Supreme Court of Ireland Decisions

Judgment Title: O'Callaghan & ors -v- Judge Alan Mahon & ors

Neutral Citation: [2007] IESC 17

Supreme Court Record Number: 398/06

High Court Record Number: 2005 1289 JR

Date of Delivery: 30 March 2007

Court: Supreme Court

- 85 -

"For the purposes of disposing of this appeal . . . I think it is sufficient to rely only on In re Haughey [1971] I.R. 217 and to state that the tribunal in this case did not comply with the requirements of the Supreme Court laid down in that case.

A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient execution of its work requires that there be such a policy: A literal application of court procedures will often not be either necessary, desirable or efficient. A tribunal is also perfectly entitled to conduct separate hearings of separate modules and to try as far as possible to discipline counsel and the witnesses so that the evidence at any given time is confined to the evidence relevant to that module.

This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested and which may not be available to a court of law, it is always bound to ensure, as far as possible, compliance with constitutional rights and obligations and that, of course, includes the vindication of a person's good name. For all the reasons put forward by Hardiman J. much more eloquently than I would be able to do, it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against Mr. O'Callaghan and of which he had no prior notice, be duly produced. The tribunal relies on an understanding of confidentiality. It is not suggested, however, that the confidentiality was absolute nor could it have been. The tribunal could not possibly ensure absolute confidentiality relating to information, which, for instance, might turn out to be highly relevant to the very matters that it was investigating. Any such confidentiality must necessarily be limited to information, in the event found not to be necessary to be used at an oral hearing. If, however, the information becomes absolutely essential for the purposes of cross-examination pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can be judicially reviewed for doing so.

The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In particular having regard to the clear views of this court in In re Haughey it would not seem to me to be necessary to consider to what extent the numerous cases and statutes relating to the law of evidence for the purposes of the courts must necessarily be applied to every cross-examination in a tribunal.

I am satisfied that in this case the tribunal applied its own policies too rigidly and in the event infringed the Constitution. I would dismiss the appeal."

"In my judgment it is now irrelevant what assurances(s) (if any) were considered to have been given to the court and such as did arise had their origins in counsel's submissions - because in the events the materials have now been disclosed as a result of the court orders, and any erroneous assessment or adjudication as to the inconsistencies or degrees thereof stand as set aside and can be addressed by the Applicants in open session at any future hearing by the Tribunal".

. . . it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the Tribunal against Mr. O'Callaghan and of which he had no prior notice be duly produced."

"In my judgment it is incumbent on the Tribunal to recall Mr. Gilmartin so as to enable the applicants (now in possession of all the requisite documentation) to exercise the effective cross-examination which they claim to have been denied to them in the past. The Quarryvale II module has as yet not been embarked upon by the Tribunal and in this regard the Tribunal, in its circulation of documents has followed the guidance of the courts as set out in [the earlier O'Callaghan Case]. Indeed counsel to the tribunal will have a role in this regard in order to test the credibility of the evidence."

"A. And that the Tribunal be requested to conduct its inquiries in the following manner, to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:-

(i) to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under the Acts, in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters,".

"24. The Tribunal of Inquiry operates as an inquisitorial body. While a Court hears evidence identified or collected by or on behalf of the parties appearing before it and does not normally interest itself in this aspect of any case, a Tribunal on the other hand is obliged to investigate and seek information where possible, examine such information as collected by it and then come to a decision as to whether such information merits the hearing of the matters in public and as a consequence whether a public inquiry should be conducted on foot of that information.

25. In circumstances where the Tribunal concludes that a public inquiry is not merited it therefore remains neutral as to the truth or falsity of the information that had come to light in the course of the private investigative stage.

26. The Tribunal proceeds to public hearing where following investigations the Tribunal believes that there is good and sufficient reason to merit a public inquiry.

27. The Tribunal is not confined to proceeding to public inquiry only where there is a prima facie or strong case for doing so. The Tribunal does not consider the fact that, on its face, a particular matter seemed outlandish and incredible to be a reason for disregarding the matter without any investigation. The validity of this approach has been established by the Second and Third Interim Reports of the Tribunal.

28. Unlike a Court, the Tribunal must identify potential areas of interest or concern to the Tribunal. It must direct its' legal team as to the type of investigation to be carried out thereto. It must evaluate the information gathered by its legal team with a view to determining whether a public inquiry is merited into any matter revealed therein. It must determine which issues require to be examined at a public inquiry and must decide which matters will not be the subject of a public inquiry. It must decide what evidence it intends to call at the public inquiry. Following upon this, Members of the Tribunal must sit in judgment on the evidence heard in public and any submissions made thereon, and make a Report on their findings based on this evidence to the Oireachtas.

29. In an inquisitorial inquiry therefore the function of the Members of the Tribunal is to direct the gathering of information from the outset, to decide whether based on the material collected in its preliminary investigation, which matter do and do not merit public inquiry and subsequently to sit in public hearing in relation to those matters and to hear evidence at the public hearing. The Members of the Tribunal keep an open mind on all matters until such time as they come to make their final findings of fact and prepare the report for the Oireachtas.

30. It is necessary for the Chairman and Members of the Tribunal when hearing evidence in public to exclude from their minds information which has come to their attention in the course of the private inquiry stage. To this end, they are required to draw upon their training and experience as lawyers and judges on an ongoing basis."

"1. I draw the attention of parties interested in the business of the Tribunal to the fact that the nature of the Tribunal is primarily an inquisitorial rather than an adversarial one. Consequently the evidence before the Tribunal will be led by Counsel on behalf of the Tribunal.

On 13th January, 1999 at 2.15 p.m. the Chairman stated:-

"This Tribunal in the course of its investigation has received in confidence a considerable volume of material. As with all Tribunals, material is provided on the basis that its confidentiality will be maintained. It is only when a particular document has been found by me to be relevant to an issue before me that it is circularised to persons other than the source from which the document emanated. The confidentiality of the documents, which are deemed not to be relevant to the issues before the Tribunal, remains."

" In summary the functions and duties of the Tribunal are to inquire, to endeavour to seek out the truth and report to the Oireachtas on the matters referred in the terms of reference. No party or person comes before the Tribunal as an accused person, in other words, no person or party is on trial before the Tribunal and no person or party can be found guilty of a criminal offence by the Tribunal. Finally, the Tribunal is inquisitional in nature unlike a court of law."

Following evaluation of the questionnaires, a large number of potential witnesses were identified. To-date, more than 210 persons have been interviewed by the Tribunal in this regard and hundreds more have been spoken to or communicated with by members of the legal team. Following the amendment of the Terms of Reference, a further large number of interviews were conducted in relation to matters arising under paragraphs A.5 and E.1 and E.2 of the Terms of Reference as amended. Interviews in relation to matters arising from the Terms of Reference are continuing.

In addition to issuing the questionnaires and analysing the replies received, the Tribunal sought and obtained files and records from planning authorities and others and sought and obtained copies of Garda files on earlier investigations carried out by the Gardai into allegations of corruption in the planning process. The Tribunal sought to interview persons who were believed to be in possession of information which might be of assistance to the Tribunal and this interview process is continuing.

A passage from the 1944 Report of the Tribunal of Inquiry into Dealings in Great Southern Railways Stocks is equally applicable to this Tribunal:-

" … for want of “parties” in the ordinary sense, the Tribunal itself had to assume the task of endeavouring to collect evidence, and information which might lead to evidence. In so doing, it was necessary, in the first instance, provisionally to accept statements at other than first hand and matters of hearsay which were, of course, not legal evidence. This had to be done in an effort to trace such second-hand material and rumours, of which there was no scarcity, to their original source – a tedious and frustrating process … "

"The Tribunal has received a huge number of documents and files from various planning authorities, government departments and financial institutions within the State. In some cases, the Tribunal has received documentation from financial institutions outside the State, where the consent of the relevant parties has been forthcoming. This documentation has had to be considered and analysed in detail by the Tribunal as part of its confidential preliminary inquiries in private and this process is continuing.

Due to the huge volume of documentation involved, the Tribunal was obliged to develop a fast computer-based document retrieval system. The document retrieval system, designed and developed by this Tribunal, has since been used by the Dáil Public Accounts Committee, is at present being used by the Lindsay Inquiry and by the Inquiry being conducted by Inspectors appointed by the High Court to inquire into Ansbacher (Cayman) Limited. The Tribunal’s work in relation to the document retrieval system has been publicly acknowledged by the Dáil Public Accounts Committee."

"I will now read the ruling of the Tribunal. This ruling is in response to requests made by a number of parties to whom representation has been granted that the Tribunal should release to them all information, statements or other documents or information provided to the Tribunal by Mr. Gilmartin and the same be circulated to the interested parties so as to enable Mr. Gilmartin to be cross-examined in relation thereto. In accordance with its established procedure, the Tribunal has in advance of Mr. Gilmartin's evidence already circulated to such parties Mr. Gilmartin's narrative statement of the facts upon which the Tribunal has determined that a public hearing is merited.

In addition to this statement, the Tribunal has further documentation which includes details of communications between Mr. Gilmartin and his solicitors and members of the Tribunal's team. In addition, the Tribunal has been provided with a document prepared following a question and answer interview between Mr. Noel Smyth, a solicitor then acting on behalf of Mr. Gilmartin, and Mr. Gilmartin. This document was provided to the Tribunal by Mr. Smyth at the request of Mr. Gilmartin in 1998.

