Neutral Citation Number [2006] IEHC
75
THE HIGH
COURT
Record
No.[2004/4910P]
Between:
JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH
Plaintiffs
MURPHY STRUCTURAL
ENGINEERS LTD
-and-
FEARGUS
FLOOD (THE FORMER SOLE MEMBER OF Defendants
THE TRIBUNAL OF INQUIRY INTO
CERTAIN
PLANNING MATTERS AND
PAYMENTS), ALAN
MAHON, MARY
FAHERTY AND GERALD KEYS (THE
MEMBERS OF THE TRIBUNAL OF INQUIRY
INTO
CERTAIN PLANNING MATTERS AND
PAYMENTS),
IRELAND AND THE
ATTORNEY GENERAL
AND
Between:
Record No. 2005/100JR
JOSEPH
MURPHY, FRANK REYNOLDS AND JOSEPH Applicants
MURPHY STRUCTURAL ENGINEERS LTD.
-and-
JUDGE
ALAN MAHON (THE CHAIRMAN OF THE Respondents
TRIBUNAL OF INQUIRY INTO CERTAIN
PLANNING MATTERS AND PAYMENTS),
IRELAND
AND THE ATTORNEY
GENERAL
MR. JUSTICE
T.C. SMYTH DELIVERED JUDGEMENT, AS
FOLLOWS, ON TUESDAY 14TH FEBRUARY
2006
The Tribunal and its
Reports.
A Tribunal of Inquiry
into Certain Planning Matters
and
Payments ('the Planning Tribunal') was
established by Ministerial Order, on the 4th
November
1997, to enquire
urgently into the matters of urgent
public importance set forth in its Terms
of
Reference. To the extent
necessary for the
determination
of these proceedings, the following
extracts are in point:-
"That Dáil Eireann resolves:
A. That it is expedient that a Tribunal
be
established under the
Tribunals of Inquiry (Evidence)
Act, 1921, as adapted by or under
subsequent
enactments and the
Tribunals of Inquiry (Evidence)
(Amendment) Act, 1979, to enquire urgently into
and
report to the Clerk of the
Dáil and make such
findings and
recommendations as it see fit, in
relation to the following definite matters of
urgent
public
importance."
These are indicated
and enumerated and (inter alia)
include -
"4(a)
The
identity of all recipients of
payments made to .... members of
....
the Oireachtas, past or
present, or
officials of a Dublin
local
authority or other public
official by
Mr. Gogarty or Mr.
Bailey or a
connected person or
company within the
meaning of the
Ethics in Public Office
Act,
1995, from 20th June 1985 to date,
and the circumstances,
considerations
and motives
relative to any such
payment."
"B(v) to report on an interim basis not later
than
one month from the date of
the establishment of the
Tribunal
or the tenth day of any oral hearing,
whichever shall first occur, to the Clerk of
the
Dáil" on specific
matters.
"C. And that the person
or persons selected to
conduct
the Inquiry should be informed that it is
the desire of the House that -
(a) the Inquiry be completed in as economical
a
manner as possible and at the
earliest date
consistent with a
fair examination of the
matters
referred to it, and, in respect of the
matters referred to in paragraphs 1 to
4
above, if possible, not later
than the 31st
December, 1997,
and
(b) all costs incurred by
reason of the failure of
individuals to cooperate fully
and
expeditiously with the
Inquiry should, so far
as is
consistent with the interests of justice,
be borne by these individuals."
On 26th February 1998, the Sole Member or
Chairman
(hereinafter generally
referred to as 'the Tribunal'
which expression shall be indicative by its use
and
context) availing of the
provisions of B(v) ante
sought/requested the Oireachtas to amend the
original
Terms of Reference. By
instrument dated 15th July
1998,
the Minister for the Environment and Local
Government issued Amended Terms of Reference to
the
Tribunal. While the amended
Terms of Reference are
more
extensive and direct enquiry into any
substantial payments directly or indirectly to
a
named politician (Mr. Raphael
Burke) and expressly provide for interim reports the desire of the
House
as expressed in paragraph
(F) is substantially the
same as
that contained in paragraph (C) of the
original Terms of Reference.
When the Tribunal came to make interim reports
and in
particular its Second
Interim Report published 26th
September 2002 (hereinafter referred to as the
2nd
Report) it incorporated as
Appendices A and B the
original
and amended Terms of Reference. I am
satisfied as a matter of probability that the
clear
provisions of the original
and amended Terms of
Reference
must be taken as something that would have
been known to the Applicants, who gave evidence
to
the Tribunal and who had the
benefit of legal advice
and were
granted representation and availed of the
right to be represented before the
Tribunal.
When the Tribunal
issued the 2nd Report, to which
there is a preface, which is a form of
explanation of its subject, purpose, scope and method of conduct,
it
(inter alia) states as
follows:-
"All citizens have
a duty to cooperate
and assist a
Tribunal and to tell the
truth
when summoned to appear at a
public hearing. It is with
considerable regret that I have
concluded that I must report, as one
of
my findings, that certain
parties who
appeared before me
chose not to
cooperate with the
Tribunal in its
task, and,
further, having been duly
sworn
did not to tell the truth.
