the following factors:

20. He also said that he was conscious of the need for deference in restraining the Houses of the Oireachtas, though he was not disposed to conclude that, at the leave stage, it was impermissible for the court to restrain the activity of the Houses of the Oireachtas in the manner in which it had done. He was, however, satisfied in the light of the various factors to which he had referred that the order giving leave should be varied by discharging the stay. He said that he was mindful in doing so of the undertaking given to the court on behalf of thesub-committee that its report would not be published prior to the conclusion of the hearing of the judicial review proceedings.

21. On behalf of the applicant, it was submitted to this court that the onus of proof lay on the party seeking to have the stay removed and that the burden of proof resting on the moving party was “a heavy one”, citing the decision of Carswell J (as he then was) in Re Savage and Others Applications [1991] N.I. 103. It was urged that the decision in American Cyanamid Compay -v- Ethicon Limited [1975] 1 ALL ER 504, applied in this jurisdiction in Campus Oil Limited -v- Minister for Industry and Energy [1983] 2 IR 88, was relevant only to the granting or withholding of an interlocutory injunction and that the same criteria did not apply to an application to discharge or vary an order giving leave to apply for judicial review.

22. It was further submitted that, even if those principles did apply, the balance of convenience was not in favour of discharging the stay. It was submitted that there was insufficient evidence to satisfy the court that the hearings would be completed within the relatively short period deposed to in the affidavits filed on behalf of the respondents and that, in any event, where the applicant had established an arguable case that the sub-committee had failed to act in accordance with constitutional justice and natural justice, the protection of her constitutional rights outweighed the alleged inconvenience to the sub-committee.

23. It was further submitted that, while the work being carried out by the sub-committee was undoubtedly in the public interest, they had also been armed with drastic new powers concerning the compellability of witnesses and the production of documents and that there was no “public interest” which would justify the application and use of those powers in an inquiry of this nature in a manner which would damage the personal rights of a citizen.

24. It was further submitted that, if the stay were removed, the leave granted by the High Court would be effectively rendered nugatory, since statements could then be made which reflected on the good name of the late Mr. McDonnell in a hearing vitiated by a want of fair procedures and characterised by pre judgement and bias on the part of the committee before the judicial review proceedings could be completed in the High Court. In those circumstances, any relief which might be granted to the applicant at the ultimate hearing in the High Court would be of little, if any, value to her.

25. On behalf of the sub-committee, it was submitted that the decision in Re Savage and Others Applications was concerned with the standard of proof to be applied where it was sought to set aside an order granting leave to apply by way of judicial review. Wholly different considerations arose where, as here, the application was, not to set aside the order granting leave, but simply to have the stay removed: the High Court judge had been correct in treating the principles in American Cyanamid Company -v- Ethicon Limited and Campus Oil Limited as the appropriate principles in determining whether a stay already granted should be discharged. The more recent decision of the High Court in England in R -v- Ministry of Agriculture, Ex-Parte Monsanto , [1998] 4 All ER. 321 was also relied on by the respondents.

26. It was submitted, that applying those principles, the balance of convenience was clearly in favour of discharging the stay granted. Far from facilitating the applicant in her desire to have an expeditious cross-examination of the witnesses, the continuance of the stay would ensure that such cross-examination was indefinitely postponed. That would also apply to the right of other interested parties to cross examine witnesses already heard and to adduce further evidence said to be relevant to the inquiry. These considerations were all the more important, it was said, given that the evidence-gathering phase of the inquiry was almost complete and that the sub-committee was unaware of any allegation being made by any of the remaining witnesses which would adversely reflect on the late Mr. McDonnell.

27. It was further submitted that the sub-committee did not have a rigid policy of refusing cross examination at the time a witness gave his/her initial evidence: it welcomed applications for such cross examination and had acceded to them in appropriate cases.

28. It was also urged that, since the current term of the Oireachtas was coming to a close, there was a real risk of the work already having been done going completely to waste, if, as a result of a continuation of the stay, the report of the sub-committee had not been published before the dissolution of Dáil Éireann. It was also submitted that, if the stay was discharged, it was unlikely that the report of the sub-committee would be published before these proceedings were finally determined: if that situation were to change, the sub-committee would so inform the High Court.

29. The legal principles applicable to the variation or discharge of a stay of this nature must be first considered. The stay in this case was granted pursuant to Order 84, Rule 20(7), of the Rules of the Superior Courts which provides that

30. No authority directly in point was cited as to the principles which should be applied in deciding whether an order made pursuant to this rule should be varied by removing the stay. In Re Savage and Others’ Applications , relied on by the applicant, Carswell J, as he then was, considered the principles applicable in Northern Ireland where an application was made to the court for an order setting aside an order granting leave to apply for judicial review. The learned judge in that case reviewed a number of English authorities, in some of which it had been said that, while such a power exists, it should be only exercised sparingly and in wholly exceptional cases. In the light of those decisions, he concluded that, while he had jurisdiction to hear the application then before him, the burden resting on the respondents was “a heavy one”.

31. That was indeed an understandable conclusion and it might well be that a similar view would be taken in this jurisdiction, given that the threshold for granting leave in the first instance is relatively low. But we are not here concerned with an application such as was before Carswell J: the respondents in this case do not suggest that leave should not have been granted by Kelly J in the first instance and they accept that the applicant has an arguable case to present. They are solely concerned to secure a variation in the order granting such leave by removing the stay.