The Tribunal legal team was neither present at this interview nor instrumental in the preparation of the record of such interview. The document was provided to the Tribunal upon express terms as to confidentiality which would be set out in detail later in this ruling.

The general issue of the confidentiality of documentation and information furnished to the Tribunal in the course of its inquiries has already been ruled upon and explained in detail in the Tribunal’s initial ruling on confidentiality delivered at the commencement of the Tribunal on the 14th of January 1998 and has been elaborated upon in subsequent rulings of the Tribunal, including those delivered on the 20th of January 1999, the 20th of November 2002, and the 4th of February 2003.

The Tribunal recognises that it has a duty of confidentiality to persons from whom it has received documents or information in confidence. Documents will only be circulated where the Tribunal has determined that they are relevant, admissible and probative. Save in exceptional circumstances, the Tribunal will not circulate documents or information where such documents or information was provided to the Tribunal upon specific terms or conditions or limitations imposed or agreed at the time that the documentation or information was furnished to the Tribunal.

The Tribunal remains at all times the appropriate authority to decide what documentation is relevant, admissible and/or probative in its proceedings, and in particular to decide whether any exceptional circumstances exist such as to warrant a departure from the established rules of confidentiality in any particular instance.

The documents now sought to be considered fall into two categories. Firstly, those prepared in the course of the private investigative stage of the inquiry by members of the Tribunal’s legal team following interview or contact with Mr. Gilmartin and, secondly, the documents provided by Mr. Gilmartin’s then solicitor, Mr. Smyth, to the Tribunal.

The Tribunal has determined that the first category of documents remain confidential to the Tribunal and have ruled that they will not b circulated. The Tribunal is satisfied that there are no exceptional circumstances in existence which merit a departure form the Tribunal’s established procedure.

In relation to the second category of documents, the Tribunal notes that this documentation was provided to the Tribunal upon specific terms set out by Mr. Gilmartin’s then solicitor and are quoted verbatim as follows:

1. It is a draft preliminary statement that may be subject to changes, amendments and/or correction. Tom Gilmartin is furnishing same as an aid to the Tribunal without giving any commitment in respect of confirming or ratifying same.

2. Tom Gilmartin reserves the right to make any amendments, corrections or changes and/or to withdraw any allegations set out therein which he may on his sole and absolute discretion based on further inquiries he is making, considered fit. He wishes to check and recheck a number of issues and to try and find documentation in respect of various issues, some of which he believes may have been destroyed or lost.

3. He is relying upon the various assurances given to him. Please treat this on this basis and on the basis that same is furnished on a strictly private and confidential basis without being disclosed to any third party.”

The Tribunal is satisfied, having reviewed the circumstances in which this second category of documentation was furnished to the Tribunal, that it is subject to specific assurances on confidentiality and nondisclosure by the Tribunal. The Tribunal does not at this time consider that there are circumstances which merit or which allow for a departure from the terms upon which the document was provided to the Tribunal and, accordingly, refuses the application for its circulation.

The Tribunal is mindful of the fact that it is essential for the efficacy of the Tribunal’s investigation that it has the capacity to treat documentation provided to it in confidence on a strictly confidential basis. Without such capacity, persons providing information to the Tribunal would undoubtedly be dissuaded from providing information which is necessary to the Tribunal to carry out its task. The conduct of private interviews by members of the Tribunal’s legal team, with potential witnesses, and the receipt of information and documentation of a strictly confidential basis are part and parcel of the investigative and information-gathering process with which the Tribunal is charged. It is only in exceptional circumstances that the Tribunal will consider departing from it established procedure."

The public inquiry involves the taking of oral evidence of witness on oath and, in the course thereof, the examination of relevant documents obtained by the Tribunal. The Tribunal conducts its inquiries in "modules" relating to specific parcels of lands or other specific subjects.

The following steps are involved:-

(e) Prior to the calling of witnesses in any module, Counsel to the Tribunal outlines in an opening statement the subject matter of the module and any party may respond to the opening statement before the calling of witnesses commences;

(f) A witness, called to give evidence, is first examined by Counsel to the Tribunal (i.e. every witness is a Tribunal witness);

(g) Following examination of a witness by the Tribunal, that witness may be re-examined by his/her own legal representative or volunteer further information on oath for the purpose of adducing any additional information considered relevant to the inquiries of the Tribunal;

(h) A person who considers that a witness is giving evidence which affects him/her/it is entitled to cross-examine that witness on that evidence;

(i) The documents in the Brief are presented in public as and when they apply to the evidence of a witness;

(j) The Brief is supplemented, following its initial circulation, as and when new documents and/or new issues come to light. The Book of Witness Statements is similarly updated;

(k) Not everyone who believes they are affected by the inquiries of the Tribunal are granted a right of legal representation before the Tribunal but, instead, the Tribunal requests that an applicant for legal representation explain the basis upon which they say they should have a legal representative present at a particular part of the inquiries of the Tribunal;

(l) All issues relating to costs incurred by persons involved in the inquiries of the Tribunal (whether involved in the public inquiry, in the preliminary investigations in private, or in both) are decided by the Tribunal at its discretion on foot of the Tribunals Inquiry (Evidence) Acts.

The foregoing is not intended to be a comprehensive guide, but rather to outline what takes place. If you have any queries in relation to the foregoing, please do not hesitate to contact me or another member of the legal team."

"27. The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily expose the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other method of investigation would be adequate.

28. Normally persons cannot be brought before a tribunal and questioned save in civil or criminal proceedings. Such proceedings are hedged around by long standing and effective safeguards to protect the individual. The inquisitorial procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional cases in which such procedures must be used to preserve the purity and integrity of our public life without which a successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur, the evil, if it exists, shall be exposed so that it may be rooted out or if it does not exist, the public shall be satisfied that in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are satisfied that this would be difficult if not impossible without public investigation by an inquisitorial Tribunal possessing the powers conferred by the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and report. The task of inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public confidence can be fully restored."

"Those considerations are also applicable in this jurisdiction. There are various models which may be availed of by the Oireachtas and the executive in the form of commissions or committees, in the latter case, either within the Oireachtas or external to it, for the purpose of advising them as to the desirability of legislation on particular topics. The essential purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of urgent public importance which it is to inquire into and report those findings to parliament or the relevant minister."

"A tribunal of inquiry of this nature involves the following stages:

"Neither can it be submitted that the public or any portion thereof are entitled to be present at the preliminary investigation of the evidence for the purposes of ascertaining whether it is relevant or not.

If these inquiries in this investigation were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby...

The Court is satisfied that the Tribunal was entitled to conduct this preliminary investigation in private for the purpose of ascertaining what evidence was relevant and to enable the Tribunal in due course to serve copies of such evidence on the plaintiffs which it is obliged to do in order to enable them to exercise their constitutional right to be present at the hearing of the Tribunal where such witnesses will give evidence on oath and be liable to cross-examination."

"The parties have proposed and I am prepared to accept this as the correct statement of the test that the Court ought to apply when reviewing a decision that impinges on constitutionally guaranteed rights. However, it must at all time be borne in mind that the jurisdiction of this Court is limited to the review of the decision. The fact that the constitutional rights of a person affected by the decision are implicated is not a licence for the Court to stand in the shoes of the decision-maker and to speculate as to whether or not it would have come to the same conclusion. The function of the High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal, not whether or not is was correct. The freedom to exercise a discretion necessarily entails the freedom to get it wrong; this does not make the decision unlawful. Consideration of the alternative position can only confirm this view. The effective administration of a tribunal of inquiry would be impossible if it were compelled at every turn to justify its actions to the High Court. The legislature has entrusted a broad measure of discretion to such tribunals, including the discretion to decide how the inquiry will proceed and what evidence will be admitted, and it is no part of the duty of this Court to whittle down that discretion, with the inevitable deleterious effects that would have the effective discharge of the important public tasks with which tribunals of inquiry are burdened."

"It is not in doubt that where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the decision-making process viewed in its entirety entrails procedural fairness."

"The bias alleged in this case is a bias consisting of pre-judgment. The plaintiff's case, in very brief summary, is that a consideration of the question of the making of the decision as to the continuance or termination of his service as a consultant in the hospital cannot fairly be carried out by reason of the fact that the persons who should carry it out have pre-judged his case. There is no suggestion of personal animosity, personal gain or personal self-interest in any member of the board as a form of bias. The sole form of bias alleged is pre-judgment . . .
I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different from the standard which was applied in the High court, is the question as to whether a person in the position of the plaintiff, Mr. O'Neill, in this case who was a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the board. That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description."

"That standard is applicable to this case. In the High Court there was no suggestion of personal favour or personal interest, i.e. subjective bias of the learned High Court judge. The actual state of mind of the judge was and is not in issue. What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge on issues which are at the kernel of this case."

". . . a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice."

"It seems clear from the case law in Ireland and England that an allegation of bias must be made on foot of circumstances outside the actual decisions made in the case itself. I would accept that in a situation where there was an arguable case of bias based on traditional proofs the added factor of cumulative wrong decisions all one way might be tantamount to corroboration of alleged bias and be a relevant factor in that restricted sense in the proving of bias. But of itself and by itself it can never be evidence of bias."