The
extent to which their actions may
have involved them in breaches of
the
criminal law is a matter upon
which the
Director of Public
Prosecutions has
absolute and
exclusive jurisdiction. I
have
decided to forward a copy of my
report to him to take such steps,
and
to do with it, what he, in
his absolute
discretion,
considers appropriate.
I am very
mindful of the significant
costs
which have been incurred in
conducting the Inquiry to date. I
have
endeavoured to conduct the
Inquiry in
as economical a
fashion as possible,
having
regard to the rights of those
appearing before the Tribunal and
my
obligations to the
Oireachtas."
[Chapter 17 of
the 2nd Report itself set out at
paragraphs 17.01, 17.02 and 17.03 what I believe
to
be the true legal obligations
under the Acts on all
parties and
persons required to provide information
to the Tribunal].
The Introduction makes it clear that the
Tribunal
considered it necessary
to do so for a number of
reasons
(inter alia) -
"1. The Tribunal
has heard sufficient
evidence in
public to enable to
pronounce
with finality upon
certain
payments made to
Mr.
Burke."
The report does not
record that it is pronouncing
with finality on anything else (e.g. under 4(a)
of
either the original or amended
Terms of Reference)
notwithstanding that evidence had been heard in
"the
Gogarty Module" regarding
payments to Mr. George
Redmond,
in that regard Chapter 17, entitled
"Co-Operation with the Tribunal" it records in
detail
the sentiments and
approach to its task enunciated in
the preface, and also its
findings.
At paragraph 17-04,
it is recorded:
"In its review of
the evidence
proffered to the
Tribunal in the
modules in which
the Tribunal has heard
evidence
to date, the Tribunal has
concluded that the following
persons
and corporate entities
have hindered,
obstructed or not
cooperated with the
Tribunal to
the extent set out
hereunder. The
findings made against
Mr. Joseph
Murphy Snr. and Mr. Joseph
Murphy
Jnr. apply pari passu to the
companies within the Murphy Group
to
whom legal representation was
granted
including Joseph Murphy
Structural
Engineers Ltd.....
"
Mr. Joseph Murphy Snr.,
against whom certain
findings
were made, died in August 2000.
The relevant findings in "The Gogarty Module"
are:-
"Mr. Joseph Murphy
Jnr.
17-16. The Tribunal is
satisfied that
Mr. Joseph Murphy
Jnr. obstructed and
hindered the
Tribunal by:
(a) Failing to give
a truthful account
of the
circumstances in which he came
to
attend a meeting at the home of
Mr. Burke in June 1989, at which
he
handed to Mr. Burke a sum of
not less
than
£30,000.
(b) Failing to give a
truthful account
of his dealings
with Mr. Michael Bailey
with
regard to the participation
proposal, in which it was
envisaged
that Mr. Michael Bailey
would receive
50% of the value of
the Murphys' North
Dublin lands
in return for procuring
planning
permission and building
bye-law
approval in respect thereof.
(c)
Giving a false account of the
involvement of Mr. James Gogarty in
the
sale of the Murphy lands and
the role
played by him in
connection with the
payment of
JMSE monies to Mr. Burke.
(d)
Giving a false account of his
dealings with Mr. Michael Bailey
subsequent to the publication of
the
Sunday Business Post
articles.
(e) Falsely
constructing an alibi which
was
untrue.
Mr. Frank
Reynolds
17-18. The Tribunal is
satisfied that
Mr. Frank Reynolds
obstructed and
hindered the
Tribunal by:-
(a) failing to give
a truthful account
of his
involvement in the assembly of
funds which were paid to Mr. Burke
by
JMSE.
(b) Falsely ascribing to Mr. Gogarty
a
role in the payment of monies
to
Mr. Burke which he knew to be
untrue.
(c) Failing to give a
truthful account
of his dealings
with Mr. Michael Bailey
(d)
Failing to give a truthful account
of the steps taken by him subsequent
to
the publication of the
Gogarty
allegations in the Sunday
Business Post
editions of the
30th March and the 6th
April
1996.
(e) Colluding with Mr.
Joseph Murphy
Snr., Mr. Joseph
Murphy Jnr. and
Mr. Roger Copsey
to present a false
account to the
Tribunal of the role
played by
Mr. James Gogarty in the
payment
of JMSE monies to Mr. Ray
Burke."
A
Third Interim Report dated 30th September 2002
(hereinafter referred to as the "3rd Report") was
not
published until 21st January
2004 because as the
Tribunal
noted, the information in the public media
as of September 2002 was that Mr. George Redmond
was
awaiting trial in the Dublin
Circuit Criminal Court
on charges
of corruption arising from the performance
of his duties as Assistant City and County
Manager
for Dublin. The 3rd
Report completed the findings
upon "the Gogarty Module" of evidence referred to
in
the 2nd
Report.
Chapter 2 of the 3rd
Report deals with the Forrest
Road Lands and the Tribunal drew a conclusion
from
the fact that radically
different accounts of events
were
given by the witnesses before it. It expressed
its conclusion thus -
"2.41. The Tribunal concluded that
the
conflicts which are apparent
from
consideration of the
evidence of the
parties could not
be explained on the
basis that
they were innocent failures
of
recollection, mistakes or
misinterpretation of the true
facts.