32. While the learned High Court judge took the view that the onus was on the respondents to satisfy the court, in the light of the criteria laid down in American Cyanamid and Ethicon, including the balance of convenience, that the stay granted should be discharged, it could be plausibly contended that, on the contrary, the onus rests on the applicant to satisfy the court, where it is challenged, that it should be kept in place. There is nothing in the wording of Order 87, Rule 20(7)(a), to suggest that, where an applicant for leave seeks an order of prohibition or certiorari, he is further entitled ex debito justitiae , to a direction that the proceedings should be stayed. There seems no reason in logic why the applicant, where the grant of the stay is subsequently challenged should not be under an onus to satisfy the court that it is an appropriate case in which to grant such a stay.

33. Since, however, the finding by the learned High Court judge that the onus was upon the respondents to satisfy him that the stay should be discharged was not challenged in this court, I proceed to consider the case on that basis. As it is not in dispute that there is an arguable case to be presented on both sides and it is not suggested that damages would be an adequate remedy, the issue as to whether the stay should be discharged falls to be determined in the light of where the balance of convenience lies.

34. It is not in dispute that the inquiry which is being conducted is in the public interest, since it is concerned with the manner in which relatively large public funds were applied for the purposes of a statutory body. While the extent to which the hearings would be delayed by the continuance of the present stay until the final determination of the proceedings in the High Court - or, it may be, on an appeal to this court - is necessarily uncertain, in the nature of things it is bound to be significant. Moreover, given that the Oireachtas is in the last months of its present term, the risk that the sub-committee will not have completed its inquiry and published its report prior to the dissolution of Dáil Éireann, in the event of the stay being continued until the final determination of these proceedings, is a real one, which must affect any determination as to where the balance of convenience lies.

35. While it has been emphasised on behalf of the applicant that, in the absence of a stay, currency may be given to imputations against the late Mr. McDonnell which will be given wide publicity in the media, that must be balanced against the fact that the major concern of any person whose reputation is under scrutiny in an inquiry of this nature will be with the findings contained in the report. Since the sub-committee have made it clear that they are prepared to withhold the publication of their report until after these proceedings have been finally determined, the rights of the applicant in this context are adequately protected.

36. It is, in any event, beyond doubt that the applicant has been afforded important safeguards which will be of assistance to her in defending her late husband’s reputation against unjust attack. The sub-committee allowed her to be legally represented, although she is clearly in a significantly different position from those persons still alive who have an admitted and indisputable constitutional right to the vindication of their good name. Her legal representatives are entitled to cross examine any witnesses whose testimony may be in any way damaging to the interests she seeks to protect and, while it is doubtless always preferable to be able to mount an immediate challenge by way of cross examination to such evidence, it is, at least arguably a matter for the sub-committee to determine the time at which such cross-examination should be conducted. That is an issue which will have to be resolved in the High Court during the course of the present proceedings, but it certainly does not, of itself, constitute a denial of constitutional and natural justice such as to demand the intervention by the High Court in the form of so drastic a weapon as an indefinite stay of thesub-committee’s proceedings.

37. Nor can one disregard the fact that the effect of granting the stay, given the relatively small number of witnesses still to be examined, will be to defer, rather than expedite, the cross-examination by the applicant of any of these witnesses. It will also have the undesirable consequence of deferring the cross-examination by other interested parties of any of these witnesses.

38. As for the questioning which, it is said on behalf of the applicant, demonstrates a tendency to pre-judgment and bias on the part of members of the sub-committee, I would entirely agree with the learned High Court judge that it is important that the members should refrain from questions or comments which give those whose conduct is under scrutiny the impression that their role in these matters is not being investigated with the objectivity and fairness which they are entitled to expect. That having been said, it will be for the High Court in the proceedings now in being to determine whether the extent of any bias or lack of objectivity on the part of members of the committee is such as to render the proceedings of the sub-committee a nullity. It is not, of itself, a sufficient ground, in my view, for halting the inquiry at this stage.

39. As to the refusal of the sub-committee to pay the costs of the legal representation of the applicant, S. 3(2) of the 1997 Act provides that the reasonable expenses of a person who, pursuant to a direction, attends before a committee or gives evidence to it that the committee considers, in the interests of justice, necessary or expedient for protecting and vindicating the personal and other rights of that person are to be paid out of monies provided by the Oireachtas. The chairman, in his opening statement to the sub-commitee, said that the sub-committee had been advised that the extent of the right of persons attending to be paid their expenses and, specifically, whether it included the payment of legal representation was not spelled out in the Act and that the sub-committee had no formal role in the granting of such expenses which, under the legislation, was a matter for the Minister for Finance.

40. It is not for this court, at this stage of the proceedings, to adjudicate on the correctness of that view in law, any more than it was for the High Court. It is sufficient to say that, if the applicant is found to be entitled, either as a matter of constitutional right or by virtue of the provisions of the 1997 Act, to be paid the costs of legal representation in these proceedings, she will be entitled to an appropriate declaration to that effect which will no doubt be acted upon by the Minister for Finance. It is clearly not, however, a ground on which, at this stage, the entire proceedings of the sub-committee could be stayed.

41. While it was not disputed on behalf of the sub-committee that the documentation initially furnished to the applicant’s solicitors had not been adequately indexed, it would appear that documentation relating to the evidence of the two witnesses who gave evidence on commission, was adequately indexed and the court was informed during the course of the appeal that the same would apply to any remaining documentation supplied to the applicant’s solicitors.

42. This sub-committee, having been established by a joint Oireachtas committee, must be regarded as part of the legislative arm of government. While it has been made clear on more than one occasion that the respect which each branch of government owes to the other branches will not inhibit the judicial branch from intervening where the Constitution is being violated by either or both of the other branches, I am satisfied that such a situation has not been reached in the case of thesub-committee. The learned High Court judge was, in my opinion, correct in concluding that the balance of convenience in the present case was in favour of discharging the stay originally granted. I would dismiss the appeal and affirm the order of the High Court.