"My understanding of the judgments of Keane C.J. and Barron J. is that should a decision-maker pursue a line of enquiry concerning a matter relevant to the decision to be made in a tendentious or unfair manner, this does not in itself permit, as a matter of law, the decision to be impugned on the grounds of bias but rather it falls to be reviewed in accordance with the requirements of fair procedures or natural justice. This is because the ‘factor’ involved is internal and not external or extraneous to the decision making process."

(a) Is this a decision by the Tribunal which adjudicated upon the credibility of Mr. Tom Gilmartin?

(b) Is it a decision in favour of Mr. Tom Gilmartin's credibility and contrary to Mr. Owen O'Callaghan?

(c) Even if it is such a decision, is there some extra ingredient which would cause a reasonable man to believe that the Tribunal had closed its mind on credibility?

"We do no service to the public in general if we subject every decision of every administrative Tribunal to minute analysis."

(Per O'Flaherty J. in Faulkner -v-Minister for Industry and Commerce)
(d) Procedural decisions of the Tribunal are reviewable - and a
fortiori post the earlier O'Callaghan case must be so.

"It is not a licence for the courts to stand in the shoes of the decision maker".

I would adopt and apply these principles to the appeal.

"I met O'Hanrahan in Buswells Hotel one day in January 1989 at 4.30pm. I met Seamus Brennan on the following day. On Wednesday 29th January 1989, I met O'Hanrahan. O'Callaghan was standing at the bar with Ambrose Kelly. I was told I had to meet Councillors and this was arranged."

"It now appears that the Tribunal has reached a conclusion herein which is adverse to me and did so without any notice to me of this issue. The Tribunal states at paragraph 155 that it did not regard the existence of a difference in dates as significant. It appears to have reached this conclusion without proffering to me relevant information and appears to have omitted to consider the fact that the reason why the date is significant is that there is a substantial difference between the parties about the accounts of this meeting. Mr. Gilmartin is incorrect on this date then it has implications for the credibility of his subsequent account of the meeting and his testimony generally. The Tribunal has now determined that the existence of a difference in dates is not significant. This conclusion has been reached without affording me an opportunity to cross-examine Mr. Gilmartin on the documents which have recently been made available to me. I regard this conclusion as serious and fundamental and I do not understand how cross-examination at this stage would be of assistance to me in circumstances where the Tribunal has already formed this conclusion in relation to a very important matter."

"I find it extraordinary that Mr. Gilmartin could be allowed say to a third party that the Tribunal informed him that they would prove fraud against me and the Bank and that this statement, which the Tribunal says was totally false, was not in the view of the Tribunal a matter which fundamentally went to his credibility."

"At the end of the day however, I and the other applicants are left in a position where we no not know whether this was said or not."

"... and through the negligence of Seamus Maguire, the contract which Mr. Gilmartin actually signed, provided that £1.35m should be paid in October, 1989and a further £1.35m on 31st January, 1990."

"A. I am not quite sure if I ever told them until now.
Q764 I suggest to you that you did never tell them until now?

"In my evidence to the Tribunal, I told the Tribunal that I had told Ms. Harney about my visit to the Dáil. However, having reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and Ministers in Dáil Eireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that evidence to the Tribunal I may have been confused with another housewarming party which also took place in Dalkey a year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms. Harney was not present at the second housewarming."

"As a result of the decision of the High Court in July 2005, the redactions were removed from this document also and it transpires that what is stated is that Mr. Gilmartin claims that he received the information from a friend of his whose name he gives and it was in the house of this friend in Dalkey that Mr. Gilmartin met Mary Harney at a party. This name is different to the name first given by Mr. Gilmartin. Therefore it is clear that on 28th June 2000, Mr. Gilmartin specifically referred to meeting Mary Harney at a party but said nothing about telling her about the £5m demand in Dáil Éireann. The party is alleged to be held by a named person in Dalkey. Two years later October 2002, Mr. Gilmartin says that the party was held by a different named person and its in Killiney. For the first time he says that he told Mary Harney at that time 'what was going on'.

"The fact is that there were two memoranda which contained a reference to this matter and yet the Tribunal in asking for a supplementary statement took no steps whatsoever to disclose these memoranda and furthermore after the Supreme Court hearing redacted these documents in the manner described in paragraph 37. For the Tribunal now to say that I can cross-examine Mr. Gilmartin and make submissions to the Tribunal on the matter gives me no comfort whatsoever particularly in circumstances where notwithstanding all that had happened and the Order of the Supreme Court, the Tribunal still took the view that I should not be furnished with the unredacted statement."

I would dismiss this aspect of the applicants' case.

"at one stage he saw [a prominent named politician] talking in an alcove to OOC. TG had decided to leave and saw this on his way out. OOC called him back and asked him where he was going. TG said he was fed up with him and his gangster friends. OOC said that neither he nor any Unionist would put a foot on Quarryvale".

"The statement that the Tribunal did not form any view as to the truth or otherwise of these allegations suggests that it has taken a certain view of facts which go to the core of these issues without apprising me of the view which it was taking or giving me any opportunity to make any submissions with regard thereto or indeed even apprising me of the material on which such views were based raises serious issues. Again, I note that the Tribunal has formed a view, benign to Mr. Gilmartin in a matter very important to the issues which it has to determine, without allowing me the opportunity of exploring the issue and its significance through cross-examination and without disclosing the reason for the view so formed. This demonstrates that the Tribunal at the private stage did what it is not entitled to do, namely, it formed a view as to the veracity and interpretation of Mr. Gilmartin's statements which then enabled it to conclude that a discrepancy was of no relevance. Furthermore the fact that it decided not to form any view as to the truth or otherwise of the allegations meant that I was deprived of the opportunity of demonstrating that the allegation was untrue. If I had had the opportunity and so demonstrated the falsity of the allegation, then clearly that would have been relevant to the Tribunal's consideration of the issue and Mr. Gilmartin's credibility."

"In this case we are concerned only with a very limited category of documents, and of those, only those parts relevant to the current module of the Tribunal. In my view in these circumstances there is no risk of bringing the kind of chaos to the business of the Tribunal that has been mentioned".

"... that the matter be remitted to the High Court to determine the question of what documents are to be made available to the applicant having regard to the nature of those documents - this Order not to operate to prevent the parties from agreeing to give or receive any such documents in the meantime."

"1. that the documents exhibited in the grounding affidavit of Susan Gilvarry sworn on the 15th day of April, 2005 be provided to the applicants herein by the respondents with the categories of redactions referred to at paragraphs 6 7 8 15 and 16 in the said affidavit and without the categories of redaction provided for in paragraphs 9 10 11 12 13 and 14 in the said affidavit.

O'Neill J. stated:

"I am satisfied that in order to vindicate the applicant's constitutional right as aforesaid, it is necessary that those who have the responsibility for defending the applicant's good name, i.e. his legal advisors and in particular counsel, should have access to this redacted material for the purpose of cross-examining the notice party.
...
I am satisfied therefore that the order of the 14th July, 2004, must of necessity, extend to material relevant to the issue of the notice parties credibility but not directly relevant to the factual allegations in modules Quarryvale I or II. I have reached that conclusion for the paramount reason of the necessity to vindicate the constitutional right of the applicant, to his good name.

I have come to the conclusion therefore that material redacted under categories 'D' and 'E' should be disclosed to the applicant's legal advisors.

It is appropriate in my view that the disclosure of this material should be subject to the kind of restriction that goes with the disclosure of material on discovery of documents in civil actions, namely, that the material can only be used for the purpose for which it is disclosed in the proceeding in question and for no other purpose. Accordingly therefore I would make an order restraining the applicant from using this material for any purpose other than the cross-examination of the notice party or for necessary enquiries related thereto."

"The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running."

"In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly intervene".

“Please note that in some instances the Members of the Tribunal have directed that words, paragraphs or pages of statements and of documents furnished to the Tribunal be removed or blanked out. This has been done where the text is not relevant to the Inquiry at hand.”


From this formulation it may be noted, firstly, that the withholding of documents was decided upon by the Members of the Tribunal and not (as apparently occurred in other modules) by counsel or other persons assisting them. Secondly, it may be noted that relevance “to the Inquiry at hand” is the sole criteria stated for the withholding of information. It appears that none of the criteria subsequently relied on were then in the mind of the Tribunal or, if they were, they were not then stated to the persons interested. The criterion quoted above was, accordingly, the sole criterion which could be in the minds of Mr. O’Callaghan or his counsel at the time when the oral hearings began. Not until the cross-examination referred to above, during which it was conceded that “there was a good possibility there were” inconsistent statements made by Mr. O’Callaghan in the possession of the Tribunal was there any hint that other considerations might apply.

“It is not a matter for Mr. Gilmartin to consent or not to consent to. It is a matter for the Tribunal to decide what documentation can be referred to.”

“Any significant or glaring inconsistency between information furnished to the Tribunal on a confidential basis and compared to that furnished by way of a narrative statement or indeed in oral evidence would be brought to the attention of the Tribunal, and that is the extent to which we would have any cause to consider information already given by the witness… the Tribunal would not conceal from interested parties information that would suggest that there is glaring inconsistency between an account given on a previous occasion privately to the Tribunal and one given publicly because that would clearly be wrong”. (Emphasis added)

“I left it to [a quite separate solicitor acting for him in 1989] to complete the contract and we omitted, he drew up the contract and it was totally one sided including the final payment being subject to planning and when the zoning came up for this site to go in for rezoning…”.