The Tribunal concluded
that the
divergences in the
accounts given by
the parties
could only be explained on
the
basis that some party, or parties,
had deliberately set out to mislead
the
Tribunal. It was clear from
the
disparities in the accounts
given by
the various witnesses
that some party,
or parties, gave
false evidence to the
Tribunal as
to the true circumstances
surrounding the service charges
and
levies payable in respect of
the
Forrest Road planning
permission and as
to the role
which Mr. George Redmond
played
in ensuring that the 1983
charges
applied, notwithstanding the
expiry of the planning permission
on
the 21st June
1988."
Chapter 8 of this
report dealt with co-operation with
the Tribunal, thus-
"8-03. The Tribunal is satisfied
that
Mr. Joseph Murphy Jnr.
hindered and
obstructed the
Tribunal by:
(a) Failing to give
a truthful account
of the
circumstances in which he came
to
pay Mr. George Redmond a sum of not
less than £12,246 for devising
the
strategy that resulted in the
Forrest
Road services charges and
levies being
fixed at their 1983
level in respect of
any similar
development taking place
within
two years of the 21st June 1988.
(b) Failing to give a truthful
account
of the circumstances in
which he came
to pay Mr. George
Redmond £15,000 at
the Clontarf
Castle Hotel in July 1989.
8-05.
The Tribunal is satisfied that
Mr. Frank Reynolds hindered and
obstructed the Tribunal by:-
(a) Failing to acknowledge that
he
attended a meeting at the
Clontarf
Castle Hotel where a
payment of £15,000
was made to
Mr. George Redmond by
Mr. Joseph
Murphy Jnr. in his presence
and
in the presence of Mr. Michael
Bailey and Mr. James
Gogarty."
The foregoing
regretfully extensive quotations from
the reports of the Tribunal represent the
essential
historical basis upon
which the proceedings were
contested. It was common case that the Court had
no
appellate function, that the
findings of the
Tribunal,
particularly as to obstruction and
hindrance, were the determinations of the
Tribunal,
although not accepted
by the Applicants.
The Courts and
Legal Proceedings.
Notwithstanding that the 2nd Report of the
Tribunal,
published on 26th
September 2002 contained the
several findings of the obstruction and
hindrance
hereinbefore recited
and was clearly final in its
terms in "The Gogarty Module" as to the payments
to
Mr. Burke, the Applicants
issued no legal challenge
by way
of judicial review or otherwise to the conduct
or findings of the Tribunal.
When the 3rd Report of the Tribunal was published
on
21st January 2004 with
specifically relevant like
findings as to obstruction and hindrance as in
the
2nd Report, save as to amount
of payment and the
identity of
the payee in "The Gogarty Module"
proceedings (in the form of a Plenary Summons)
did
not issue until 20th April
2004 (i.e. one day prior
to the
expiry of three month time limit for certain
reliefs under O.84 of the Rules of the
Superior
Courts for judicial
review).
The Tribunal as
Defendants in the plenary proceedings
brought a motion dated 22nd December 2004;
following
a hearing before Kelly
J. on 24th January 2005, he
ordered that a preliminary issue be tried on
four
specific questions centred
on the issue of delay.
The
Plaintiff's response was to file in the Central
Office of the High Court on 2nd February 2005
in
judicial review proceedings, a
statement required to
ground an
application for judicial review dated 2nd
February 2005. Mr. Murphy Jnr swore an affidavit
on
27th January 2005 and a
supplemental affidavit on
25th
February 2005. The Notice of Motion was
returnable for 7th March 2005; upon a hearing
of
which motion Kelly J. made an
Order on 14th March
2005, on the
undertaking of the Tribunal not to hear
any issue in respect of costs (i.e. "costs
against",
for there had been a
ruling on a "costs for"
application on 9th November 2004 which had
proceeded
over the period 9th May
2003 (i.e. after publication
of
the 2nd Report) to November 2004, and that there
would be no order on the judicial review
application
but liberty to apply
and the parties were given leave
to amend their respective pleadings. There was
no
appeal from either order of
24th January 2005 or 14th
March
2005 of Kelly J. The decision of the Supreme Court
in
BTF -v- DPP
(unreported, delivered 3rd June 2005)
governed the outcome of the application
for
directions and fixing of the
date for the hearing of
the
cases. It was ordered that issue of delay (and
other related issues the subject of the Order of
24th
January 2005) be dealt with
as part of the full
hearing of
the proceedings rather than as a
preliminary issue.
The plenary proceedings sought a range of
declaratory
relief which may be
broadly characterised as:
I.
Challenges to the constitutionality of
section 6(1) of the Act of 1979 as substituted
by
section 3(1) of the Amendment
Act of 1997.
II. Seeking to
have the findings of obstruction and
hindrance of the Tribunal's reports (2nd and
3rd)
declared null and void of no
effect and ultra vires
the powers
of the Tribunal which purported to
administer justice which was a function for
the
Courts.
III. That fair procedures were not observed in
a
variety of
ways.
IV. That in awarding
costs, the Tribunal ought not
to
have taken into account the finding of facts or
conduct or alleged conduct that led to the
setting up
of the Tribunal, but
rather confine itself to the
conduct of Applicants at or before the
Tribunal.
The judicial review
proceedings began in February
2005 and they seek:
I. An Order of Certiorari to quash the decision
or
order of the Tribunal of 9th
November 2004 refusing
the
applicants their costs "before" the Tribunal and
an Order of Mandamus to reconsider the
costs
applications.
II. A declaration that the Tribunals of
Inquiry
(Evidence)(Amendment)
Act, 2004 and in particular
section 2(1) thereof insofar as it permits
and/or
requires the Tribunal to
rely on and/or have regard
to the
substantive findings of the Tribunal and/or
its findings of obstruction and hindrance and to
use
same as a basis for refusing
the applications for
costs before
the Tribunal is invalid having regard to
the provisions of the
Constitution.
III. Other
reliefs of wide-ranging intended effect
seek to challenge the constitutionality of the
entire
Tribunals of Inquiry
(Evidence) Acts 1921-2004.
IV. Orders of intended future effect are sought
in
reliefs (e) and
(j).
In my judgment it is of
importance to note that
in "the
grounds" advanced for relief is paragraph (c)
not only had the plenary proceedings
expressly
referred to, but the
issues upon which the Applicants
seek relief are set out in extenso. The
principal
affidavit grounding the
judicial review proceedings
is
that of Mr. Joseph Murphy Jnr which as part of
exhibit JM3 contains the outline written
submissions
of the Applicants for
costs which expressly at
section
C (9) states:
"For the avoidance
of doubt, the
Applicants repeat
the arguments
contained in the
Statement of Claim in
the said
proceedings (i.e. the plenary
proceedings) and in particular
paragraph 16 to 28 thereof, and
thereby
request the Tribunal
treat the said
arguments as
having been incorporated
into the
present outline written
submission."
(p51 of booklet for Judicial
Review)
The second or
supplementary affidavit in the judicial
review proceedings seeks to link both sets
of
proceedings by means of cross
reference (p113/4 of
booklet for
Judicial Review)
Reviewing
the proceedings at and before the Tribunal
as disclosed by the pleadings and
documentary
evidence disclosed
therewith and the oral evidence of
Mr. Joseph Murphy and the submissions at the
hearing
before me, I am satisfied
that the following issues
raised
on two sets of proceedings before the Court as
to
(a)
Constitutionality of statute and specific
statutory provisions other than the Tribunals
of
Inquiry (Evidence) (Amendment)
Act 2004.
(b) Findings as to
obstruction and hindrance of the
Tribunal as to:
(i) the vires of the Tribunal to make such
findings
in the context of
S(6)(1) of the Act of 1979 as
amended relied upon, and the non-acceptance of
the
Plaintiffs in this
regard.
(ii) whether such
constituted the purported
administration of justice and accordingly was
a
matter for the
Courts.
(c) The fairness or
otherwise of procedures as to:
(i) the alleged unequal treatment of
witnesses
(ii) the failure of the
Tribunal to signal in advance
of
a finding of obstruction or hindrance their mind
to do so and offer the Plaintiffs an opportunity
to
make submissions in that
specific regard.
These arose,
if valid, as truly on the publication of
the 2nd Report on 26th September 2002 as at the
date
of the publication of the
3rd Report on 21st January
2004
and all could have formed the basis of
proceedings by way of judicial review, which
even
at "the leave stage" could
by the direction of a
judge, if
so minded, ordered to proceed on a plenary
basis particularly having regard to
the
constitutional issue or
issues raised.
For
convenience, therefore, and not by way of
treating the issue of delay as a preliminary
issue,
but as an issue to be
determined in the proceedings
and
before me, I now propose to consider the four
issues raised in the Order of Kelly J.
for
determination.
Before embarking on a consideration of the
issues
determined by Kelly J. to
arise, it is necessary to
consider two matters referable to the 2nd and
3rd
Report:-
1) The Tribunal contends that the 3rd report is
in
effect a "reiteration" of the
2nd report.
While undoubtedly
there are findings in both
reports against the Applicants of
obstruction
and hindrance, there
are also the following
differences:-
a) Amount of payment
b) The identity of the payee
c) Analysis of particular factual
evidence
d) Similar but different
issues
Accordingly, in my
judgment, this case is clearly
distinguishable from same facts evidence and
the
decision in Finnerty -v- Western Health
Board
(unreported, the High
Court, 5th October 1998, per
Carroll J.). In my judgment, the 3rd Report is
not a
"reiteration" of the 2nd
Report. While they can be
said to
be interlinked (they are not inextricably
linked) - it is clear from the text of the 2nd
Report
itself that it is final
only upon certain payments to
Mr.
Burke. The final decision on the Burke payments
therefore was made known to the Applicants on
the
publication of the 2nd
Report.
2) The Tribunal contended
that because there was no
challenge to the 2nd Report where the
substantive
findings of
'Obstruction and Hindrance' appeared and
that as the 3rd Report had in effect
like
confirmatory findings, the
Applicants were estopped
by their
conduct from proceeding to challenge such
findings in the 3rd Report. In my judgment, it
is
inappropriate to introduce
private law concepts of
estoppel
into the public law field. Tribunal
decisions are taken in a sense in the name of
the
public, and remedies against
them must take into
account the
interests of the general public which the
Tribunal was set up to protect or promote.