In 1998, almost five years before his public evidence to the Tribunal, Mr. Gilmartin had attended a meeting in Luton, England, with counsel for the Tribunal. Mr. Gilmartin was accompanied by two solicitors from the firm of Eugene F. Collins, who were then his solicitors. On this occasion Mr. Gilmartin was noted as saying, on the topic of why, as he claimed, the contract did not represent what was actually agreed:
“… and through the negligence of [the solicitor mentioned above, who was acting for him in 1989] the contract which Mr. Gilmartin actually signed provided that £1.35 million should be paid in October, 1989, and a further £1.35 million on the 31st January, 1990.”


Accordingly, Mr. Gilmartin had made an allegation that the aspects of the contract which were unacceptable to him, because they were contrary to what had been agreed, were the result of falsification by Mr. O’Callaghan and Mr. Deane. But he had previously attributed the unsatisfactory aspects of the contract, not to falsification, but to negligence on the part of his then own solicitor. A more significant, glaring or gross inconsistency can hardly be imagined. It must be recalled that his allegations went so far as saying that the document produced was not the document he had signed, as a result of falsification. But the matter did not end there.

Mr. Gilmartin was specifically cross-examined on the question of why he had not made to the Tribunal in private session, by correspondence or otherwise, the falsification allegation he had made in public sitting. The observation of counsel for the Tribunal, quoted above, made it clear that he had not done so. But he claimed that he had in fact made the allegation:
“… I am reasonably certain that I told Mr. Hanratty and Mr. John Gallagher [both senior counsel to the Tribunal at the material time] that, and I told them that in Luton and I am reasonably sure I did”.


Later on the same day he said “I did tell the Tribunal, I am reasonably sure I did get, but I may have omitted it in the statement.”

It was then put to him that this allegation had surfaced for the first time in his evidence and he answered:
“No, I told the Tribunal officials the full, complete statement of how Mr. O’Callaghan held me to ransom twice and how he managed to do it with the help of his, well honourable solicitor”.


The effect of the cross-examination on this point was to allege that Mr. Gilmartin’s account was false, and was a recent invention. Under the Rules of Evidence which prevail in civil or criminal courts, a witness cross-examined along those lines can prove a previous consistent statement so as to rebut the cross-examiner’s allegation. The Tribunal is not bound by the ordinary Rules of Evidence, but it allowed Mr. Gilmartin to make this claim to have made a prior consistent statement and it would have been entitled to do so if what was said about the prior statement were true. I have to say that I simply cannot understand:
(a) How, having permitted this grave allegation to be publicly made it did not disclose the prior inconsistent statements of which it was affirmatively aware. I am far from holding that the duty to disclose material is limited only to material which the Tribunal itself regards as containing inconsistencies which are significant gross or glaring. But even by that criterion this is material that required to be disclosed.

(b) How the non-disclosure continued even after the witness had repeatedly stated that he had made the allegation previously to the Tribunal, thereby fortifying his credibility in the eyes of his listeners. This happened at a time when the Tribunal knew he had not done so, and that what he did say then was not consistent with what he said publicly in March, 2004.

(c) How the Tribunal continued to withhold this statement and asserted their entitlement to do so in the High Court and the Supreme Court. This latter point may have a particular relevance in view of the claim in the present proceedings that the Tribunal has made no final decision as to the significance of any material or the credibility of any witness.

The Tribunal says, quite accurately, that it took steps to obtain information from the applicants about this allegation. But that in no way explains the non-disclosure by them of the prior inconsistent statements: to find the Tribunal’s answer to that one must turn to its general defence in the present case, which will be considered below. I have no doubt that a failure to discover information of this kind in a civil action based on the same facts, or to disclose it in a criminal prosecution, would be gravely wrong. The Tribunal correctly says that it is not in the position of a party to litigation and denies that it is under any continuing obligation of disclosure or discovery as a party to such litigation would be. This contention is addressed below.

“I met [the councillor] in Buswells hotel one day in January, 1989 at 4.30pm. I met [a member of Dáil Éireann] the following day. On Wednesday 29th January, 1989, I met [the councillor]. O’Callaghan was standing at the bar with [a named architect]. I was told I had to meet councillors and this was arranged.”


Apart from the variation as to the date of the meeting, discussed below, this note does not mention a demand for £100,000 and does not mention the remark attributed to Mr. O’Callaghan which is a damning one. It also does not mention the third person, another Dáil Deputy, who was said in evidence to be in the company of Mr. O’Callaghan and the architect.

It transpires that the salient allegations, about being asked for money and Mr. O’Callaghan’s remark, were first made in a statement made by Mr. O’Callaghan on the 25th May, 2001, almost three years after his (apparently) first mention of the meeting, when he failed to mention these topics at all.

The significance of this for cross-examination, as to the facts and in relation to credibility, is manifest. Even the least apparently significant contradiction - that between the 28th December and the 28th January - is important. It is in the nature of things unlikely that the parties implicated by Mr. Gilmartin would be able to say where they had been on a date in January some fifteen years previous to Mr. Gilmartin’s evidence. But Christmas is a special time and people may have long standing habits as to where and with whom they spend the season. Indeed, there was cross-examination of various witnesses as to the likelihood of their having been at such a meeting over the Christmas period. Tribunal counsel attempted to suggest that the actual date might not be very significant:
“…it wouldn’t matter very much in one way whether it took place on the 28th December or 28th February - Do you follow?.”


But it is the other contradictions that are of salient importance.

In submissions on this point the Tribunal emphasised the possible inaccuracy or incompleteness of the notes of the meeting in 1998, at which Mr. Gilmartin gave an account of the Buswells Hotel affair which did not implicate Mr. O’Callaghan. They were, said Mr. Michael Collins S.C., “jottings”. They have, however, the appearance of a full record. I refrain from attaching the text of the note to this judgment only because of material about other parties in it. The Tribunal also submitted that the inconsistency as to the date was not of great importance because the fact of the meeting was not in dispute. This submission ignores the two salient allegations and, with respect, the date of the meeting is also important because if its inaccuracy could be demonstrated other things might follow. For example, Mr. Gilmartin had apparently given to the Tribunal a diary showing an appointment with the councillor on the 28th December, 1988: if this were false an obvious line of inquiry would be opened up. Tribunal counsel’s own question, quoted above, clearly shows uncertainty, at least, as to the December date.

But the present issue is not as to how a cross-examination based on full information might have ended, but as to the fact that, even by the Tribunal’s own criteria, here was a significant contradiction, It was never disclosed, despite a specific application for its disclosure, until after the Supreme Court hearing at which its disclosure (together with all the other withheld documents) was strongly resisted. I cannot understand why it was never disclosed prior to the order of this Court and in this regard would repeat, with the necessary alterations, the comments I have made above as to the non-disclosure of the prior inconsistent statements about the allegedly altered contract.
I would add that a reading of the transcript suggests that the Tribunal took this allegation seriously and devoted considerable time to it. In the course of this, an observation was made by one of the members of the Tribunal which is independently relied upon by the applicants here. I will not however interrupt the survey of the withheld documents to consider this allegation but will return to it briefly later in this judgment.

Finally, it should be recalled that, on the hearing before this Court of the appeal in the earlier judicial review proceedings, counsel for the Tribunal specifically said that in referring to “significant gross or glaring” inconsistencies, the Tribunal had in mind, inter alia, inconsistencies arising by omission. I understand that to be a failure to state a fact, subsequently alleged in evidence, at an earlier time when one might expect it to have been stated. It has not been contended that these allegations were in fact made to counsel at the 1998 meeting but for some reason not recorded. On other topics, however, counsel’s recollection of meetings have been put in evidence.

“However, at one stage he saw Albert Reynolds talking in an alcove to OOC [Owen O’Callaghan]. TG [Tom Gilmartin] had decided to leave and saw this on his way out. OOC called him back and asked where he was going. TG said he was fed up with him and his gangster friends. OOC said that neither he nor any Unionist would put a foot on Quarryvale”.


It will be clear that this inconsistency is of a kind which is the mirror image of that identified on the Buswells Hotel issue. There, the withheld document showed that Mr. O’Callaghan had first given an account of events which did not implicate Mr. O’Callaghan, and then proceeded to implicate him later on. Here, the withheld documentation shows that Mr. O’Callaghan had originally been placed in Leinster House, in the company of a very prominent politician, at a time when an outrageous demand had allegedly just been made of Mr. Gilmartin. The conversation which Mr. Gilmartin then reported between them speaks for itself, in the context of the other evidence he gave about what was said and done when he was in Leinster House.

This allegation simply dropped out of sight. A number of very prominent witnesses were called about the visit to Leinster House, including Mr. Reynolds himself. It was never suggested to any of them, or to Mr. O’Callaghan himself, that he had been present in Leinster House on the occasion in question.

This was the second allegation by Mr. Gilmartin that Mr. O’Callaghan had been nearby, but not physically present, when a demand for a large sum of money had been made by way of corrupt payment by another person. On each occasion, there was attributed to Mr. O’Callaghan a remark consistent with knowledge of what, allegedly, had just occurred. But for whatever reason, in this instance the allegation was simply not pursued, insofar as it related to Mr. O’Callaghan.

It is not possible to think of any reason for the non-pursuit of this allegation other than that the Tribunal did not consider it credible. The £5 million demand was clearly within its terms of reference and was regarded as a significant matter, as can be seen from the transcripts.