Estoppel
binds individuals (as
Lord Scarman pointed out in
Newbury District Council -v- Secretary of State
for
the
Environment 1981 AC 578, 616) on
the ground that
it would be
unconscionable for them to deny what they
have represented or agreed. See also
Reprotech
Ltd.
-v- East Sussex
CC [2003] 1 IWLR 348
per
Lord Hoffman at p.357 para
33).
In the instant case the
Applicants made no
representation
or agreement on the publication of the
2nd Report, their inaction does not estop them
from
challenging the 3rd
Report.
Before considering
the submission of the parties on
the question of delay in the bringing of
proceedings,
I think it
appropriate that I set out my findings of
fact on the oral evidence given by the
First
Plaintiff in conjunction
with the affidavit evidence,
above referred to, which was put to the witness
in
cross-examination. I am
satisfied and find as a fact
that:-
1. At
all material times the Applicants had the
benefit of legal advice, and that Mr. Murphy kept
in
touch by phone or fax with his
solicitors on a
regular
basis.
2. That on publication of
the 2nd Report Mr. Murphy
was, on
his own evidence -
(a) absolutely
horrified about the finding of the
Tribunal in relation to the payment to Mr. Burke
(T.4
p.11 q.43)
(b) absolutely devastated and felt criminalised
by
the findings of the Tribunal
of 'obstruction and
hindrance'.
(T.4 p.11 q.44 l.19; p.45, l.25, 27;
p.12 q.50 l.20, 23)
3. Following the publication of the 2nd Report
on
26th September 2002 in late
2002, he had a series of
meetings
and consultations his lawyers to consider
the effects of the report and "so
on".
4. That he received advice
that he had no right of
appeal
from the findings of the report: but swore he
received no advice on the ground that he was
found to
have obstructed or
hindered the Tribunal. I found
some difficulty accepting this latter part of
the
evidence.
5. In early 2003 there was detailed
correspondence
between the
Applicants' solicitors and the Tribunal
in relation to costs and that specifically in
May
2003 the solicitors
challenged the jurisdiction of
the Tribunal to make a finding of 'obstruction
and
hindrance' - asserting that
it was a function
specifically
reserved by the Constitution to the
Courts.
The
1st Applicant was aware of this submission at the
time of its being made.
6. That the Applicants decided to do nothing
about
the findings in the 2nd
Report (which included
findings
of obstruction and hindrance) (T.4 p.24
q.111) but Mr. Murphy swore that he intended to
wait
until the Third Interim
Report, whenever that might
come,
then the two would be taken together (T.4 p.24
q.108). However, he had earlier sworn that he
"had
no idea if there was a Third
Interim Report, when it
was
coming out". (T.4, p.19 q.81 l.1-2). When asked
if the 3rd Report had not been published that
no
steps would have been taken
about the second report,
his
response was "maybe not". (T.4, p.25 q.118 and a
like response to q.127 p.28) I found the evidence
of
Mr. Murphy equivocative. I am
satisfied that
notwithstanding
whatever rights or entitlements he
might have had to challenge the 2nd Report of
which I
am satisfied he was aware
of, certainly by May 2003,
he
elected not to exercise those rights. I am
likewise satisfied that as a matter of
probability he
knew that there
would be a Third Interim Report -
but did not know what it would contain and did
not
decide to await its
publication to challenge the
2nd
and 3rd Reports together.
From
the foregoing, the following questions arose for
determination.
(a) whether the proceedings herein ought to have
been
brought by way of an
application seeking Judicial
Review and, therefore, whether the use by
the
Applicants of the plenary
procedure constitutes an
abuse of
process of the Court.
Legal
Submissions.
(I) The
Tribunal:
Objection was taken to
the form of the proceedings,
it
is contended that had they should have been by way
of Judicial Review. O.84 of the Rules of
the
Superior Courts were adopted
specifically to ensure
certain
safeguards applied to challenges to decisions
of public bodies (such as the Tribunal). The
purpose
of the order is to ensure
that challenges are
initiated
promptly, to ensure that those bodies are
protected against delayed applications and to
ensure
certainty in respect of
decisions of findings of
those
bodies.
Delay must be
analysed from both a procedural and
substantive aspect, and "the analysis commences
with
the obligation to bring the
application "promptly".
It is the
key word which is the foundation of the
process. As to whether the application is
prompt
will depend on all the
circumstances of the case."
(De Roiste -v-
the Minister for Defence [2001]
1 IR
190 at 204 per Denham
J.)
By bringing plenary
proceedings to circumvent both
the time limits and the obligation to
bring
proceedings promptly as
imposed by Order 84 was,
in the
submission of the Tribunal, an abuse of
process: This argument is strengthened by
the
bringing of the subsequent
Judicial Review
proceedings.
Furthermore, that as the declaratory
reliefs being sought by the Applicants
are
discretionary in nature, the
time constraints and
promptitude
to be observed under O.84 ought to be
applied: and, that in any event the constraints
were
applicable notwithstanding
that the reliefs were
commenced
by plenary proceedings.
(II)
The Applicants:
The procedure
provided for in Order 84 is not an
exclusive procedure for persons seeking
declaratory
relief in matters of
public law. The decision of the
House of Lords in O'Reilly -v- Mackman [1983] 2 AC
237 has not been followed by our courts and there
was
no reason to depart from that
position in the instant
case. It
cannot be an abuse of process for a
claimant to request a court to exercise
its
discretion on a matter of
public law. That the
application
for the reliefs sought in the plenary
proceedings were in relation to the 2nd and
3rd
Reports (the 3rd not being a
reiteration of the 2nd
report)
were brought timeously and certainly in
relation to the 3rd Report within the
time
constraints of
O.84.
Determination:-
I accept the submissions of the Plaintiff that
there
is no exclusive procedure
and that the authority in
the
United Kingdom has not been followed in our
Courts and it is not therefore per se an abuse
of
process to initiate
proceedings by way of Plenary
Summons. However, where a procedure of the nature
of
O.84 is provided for in the
Rules of Court to cater
for the
kind of reliefs sought in these proceedings
then such procedure should be followed.
Furthermore,
the adoption by the
Applicants of the plenary
proceedings does not excuse the non-application
of
the time constraints provided
for by O.84. While it
is not
desirable that the form of action should
determine the relief to be granted,
nevertheless
where claims for
declaratory relief (which is
discretionary) are made, as they are in the
instant
case), exactly the same
considerations (as to time)
apply
in the plenary proceedings as in the case of
Judicial Review, otherwise the Court would
be
complisant with a Plaintiff in
seeking to circumvent
the
constraints of O.84.
(b) Whether
the Applicants proceedings have been
brought promptly and in any event, within the
time
limits prescribed by Order
84, Rule 21 of the Rules
of the
Superior Courts?
Legal
Submissions
(I) The
Tribunal:
In the instant case
there has been considerable delay
in instituting proceedings, accordingly, where
the
relief sought is
discretionary in nature, the Court
should look to the behaviour of the
Applicants.
Reliance was placed
on the decision in O'Donnell
-v-
Dun Laoghaire
Corporation [1991] ILRM 301 at
314:
"A declaratory order is a
discretionary
order arising from
the wording of a
statute which
conferred jurisdiction on
the
Court to make such orders (see
Wade, Administrative Law 5th ed,
p.523)
and it is well established
that a
Plaintiff's delay in
instituting
proceedings may, in
the opinion of the
Court,
disentitle the Plaintiff to
relief."
In that case the Plaintiff had sought
declaratory
relief by way of
plenary proceedings, where Judicial
Review might have been more appropriate. Costello
J.
(as he then was) applied by
analogy the rules and
principles
contained in Order 84 R. 21 (at p.314/5 of
the report). That decision was adopted and
followed
in Futac Services Ltd. -v- Dublin City Council
and
Others
(unreported, the High Court 24th
June 2003).
It was submitted that
there was substantial,
unnecessary and inexcusable delay in challenging
the
findings of the second
report. There was a delay in
bringing proceedings for approximately a period
in
excess of 19 months. This is
not within the time
limits and
assuredly not promptly as envisaged by
O.84 r.21. The evidence of the First Applicant
at
paragraph 9 of his affidavit
sworn on 27th January
2005 in the
Judicial Review proceedings was that he
was 'deeply shocked and horrified' to read of
the
findings of obstruction and
hindrance of the
Tribunal, in its
2nd and 3rd reports; and, in
paragraph (11) of the same affidavit, that
these
findings have been
'personally devastating'. At all
material times during the course of the hearing
by
the Tribunal and thereafter,
the Plaintiff had the
benefit of
legal advice. Further, at paragraph 7 of
his affidavit sworn on 25th February 2005 in
the
plenary action, Mr. Murphy
avers:
"....therefore, where the
Third Interim
Report appeared,
containing damning
findings of
obstruction and hindrance
arising
from the flimsiest evidential
base and on the basis only that
the
Tribunal preferred two bare
allegations
in the evidence of
Mr. Gogarty to all
of our
evidence, it is quite literally
the straw that broke the camel's
back."
The evidential
background against which Kelly J.
refused an order for Judicial Review is that set
out
in the affidavit evidence and
the Judge is attributed
as
expressing the view en passent in an impromptu
opinion that had it been a "leave application"
in
24th January 2005 that he
would have granted an
extension
of time to enable the bringing of an
application for Judicial Review. Even if this be
so,
it would not be a bar to the
raising of the time
issue on the
hearing of the application for Judicial
Review. The Applicants concede that they are
outside
the time to challenge the
2nd Report and effectively
that
the onus is on them (per Costello J. in
O'Donnell's case [1991] ILRM 301 at 315 to
satisfy
the Court that there are
reasons which both explain
the
delay and afford a justifiable excuse for the
delay. The following reasons were advanced in
the
submissions of the
Applicants:-
(I). The split
between the 2nd and 3rd Report is
artificial, it was a split of one body of
evidence
(i.e. "the Gogarty
module"). That it was objectively
reasonable for the Applicants to await the
outcome of
the 3rd Report before
challenging the 2nd Report.