The fact that an allegation made by a witness is regarded as untrue, or incapable of being supported in evidence, is emphatically not a reason for denying to a person against whom the same witness is making other serious allegations, knowledge of the fact that he has also made a different, implausible or insupportable, allegation. If this allegation is untrue it plainly speaks to Mr. Gilmartin’s accuracy or credibility or both.

The Tribunal submits that it was of the view that the occasion referred to in Mr. Hanratty’s note of what Mr. Gilmartin said in June, 1999 related to a different meeting to that described as happening in Leinster House in February, 1989. This would indeed have been a remarkable reading of the memorandum in question and one which it is difficult to believe could have long survived having regard to the importance of the occasion upon which the £5 million was allegedly demanded. This importance is clearly established in the Tribunal’s records.

Mr. Noel Smyth, in his recorded interview with Mr. Gilmartin described the meeting after which the £5 million demand was alleged made as the “… famous meeting in the Dáil”. Mr. Gallagher SC, in opening the Quarryvale I Module on the 3rd March, 2004 just a few days before Mr. Gilmartin’s evidence, plainly and unambiguously said that the demand for £5 million pounds was allegedly made immediately after Mr. Gilmartin’s visit to the room where he met, or at least saw, a number of ministers. (Day 455). In Mr. Hanratty’s memorandum of a telephone conversation with Mr. Gilmartin of the 3rd June 1999, he recorded:
“TG then referred to the meeting in Dail Eireann to which he was brought by Liam Lawlor. He was adamant that this took place on the 1st February 1989. There is a record of it in Tom Gilmartin’s 1989 diary.”

Mr. Gallagher’s opening statement gave the background to the meeting as a conversation with Mr. Lawlor and said that Mr. Lawlor took him into the Dáil and then took him into the room where the ministers were.

Mr. Hanratty’s memorandum went on to describe Mr. Gilmartin’s attendance in the room where the ministers were and his conversation with one of those present and went on to say:
“After the meeting a number of other things happened which are described in previous memos. However, at one stage he saw Albert Reynolds talking in an alcove to OOC”.

The same memorandum then described his conversation with Mr. O’Callaghan as set out above.
I am driven to the conclusion that there is no scope whatever for ambiguity on the following propositions:
(a) Mr. Gilmartin said that the meeting after which the £5 million pounds demand was made occurred on the 1st February 1989.
(b) Mr. Gilmartin said that the demand was made after he had left the room in which there were several ministers with one of whom in particular he had a conversation.
(c) Mr. Gilmartin said that his Dáil encounter with Mr. O’Callaghan happened after the meeting with the Ministers just described and just after the €5 million demand, as he was leaving Leinster House.

I am therefore wholly at a loss to understand how any person acquainted with the detail of Mr. Gilmartin’s accounts could seriously have entertained the view that the alleged conversation with Mr. O’Callaghan in Leinster House was attributed by Mr. Gilmartin to any day other than the day on which the £5 million pound demand was made, which was the day on which he had been brought into see the Ministers and spoken to one of them, which was the day on which he had been brought to Dáil Éireann by Mr. Lawlor, which was the 1st February, 1989. Of course, anyone can become momentarily confused about detailed matters, even those with which he is perfectly familiar. But any such confusion could only have lasted a matter of moments. It could not have lasted for the days or weeks necessary for the confusion to be the basis, as alleged, of the refusal of the disclosure of the original account. Still less could it have been shared over so long a period by the number of people necessary for it to have been the basis for the non-disclosure - the three Tribunal members and their large legal team. I am driven to conclude that the account given, on a hearsay basis, of the reason for the non disclosure of the original document [by Ms. Susan Gilvarry in her affidavit of the 23rd January, 2006] is, on the balance of probabilities, quite inaccurate. I attribute this to lapse of time, which has clouded the Tribunal’s memory.

The reason why the making of an inconsistent false or dubious allegation requires to be disclosed to a person confronted with another allegation by the same accuser is quite obvious. Depending on the context, the making of a previous false or inconsistent allegation may indicate express malice against the victim of that allegation or, if the subject of the earlier allegation was a different person, may indicate a generalised malice or a tendency to lie or to fantasise. In Wall v. DPP [2005] IECCA 140, Ms. Wall had been sentenced to life imprisonment (and a Mr. McCabe to twelve years imprisonment) for rape. The conviction was set aside by consent, and later deemed to have been a miscarriage of justice under the terms of the Criminal Procedure Act, 1993. This happened for a number of reasons, including the failure to disclose that an alleged eye witness to the rape had herself made dubious allegations of rape against another person some years earlier. Subsequently, the witness admitted that the whole of her evidence was an invention, put forward because of a grievance felt against Ms. Wall who had been a teacher of the alleged victim and the witness. But, in the absence of information (the previous false allegation) which might have undermined the credibility of the witness, her false evidence had stood up to scrutiny at trial.

I wish to emphasise that the manifest utility of evidence of previous false or inconsistent allegations is a matter of ordinary experience, by no means confined to the context of a criminal (or indeed a civil) trial. It is a matter of natural justice and elementary fair procedures that a person accused of very serious things in a public forum be given all relevant information in the possession or at the disposal of the enquiring body for use in an attempt to vindicate himself. The Tribunal, to put it mildly, seemed unimpressed by this basic proposition.

“… that strong that they would have to open it again”.


Mr. Hanratty is also alleged to have said:

“…[T]hat they will prove fraud against O’Callaghan and the bank. He said that they will prove it. But I don’t know whether he is just saying it to get me talking”.


Mr. Smyth’s transcript of the same conversation emerges as follows:

Mr. Gilmartin:
“Hanratty - he was trying to tell me that my case was that strong that I would have to open it again.”

“I wouldn’t go against his view. I think that the answer is that if any revelations come out of this, it could well be something you would have to look at.”

Mr. Gilmartin:

“They said they would come forward against O’Callaghan and the bank. I don’t know if he is just trying to get me talking”.


This conversation with Mr. Hanratty is said to have taken place on the 20th May, 1998.

The significance of this conversation is very great. If it actually took place as described by Mr. Gilmartin then it plainly provides a motive for the latter to encourage and assist the Tribunal towards a finding of fraud against Mr. O’Callaghan so that the transactions which ended so badly from Mr. Gilmartin’s point of view might be reopened. But if the conversation did not take place as alleged, the significance of Mr. Gilmartin’s statement is at least as great. It means that Mr. Gilmartin had, in his own mind, attributed something to Mr. Hanratty S.C. which the latter had never said. He had, in other words, invented it.

In its opposition to the present application for judicial review the Tribunal have stated for the first time that it has been informed by Mr. Hanratty S.C. that at no time did he say any such thing. This denial was put on record on the 23rd January, 2006. Prior to that date, the Tribunal had dealt with this matter in a neutral fashion by saying that if Mr. Hanratty had said such a thing it was at a time when the Tribunal were attempting to secure Mr. Gilmartin’s evidence for the Tribunal: he lived abroad and could not be compelled to attend. The Tribunal did not assert the falsity of Mr. Gilmartin’s statement in this regard for a period of some eight years after it was made. Subsequent to the receipt of Mr. Gilmartin’s statement by the Tribunal, Mr. Hanratty had numerous interviews with Mr. Gilmartin and, judging by the record of these interviews no contradiction or correction of Mr. Gilmartin’s statement was made.

On the hearing of this appeal the Tribunal invited the Court to accept implicitly Mr. Hanratty’s denial and I would unhesitatingly do so. This has the consequence that it must be accepted that Mr. Gilmartin invented an important statement which in fact was never made at all. He invented it, presumably, because he wished to believe that the Tribunal would establish fraud against Mr. O’Callaghan thereby allowing him to reopen his long running dispute with the very person against whom he was making grave allegations.

As with the other documents discussed in this section of the judgment, the interview with Mr. Smyth was not disclosed until after the earlier judicial review proceedings. But even after disclosure the salient fact that what Mr. Gilmartin was said was false was not itself disclosed until January, 2006 and this disclosure occurred only in the context of the Tribunal’s defence to the present proceedings. In other words, if the present proceedings had not been taken Mr. O’Callaghan would have found himself back before the Tribunal without the knowledge that this statement was false.

The ability of Mr. Gilmartin to invent important conversations is of particular relevance because of a passage in the cross-examination which took place in March, 2004. Dealing with another allegation made without notice by Mr. Gilmartin, relating to the Lee Tunnel, counsel for Mr. O’Callaghan put it to him that his account of a meeting in December, 1988 was “a creature of your own imaginings”. To this Mr. Gilmartin made the following remarkable reply:
“No. No, there is things, which was in my imagination that does exist that I invented, and if you would like to know about them I will tell you. But they were creatures of my imagination, but this definitely isn’t. I don’t need to reduce myself to petty little gossip”.


The Tribunal’s submission on the issue of the alleged statement of Mr. Hanratty was to say, as outlined above, that it had been informed by Mr. Hanratty that he had said nothing of the kind. But this simply fails to address the salient point: Mr. Gilmartin’s account of the conversation is very important whether it is true or not. Indeed, it is probably more important on the basis that it is false: it is evidence, which the Tribunal must accept that Mr. Gilmartin is capable of invention, of hearing what he wants to hear and recalling that which he wants to recall.