In my opinion the character of the legal
challenge is
similar but the
decisions are separate and it is 'the decision' that is challenged.
The Applicants
cannot, in my
judgment, at one and the same time
argue that the decisions are distinct and seek
to
avail of delay in one as
justified because the 3rd
Report
decision may have been challenged in time.
(II) There would be an unreality if the
Applicants
were to be permitted
to challenge the 3rd Report
decision on 'obstructing and hindering' and
precluded
an entitlement to
challenge the like element in the
2nd Report decision.
(III) It is desirable that the Court should
decide
any issue which might
obviate the need for the Court
to
pronounce upon the constitutionality of a
statutory provision.
(IV) That as it was an undisputed fact that
the
Applicants were within time
in challenging the
decisions on
costs (which was in part influenced by
the findings of 'obstruction and hindrance'),
it
becomes necessary to consider
and decide as a matter
of legal
principle whether the Tribunal had power to
make findings of 'obstruction and
hindrance'.
(V) The issues, and
particularly the power of the
Tribunal to make findings of 'obstruction
and
hindrance' are matters both
of public importance and
public
interest.
(VI) There is no
prejudice to the Tribunal or third
party in having the issues litigated either as at
the
dates of the issue of either
set of proceedings or at
the date
of hearing.
Determination:
It was conceded that it was possible to
issue
judicial review proceedings
embracing certiorari and
the
constitutional issues on the publication of the
2nd Report (T.7 p.7/8). In my judgment if the
points
made in either set of
actually issued proceedings
(save
as to costs) are good or valid, then they were
so on the publication of the second
report.
If Mr. Murphy was
devastated and shocked by the
finding that he had obstructed and hindered
the
Tribunal in its work and
advanced the case as one of
error
in legal principle, it was not in my judgment
objectively reasonable to let such go
unchallenged
and that promptly
and within time. He should have
been particularly prompt on the issue of the
3rd
Report (which he at once
speculated would issue or
did not
know if there was going to be a 3rd Report).
He did not require to be twice damned (for that
is in
large measure in layman's
language the substance of
his
complaint) to spring into action. If Mr. Murphy
deliberately awaited the 3rd Report, and had it
not
issued prior to the Court
hearing in October 2005, he
said
he may not have challenged the 2nd Report.
(T.2 p.25 Q.118 l.21-27).
In my opinion, it not pointless, if appropriate,
to
permit a challenge to findings
of obstruction and
hindrance on
the 3rd Report and to preclude it in
respect of the 2nd Report. The Applicants cannot
at
one and the same time argue
that the decisions are
separate
and distinct and each to be judged
independently and that one is subsumed
or
inextricably bound into the
other so that they stand
or fall
together. The rational of certainty in the
law lies in its ability to promote justice and
to
serve the needs and
expectations of the community.
The right of the Applicants to challenge
the
2nd Report promptly and
within time not having been
exercised, the community was entitled to expect
the
decision to stand and to
regard the inquiry on the
matter
of urgent public importance as completed.
In my judgment, the Applicants are not entitled
to
challenge the determinations
in the 2nd Report but
that does
not preclude him from challenging the
determinations in the 3rd Report. This is not
a
futile
exercise.
Given the alleged
sense of grievance of the
Applicants concerning the 2nd Report, making
findings
of obstruction and
hindrance, which they did not
challenge for 19 months, there was in my opinion
an
added sense of obligation to
challenge the 3rd Report
promptly. This they did not do. They left it to
one
day within the period set as
the latest under the
rules to
challenge the 3rd Report. Notwithstanding
that in such circumstances I find that there
are
valid grounds for exercising
my discretion against
permitting
a challenge to the 3rd Report, I would not
wish to rest a judgement on that basis. I
would
prefer to take a more
liberal view informed by the
decisions in De Roiste -v- the Minister for
Defence,
2001 1 IR 190 per
Denham J. at 204 and Fennelly J. at
221, O'Callaghan -v- McMahon, Supreme Court, 9th
March 2005 per Hardiman J., observing that a
Judicial
Review application in
that case was made within one
week of the decision challenged and from which
the
instant case is clearly
distinguishable, and O'Brien
-v- Moriarty, Supreme Court, 12th May 2005 per
Fennelly J.. I do not believe that the
Respondents
can conclusively
argue that there is some special
substantial factor which should defeat the
Applicants
challenging the 3rd
Report.
The case sought to be
made by the Applicant that the
Tribunal did not grant those before it
equal
treatment, was expressly
directed to Mr. Gogarty's
evidence, such arose years before legal
proceedings
issued. Documents
obtained by the Discovery process
and proven by oral evidence as so obtained, but
not
(other than admitted as
records of the proceedings
before
the Tribunal and others as having emanated
from or received by the Tribunal) proof as to
the
truth of their contents were
sought to found this
case. In my
judgement, if there ever was a case in
this regard, and even disregarding the fact that
Mr.
Gogarty is dead, no
meaningful or serious or any
challenge was brought, even when appropriate, and
I
do not consider it appropriate
in Judicial Review or
on the oral
evidence to adjudicate ex post facto on
certain discovered documents related to
objections
before the Tribunal
and an attempted retrospective
application of the decision in O'Callaghan -v-
McMahon ante,
for such would be to completely ignore
the time limits of Order 84
R.21.