“I am not aware of any documentation furnished at the Tribunal in relation to the matters presently being cross-examined by my friend (i.e. Mr. Sreenan S.C., counsel for Mr. O’Callaghan). If there is any such documentation, and I presume there is seeing as he is being so precise about the dates, it is subject to the same rules of the Tribunal; and again this is not something that has been furnished to the Tribunal and is, I think, comes within the four walls of the previous ruling… none of this material has been furnished at the Tribunal. And it is only the Tribunal who decides what materials will be circulated… the Tribunal should have been provided with an additional statement from Mr. O’Callaghan that deals with this matter that could be circulated… in other words there are no surprises here”.
(Emphasis added).


To this Mr. O’Callaghan’s counsel said:
“Chairman I am not referring to documentation but I think this objection is quite misconceived. Mr. Gilmartin was the person who introduced this piece of evidence, it wasn’t in his statement. Ms. Dillon has not provided us with an additional statement of Mr. Gilmartin’s evidence, it seems one rule applies to Mr. Gilmartin and one rule applies to those who wish to cross-examine; on a large number of occasions he introduced additional evidence, I am not referring to any document, if I was referring to a document I would have complied with the Tribunal’s rules - provided it to the Tribunal. I am simply putting facts to the witness”.


This is a very significant exchange which will be further discussed later in this judgement. But its relevance for the present purpose is that two counsel for the Tribunal, Ms. Gallagher and Ms. Dillon, asserted that “You [Mr. Gilmartin] haven’t told us anything about this before” and “I am not aware of any documentation furnished at the Tribunal in relation to the matters presently been cross-examined by my friend”. Both of these comments relate to the Lee Tunnel allegation.

In fact, based on the documentation disclosed as a result of the earlier judicial review, Mr. Gilmartin had on the 25th November, 1999, told Mr. Hanratty S.C. in the course of a telephone conversation:
“…[T]hat OO’C [Owen O’Callaghan] had more power than people realised. The original plan for the Cork tunnel was altered and rerouted so that it came out on land owned by OO’C. CJH was behind this change.”

Mr. Gilmartin is then recorded as saying “… that we can easily verify this.”

In the 4½ years between this conversation with Mr. Hanratty and Mr. Gilmartin’s oral evidence, the Tribunal, according to the affidavit of its solicitor “did not investigate that allegation at that time”.

This is bewildering. There is no assertion that the Tribunal investigated the allegation at any other time, and it certainly did not form part of the matters of which Mr. O’Callaghan was put on notice. It came within the time frame of the Quarryvale I module.
On the face of it, this is another example of the Tribunal’s practice of putting forward certain allegations while withholding the information that the accusing party has made different allegations which are, apparently, lacking in credibility. But in this case there is the added element that counsel for the Tribunal stated publicly that Mr. O’Callaghan had not told the Tribunal anything about this allegation, which is manifestly not true.

The reason given for this by the Tribunal is that “Counsel did not immediately realise” that the Cork tunnel and the Lee tunnel were the same thing. This, on any account, is an extraordinary confusion, and it is not said that it extended to the Tribunal itself, or to any of the other (numerous) Tribunal lawyers. It is not a piece of confusion that could have lasted any time at all since in fact there is but one tunnel that could conceivably be in question. It is now known as the Jack Lynch tunnel. But given that the confusion did apparently exist in the mind of counsel examining Mr. Gilmartin, it is extraordinary that in the very fraught discussions and questioning that ensued on the topic it was not corrected. This document too was withheld until after the first set of judicial review proceedings.

“… a notable omission, from a question asked by Mr. Gallagher as to who I told about the visit to the Dáil… I did inform Mary Harney at a - it was a house warming party in Dalkey and I told her about what was going on. I had just forgotten. That’s all, thank you”.

The Chairman then requested a supplementary statement about this allegation. It was not revealed that, at that time, the Tribunal were in possession of a note by Mr. John Gallagher S.C., dated the 3rd October, 2002. This records that he had received a telephone call from Mr. Hanratty S.C., who had left the Tribunal in 2001, to inform him that Mr. Gilmartin had said that he had met Mary Harney at a party hosted by a named person in Killiney “quite a few years ago” and that he had told Mary Harney at that time “what was going on”.

When this note was disclosed, as a result of the earlier judicial review proceedings, the name of the person in question was redacted. As a result of a further hearing before Mr. Justice O’Neill in July, 2005 this redaction, and another to be discussed below, was removed.

The Tribunal also had in its possession, but did not disclose, a memorandum of Mr. Hanratty of the 28th June, 2000. This recorded a telephone call from Mr. Gilmartin to Mr. Hanratty in which the former said that he had received certain information from a friend of his on another topic and that it was in his friend’s house that Mr. Gilmartin had met Mary Harney at a party. There was no allegation about having told her “what was going on”. When the redaction of the names was removed by O’Neill J. it transpired that in the earlier statement of the 28th June, 2000, in which there was no suggestion of any disclosure to Ms. Harney, the host of the party in question was named. In the later statement, where there was an allegation of having told Ms. Harney what was going on, the party was said to have been in Killiney and was given by another named person with the same initials. While one can easily understand the confusion of two similar names, the distinction is a vital one, because, as it transpired, the party at which he had actually met Ms. Harney happened before the alleged events in Leinster House.

This salient fact became clear to Mr. Gilmartin or his advisers in the period after he had made the allegation about having disclosed “what was going on” to Ms. Harney. On the 24th March, 2004, Mr. Gilmartin read a statement to the Tribunal as follows:
“In my evidence to the Tribunal, I told the Tribunal that I had told Ms. Harney about my visit to the Dáil. However, having reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and the Ministers in Dáil Éireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that evidence to the Tribunal, I may have been confused with another house warming party which also took place in Dalkey a year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms. Harney was not present at the second house warming.

Therefore, Ms. Harney was not one of the people that I told about a meeting with the then Taoiseach and the Ministers in the Dáil and about the demand made for £5 million.”.
(Emphasis added)

The Tribunal’s reaction to this very significant withdrawal of a very significant allegation was simply to say “Thank you very much”. No attempt was made to explore how so grave an allegation was made in unqualified terms, after time for thought, when it was in fact quite false.
In my judgment in the earlier judicial review, given at a time when the Court had not seen the withheld documents, I commented on the above chain of events as follows at pp 42 - 43:
“It is noteworthy that the notice party’s [Mr. Gilmartin] change of mind on this important matter was caused by the discovery by the notice party or his advisers of a fact in direct contradiction to the evidence he gave. This was that the party at which he had said he had met Ms. Harney actually took place prior to the date of the meeting which he alleged occurred in Dáil Éireann. It is also noteworthy that the notice party completed his statement and his initial evidence without mentioning Ms. Harney as amongst the people he had told of this truly dramatic alleged demand but he had subsequently become so convinced that he had in fact told her that he interrupted the proceedings on another day to make that point”.


Having now seen the withheld documentation, further questions arise. Why were the previous statements in the possession of the Tribunal not immediately disclosed at least when the allegation was publicly made? Furthermore, even after the allegation had been withdrawn, they continue to be withheld, thereby frustrating any detailed inquiry as to how precisely Mr. Gilmartin had come to convince himself that something had happened when in fact it had not. This is a question vital to his accuracy and credibility generally. Still further, when the documents were compelled to be disclosed in the previous judicial review the Tribunal redacted the names of the two individuals, thus foreclosing further inquiry on the point.

It is clear from the terms that Mr. Gilmartin’s retraction (… “Mary Harney was not one of the people that I told about a meeting with the then Taoiseach and the Ministers in the Dáil and about the demand made for £5 million”) that his earlier reference to “what was going on” related to the demand for £5 million.

Accordingly, I have difficulty in understanding the Tribunal’s submission on this topic, that there was no “explicit reference” to the “£5 million demand in the memoranda of the conversations with counsel”. It was plain from Mr. Gilmartin’s allegation that he was adding the name of Ms. Harney to those whom he had told about “the visit to the Dáil” where that demand was made. There was no other mention of any meetings with Ms. Harney in the disclosed documentation. The Tribunal also says that it was not clear to it whether one of the attendances by counsel recorded a statement by Mr. Gilmartin or an observation by counsel. This is impossible to understand as the earlier attendance states “TG said…” and the later one states “John Gilmartin says”. Since the memorandum is of an account given by one Tribunal lawyer to another of a conversation with Mr. Tom Gilmartin, it is clear that the Christian name is an error. It is clear, in my view, that none of the statements attributed to Mr. Gilmartin in those memoranda could reasonably be construed as observations by counsel.

This is quite clearly a significant contradiction which was undisclosed.

______________________________________________________

The Tribunal undoubtedly made a significant error in the period leading up to the public hearings of March, 2004 by misconceiving what the requirements of natural duty were in relation to making a person against whom Mr. Gilmartin made allegations aware of previous statements by him in the possession of the Tribunal. But this error was a bona fide one and was not unreasonable in the light of previous case law. In any event, and most significantly, it can now be rectified because, as a result of the previous judicial review proceedings Mr. Gilmartin now has precisely what he asked for in March, 2004: Mr. Gilmartin’s previous statements on the topic of the allegations he made. It is true that he had to have recourse to the High Court to get this information, and subsequently to defend the decision in his favour against the Tribunal’s appeal to the Supreme Court but that is irrelevant: the Tribunal made a bona fide error but can now sit with the appearance and reality of impartiality to conclude its business on Quarryvale 1 and address other relevant matters. Mr. Gilmartin can now conduct or have conducted any cross-examination he wishes based on the newly available material, and can make such submissions as he wishes about the facts.

The Tribunal, by virtue of a grave legal error, significantly misdirected itself as to its obligations in the period leading up to the public hearings of March, 2004. Specifically, it withheld material from the applicant based on this misconceived view of its obligations.
Now, after prolonged litigation, the applicants finally have available to them a considerable body of material which the Tribunal has previously suppressed. It is the nature of that material, and not any previous legal error which may have led to its being withheld, that has caused the applicants to entertain what they say is a reasonable apprehension of prejudgment on the part of the Tribunal. The applicants say that, by the criteria for disclosure which the Tribunal had itself declared that it would apply, the failure to disclose this material gives rise to an apprehension of prejudgment which is more than reasonable.

“It appears that in a later statement to the English police [the witness] may have qualified or revised this statement. The Tribunal has not yet been furnished with a copy of that statement.”

“… [the witness] agreed that she had made a statement to gardaí in June 2005 describing how her sister had broken her jaw and knocked her unconscious in a row over a mobile phone. In the statement she said she feared at one stage that her sister, who had been kicking her in the face, would kill her. When she regained consciousness, she was in hospital and was told her brain was swollen and her jaw broken. She had since withdrawn this statement.”

(“Guilty of fatal knife attack on Meath teenager”), Irish Times Thursday, 22 March, 2007, page 7.

“The doctrine seems to me to go further than that and to go as far as the principle which I am about to lay down. It seems to me that every document which relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case, or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences…”. (Emphasis in original)

“The definition by Brett L.J. in Compagnie Financiere du Pacifique v.Peruvian Guano Co. (1882) 11 QBD 55 at p. 63, remains the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought”..

“The principle [of Brett L.J.’s ‘train of inquiry’] was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the plaintiff or defendant and which were required for purely speculative investigation…”.

“… the prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence which goes to either of these two things”.

“The prosecution must disclose to the defence any material of possible relevance to the guilt or innocence of the accused”.

“I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:

(1) To be relevant or possibly relevant to an issue in the case;

(2) To raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use;
(3) To hold out a real as opposed to fanciful prospect of providing a lead on evidence which goes to (1) or (2).

“… the test must be whether a reasonable jury or other Tribunal of Fact could regard it as tending to shake confidence in the reliability of the witness”.

“It is axiomatic that this category of evidence which must be disclosed includes any previous inconsistent statement made by the witness. Indeed, previous statements should be disclosed irrespective of whether or not they can be seen to be inconsistent.” (Emphasis added)

“Otherwise, the accused is precluded from confronting witnesses for the prosecution with inconsistencies in their evidence which only became manifest during the retrial. This is all the more so when the outcome of the prosecution is to a large extent dependent on whether or not the evidence of the alleged victim is accepted by the jury, or by the Court, as the case may be”.

“To withhold a transcript of the evidence given at the first trial from an accused person in such a case is tantamount to denying him or her the opportunity of exposing an unreliable witness for what he or she is, in that, in the absence of the capacity to compare evidence given at successive trials by the same witness (evidence which is hotly contested) the accused is in effect limited in his or her capacity to defend himself or herself, which offends all principles of justice as they are recognised in this jurisdiction”.

“There is no rational basis for distinguishing between a previous statement made by a witness in a trial and a previous statement made in some other context”.

“[E]very effort must be made by both parties but particularly the prosecution, to try to avoid a situation where there is no island of fact, and where bare assertion can be countered only by bare denial. This must be done first in questioning the complainant: everything he or she says must be recorded, whether it forms part of the eventual formal statement or not, and whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time, place or otherwise than they need to be, and any variation between an earlier and a later account must be fully noted and disclosed…”. (Emphasis added)

“I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different from the standard which was applied in the High Court, is the question as to whether a person in the position of the plaintiff, Mr. O’Neill, in this case who was a reasonable man, should apprehend that his chance of a fair and independent hearing of the question… does not exist by reason of the pre-judgement of the issues which are involved… by the members of the Board. That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description.”

“It is a fundamental and age old concept in common law that justice must manifestly and visibly be seen to be done. It is expressed now as constitutional justice. In cases such as this where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of pre-existing non-judicial position and actions, it would be contrary to constitutional justice to proceed with a trial”.
(Emphasis added)

“[Counsel for the licensee suggests] that the test to be applied was, would a reasonable person apprehend that there might be bias because of that relationship. Given the applicant’s very considerable stake involved in the decision in the case, having instructed her counsel to object to the relationship, I am satisfied that the Court possibly should have discontinued the matter and either got another judge to do it or take some step.” (Emphasis added)

“The requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be considered in the minds of those who come before the Tribunal or in the minds of the public that the Tribunal or a member or members of it may not bring to the resolution of the questions arising before the Tribunal fair and unprejudiced minds. … The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial… is not only supported by the balance of authority as it now stands but is correct in principle”. (Emphasis added)

“In my view there is clearly a distinction to be drawn between the existence of factors external or extraneous to
the decision making process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. Obviously factors relevant to the decision may affect it but the decision must be arrived at fairly.” (Emphasis added)

“There is a duty upon the decision makers to carry out the process leading to the decision in a particular way. Not to do so may make the process unfair or otherwise invalidated, but that is not bias”.

“Insofar as bias may be found to exist or to have existed, it will always predate the actual decision of contemplated decision. Bias does not come into existence in the course of a hearing. It may become apparent in the course of a hearing and in that way alert a party to the possibility of bias so as to enable such a party to establish facts which show that the attitude adopted by the decision maker in the course of the hearing was one which might have been expected having regard to those facts. The essence of bias then is the perception… once all the facts are known that the particular decision maker could never give or have given a decision in relation to that particular issue uninfluenced by the particular relationship, interest or attitude. Obviously, if it is perceived that it may influence a decision yet to be given, it must exist at that stage.”

“The preliminary inquiries are, in the Tribunal’s view, part of the decision making process of the Tribunal. Any errors in that process are such as can be cured.”

“Insofar as the documents which have now been circulated are concerned, the Tribunal was, at the time of its consideration of the documents prior to the first-named applicants judicial review, of the view that same did not reveal any significant or glaring inconsistencies as between previous statements of Mr. Gilmartin and his evidence before the Tribunal which were relevant to that particular phase. The Tribunal has not made any final determination in this regard and will consider any further evidence (by way of cross-examination or otherwise) or submissions which the applicants, or any other party, wish to put before the Tribunal in relation to whether the documents contain such inconsistencies or otherwise are of relevance to the Tribunal’s discharge of its functions. Further, the documents do not evidence any, or any serious disparity and treatment by the Tribunal as between the applicants and Mr. Gilmartin or as between the applicants and any other party appearing before the Tribunal.”

“… likely to have resulted in cross-examination based on minor discrepancies between the sworn testimony of witnesses and communications made by them to the Tribunal”. (Emphasis added)

“It is not a dominant doctrine. It could never defeat a real fear and a real reasonable fear of bias or injustice, but it is a consideration in relation to the question of the entire board being prohibited…”.

“… if [the Board] were actuated by bias, apparent or real, then the decision would still have to be made by them. Therefore, on the doctrine of necessity, which is accepted, there could have been no meaningful independent panel and the decision would have to stand because the decision has to be made by the Board and could not be delegated to the independent panel”.

“The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issues involving your clients.”

“The Inquiry’s roles of investigation and education of the public are of great importance. Yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for careful balancing was recognised by De Cary JA when he stated at paragraph 2 ‘the search for truth does not excuse the violation of the rights of individuals being investigated’. This means that no matter how important the work of an Inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.”

“The essential purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of urgent public importance which it is to inquire into…”.

“This evidence featured a number of strongly worded and personalised attacks on Mr. O’Callaghan, whom he described as a crook and a blackmailer and as someone who had held him up to ransom. His more specific allegations, of which he had apparently given no notice, may be summarised as follows:

Mr. Gilmartin was shown by counsel for the tribunal the agreement into which he had entered with Mr. O’Callaghan on the 31st January, 1989. This was signed by him and his signature had been witnessed by his solicitor. His previous complaint had been that the agreement did not contain all the terms actually agreed between himself and Mr. O’Callaghan, and on which they had shaken hands. In evidence, however, he said that the agreement which he was shown was not the agreement which he signed and that it had been falsified by Mr. O’Callaghan and his (Mr. O’Callaghan’s) solicitor so as to alter its terms.
That at their first meeting of the 7th December, 1988, Mr. O’Callaghan told him that he had just come from a dinner for the launch of the Lee tunnel and that he had had the line of the tunnel altered so as to suit a named site that he owned.
That one of the reasons why he had paid £50,000 to the then Minister for the Environment by way of a cheque in which he had left the payee blank was for the purposes of stopping the activities of Mr. O’Callaghan. He had not mentioned Mr. O’Callaghan in this connection in the redacted form of his statement, but had named others.
That Mr. O’Callaghan had given false information to the British Revenue which had resulted in Mr. Gilmartin being declared bankrupt.
That Mr. O’Callaghan had bribed a named councillor.
That the purchase by Mr. O’Callaghan of Mr. Gilmartin’s interests in a site at Balgaddy was the result of Mr. O’Callaghan holding him to ransom.
That Mr. O’Callaghan, with the connivance of a bank, stole Mr. Gilmartin’s money and used it to bribe councillors to block rezoning for the Quarryvale scheme.
That Mr. O’Callaghan had encouraged Mr. Gilmartin not to cooperate with the garda investigation into his allegations.”

“A full and unhampered right to cross-examine a person who makes grave allegations against another at a tribunal of inquiry is an important constitutional right. It cannot be impinged upon without a firm basis in law, which must itself be consistent with the Constitution. The only basis suggested here is a unilateral policy of confidentiality adopted by the tribunal, never communicated to Mr. O’Callaghan and doubtfully, if at all, communicated to Mr. Gilmartin. The tribunal’s status as master of its own procedures does not extend to interference with so vital a constitutional right: such interference could not possibly be described as procedural in nature.”

“A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient execution of its work requires that there be such a policy. A literal application of court procedures will often not be either necessary, desirable or efficient. A tribunal is also perfectly entitled to conduct separate hearings of separate modules and to try as far as possible to discipline counsel and the witnesses so that the evidence at any given time is confined to the evidence relevant to that module.

This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested and which may not be available to a court of law, it is always bound to ensure, as far as possible, compliance with constitutional rights and obligations and that, of course, includes the vindication of a person’s good name. For all the reasons put forward by Hardiman J. much more eloquently than I would be able to do, it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against Mr. O’Callaghan and of which he had no prior notice, be duly produced. The tribunal relies on an understanding of confidentiality. It is not suggested, however, that the confidentiality was absolute nor could it have been. The tribunal could not possibly ensure absolute confidentiality relating to information, which, for instance, might turn out to be highly relevant to the very matters that it was investigating. Any such confidentiality must necessarily be limited to information, in the event found not to be necessary to be used at an oral hearing. If, however, the information becomes absolutely essential for the purposes of a cross-examination pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can be judicially reviewed for doing so.

The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In particular having regard to the clear views of this court in In re Haughey it would not seem to me to be necessary to consider to what extent the numerous cases and statutes relating to the law of evidence for the purposes of the courts must necessarily be applied to every cross-examination in a tribunal.”

“In the light of the foregoing our clients cannot have any faith in the fairness of the process or procedures of the tribunal. They are firmly of the view (and we have so advised) that this tribunal cannot fairly adjudicate upon the allegations of impropriety against them. In particular, our clients reasonably suspect bias and partiality on the part of the tribunal in their treatment of Mr Gilmartin on the one hand and our clients on the other. In those circumstances, we are writing to invite you now to confirm that in the light of the foregoing the tribunal will desist from further investigating or making any findings in relation to matters affecting our clients or any of them.”

“The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issues involving your clients. Notwithstanding this belief on the part of the Tribunal, your clients may rest assured that the Members of the Tribunal will continue to act fairly and impartially in carrying out the tasks given them by the Oireachtas and that they will reach such conclusion as may be open to them only on the basis of the evidence heard at public sessions with which all affected parties will have been afforded the opportunity of exercising their constitutional rights.”

“The Applicants cannot have and do not have any faith in the fairness of the process or procedures of the Tribunal. They are of the view and are entitled to have the view that the Tribunal cannot fairly adjudicate upon allegations of impropriety against them. The Applicants reasonably suspect bias and partiality on the part of the Tribunal in the treatment of Tom Gilmartin on the one hand and of the Applicants on the other hand. Alternatively there is a real likelihood of bias or partiality.”

“The Tribunal, if it did form a preliminary view as to the veracity of what Mr Gilmartin was saying at the time or would say in the future were, in my judgment, entitled to consider that he would be telling people the truth. They were in my judgment not unreasonably entitled to assume that the man did not set out to deliberately perpetrate falsehoods.”

“It is inappropriate for the court to examine in minute detail a large number of issues which relate to factual events or to carry out a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in relation to particular documents or events.”

“This was not a case of seeking to challenge the merits of a decision by placing it under the microscope. Rather this was a fundamental challenge to the entire manner in which the Tribunal had treated the appellants as well as a claim of objective bias. It is the learned judge who erred in placing some incidents complained of under the microscope separately instead of stepping back and looking at the pattern of behaviour of the Tribunal which was disclosed. The pattern of behaviour by the Tribunal loomed over the whole horizon and did not need a microscope or for that matter a telescope to see it. It was there in front of everyone.” (emphasis in the original).

"I am satisfied that the proper standard to be applied by this Court………is the question of whether a person in the position of the plaintiff, Mr O’Neill, in this case who is a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of pre-judgment of the issues which are involved in that by members of the board.”

“What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge ……”

"But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the 'lay observer' Vakauta (1989) 167 C.L.R., at pp. 573 to 574, the 'fair-minded observer' Livesey (1983) 151 C.L.R. 300; Laws (1990) 170 C.L.R. 87, the 'fair-minded, informed lay observer' ibid., at p. 92, 'fair-minded people' Watson (1976) 136 C.L.R. at p. 263, the 'reasonable or fair-minded observer' Vakauta (1989) 167 C.L.R. at p. 585, the 'parties or the public' Ex parte Hoyts Corporation Pty. Ltd. (1994) 68 A.L.J.R. at p. 182; 119 A.L.R. at p. 210, and the 'reasonable person' Vakauta (1989) 167 C.L.R. at p. 576, abound in the decisions of this Court and other courts in this country…"

"in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand."

“The submissions in relation to the test to be applied roved worldwide. However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test - it invokes the apprehension of the reasonable person.” (emphasis added)

“But the difficulty of proving actual bias remains and we are, of course, concerned with a case in which the trial judge found that there was no actual bias. The authorities, however, lend no support whatever to the proposition which found favour with the trial judge in the present case, i.e. that the court is entitled to infer from the establishment of a number of errors in the impugned decision, or the process leading to the decision, that the decision itself was vitiated by the existence of bias which can be equated to objective bias.

It is not surprising that no authority has been cited in support of such a proposition because it is entirely contrary to principle. In the case of a decision by a court, a litigant who succeeds in identifying errors in a judgment is entitled to feel aggrieved, unless they are of little consequence to the result. The law affords him an ample remedy in almost every case by way of appeal to a superior court. In the case of decisions of the High Court, that remedy is to some extent qualified by the reluctance of this court to interfere with findings of fact where they are based on credible evidence, but no one has ever suggested that either at this level, or at any other appellate level, the courts are in the position that the normal appellate machinery is not capable of remedying injustice brought about by clear errors of fact or law on the part of the court concerned and that, in order to achieve justice in such cases, it is necessary to have recourse to so strained and artificial a concept of bias.”

“However, it seems to me that the essence of bias is the existence of some factor as already explained that constitutes a set of circumstances from which a reasonable observer might conclude that there was a real possibility that such factor would cause the decision maker to seek a particular decision or which might inhibit him or her from making his or her decision impartially and independently without regard to such factor. As I have already indicated, this factor must predate the decision complained of or the contemplated hearing.”

“To condemn as biased the decision of a judge or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly, that in relation to the particular decision the external factor operated so as to tilt the judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must be proved as a fact on the balance of probabilities: the operative effect of an impermissible factor (where it does exist) is presumed.”

“……no authority was cited in support of the proposition that bias could be inferred from a series of adverse findings in a particular case.”

“In my view the fallacy of these conclusion results from the fact that the learned judge used her findings, and the inferences which a reasonable person might draw therefrom, for two different purposes. First, to establish the existence of a unacceptable extraneous factor with the potential for influencing the decision of the evaluators and, secondly, the suspicion, belief or perception that such extraneous factors did, or might have, become operative in the instant case. The standard of proof of the existence of bias on the one hand, and its operation on the other, are very different. It is possible to suspect the unconscious operation of an extraneous factor but that does not prove its existence. The plaintiff sought to prove the existence of an extraneous factor and its operation by the same evidence. In my view the evidence was wholly inadequate to prove the fact of bias - I hesitate to use the words objective fact of bias - and without that the reasonable observer could not prove its conscious or unconscious operation.”

“I have deliberately listed in full the instances given by Lord Bingham of situations where normally bias would not be held to exist on the one hand and situations where bias would be held to exist on the other hand. I have done this with a view to demonstrating the type of situations which are envisaged. In every single instance Lord Bingham is talking about some outside fact which could conceivably be seen influencing the judge. There is not the slightest suggestion that bias could ever be established as a consequence simply of the decisions of the judge.”

“Moreover, for objective bias to be established it must be shown that there existed some external factor extraneous to the decision making process which could give rise to a reasonable apprehension that the decision maker might have been biased. Furthermore, this external factor must exist prior to the decision made.”

“The action of the arbitrator in going upon the lands the subject-matter of the arbitration might, in the view of this Court, reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. The fundamental rule that it is necessary not alone that justice be done, but that it must seem to be done was broken and in our opinion the award cannot be allowed to stand.”

“It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical witnesses in his or her court………That does not mean, however, that the judge is disqualified from hearing the particular action or any other action involving the medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses………are likely to be less sceptical of a plaintiff’s claims……… If it were so infringed, the administration of justice in personal injuries cases would be all but impossible………

Nor will that requirement of the reality and the appearance of impartial justice be infringed if a judge with preconceived views ……disclose the existence of such views in the course of dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case………It seems to us that a trial judge who made necessary rulings but otherwise sat silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.”

“The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issues involving your clients.”