If this was a valid
complaint, and I make no
adjudication on it as an issue, it was as valid
when
first raised before the
Tribunal as when complained
of to
the Court and even permitting a challenge to
the 3rd Report, I would not grant relief (1) on
the
state of the evidence, (2)
the inexcusable delay and
indeed
the inexplicable delay in bringing the
proceedings and (3) in permitting the work of
the
Tribunal to proceed and when
the outcome was not to
the liking
of the Applicants then to issue
proceedings. Furthermore, the first three
personal
Applicants were invited
to attend the Tribunal in
private, having first been notified in advance of
the
questions that would be asked
and were invited to
provide the
Tribunal with a written statement in
respect of these questions. Both the First
and
Second Applicant declined by
letter dated 30th
September 1998.
This submission was unchallenged at
the hearing in court. If they were subsequently
at a
disadvantage from such
election, it does not point to
any want of fair proceedings or fair procedures.
In
my judgement, the Applicants
declined to engage with
the
Tribunal in private and issues became
controversial in public which required
determination.
They cannot
reasonably make many of the complaints
they did in public at the Tribunal and before
the
court in that context.
Furthermore, equality of
treatment of witnesses does not mean that
identical
treatment must be
accorded to each witness, for such
does not allow for differences of capacity, age,
the
role and relative importance
of each witness or the
variants
that context provides before courts or
tribunals.
The Legislative Framework.
The Tribunal was originally established under
the
Tribunals of Inquiry
(Evidence) Act, 1921, as adapted
by and under subsequent enactments and the
Tribunals
of Inquiry
(Evidence)(Amendment) Act, 1979. On the
occasion of the Amended Terms of Reference,
the
Tribunal was requested by the
Dáil to conduct its
enquiries in
a particular manner to the extent that
it may do so consistent with the Tribunals of
Inquiry
(Evidence) Acts 1921 to
1998, specifically in the
Amended
Terms of Reference-
"F. And that
the Sole Member of the Tribunal should
be informed that it is the desire of the House
that-
(a) The enquiry into the
matters referred to in
paragraph
E hereof [referable to
Mr.
Raphael Burke] be completed in as
economical a manner as possible and at
the
earlier "(stet)" date
consistent with a fair
examination of the said matters,
and
(b) All costs incurred by
reason of the failure of
individuals to cooperate fully
and
expeditiously with the
Inquiry should, so far
as is
consistent with the interests of justice,
be borne by those
individuals."
The Act of 1921
(the Principal Act) provides that
where the instrument by which the Tribunal
is
appointed provides that the
Act is to apply
"the Tribunal
shall have all such powers, rights and
privileges as are vested in the High Court"
in
respect of a limited range of
matters. Section 3 of
the Act of
1979 substantially amended Section 1 of
the Principal Act. It is provided that if a
person-
"(c) willfully gives
evidence to a
tribunal which is
material to the
inquiry which the
tribunal relates and
which he
knows to be false or does not
believe to be true, or
(d) by act or omission, obstructs
or
hinders the Tribunal in the
performance
of its
functions.
the person shall be
guilty of an offence."
Section 1(2A) deals with the offence in the
context
of the criminal law as
separate and distinct from the
context of the Tribunal.
I am satisfied and find as a fact and as a matter
of
law as determined by the
several authorities referred
to
by Counsel that-
i) The
Tribunal was and is not an adversarial but
rather an inquisitorial hearing.
ii) There was and is no lis inter
partes.
iii) The Tribunal was not
prosecutorial and the
question of
any charges of obstruction and hindrance
is a matter for another authority, to wit,
the
Director of Public
Prosecutions.
iv) The evidence
given at the Tribunal could not and
cannot be used in any criminal proceedings. If
the
Director of Public
Prosecutions is prosecuting, he
must assemble evidence in the ordinary course for
a
prosecution.
v) The Tribunal in making its findings made, as
it
must, its determination on
"the balance of
probabilities",
not on a criminal standard of proof.
I reject the submissions of the Applicants that
the
Tribunal when it made its
finding of "obstruction and
hindrance" acted ultra vires, or was
administering
justice as a court
or making any determination of a
criminal offence. I accept the submission of
the
Defendants that the Tribunal
in making its findings
based on
its enquiries, and reporting those findings
to the Oireachtas with its recommendations,
was
operating within its Terms of
Reference and the
legislation
embraced therein in governing the
Tribunal.
The report of The Ansbacher Tribunal
(otherwise
referred to as "The
McCracken Tribunal") also had
reason to consider Section 1(2) of the Principal
Act
as amended by the Tribunals
of Inquiry (Evidence)
Amendment)
Act 1979, concerning 'obstruction and
hindrance' in Chapter 10. That report noted
that
protracted correspondence
and unforthcoming
information
"was most unhelpful and very time
consuming for the staff of the Tribunal to
deal
with". While the language
differs from the report
of the
Tribunal in the instant case - the intendment
is the same: McCracken
concludes-
"It is not for the
Tribunal to
determine whether Mr.
Charles Haughey
should be
prosecuted pursuant to the
section quoted above as this is a
matter for the Director of Public
Prosecutions. However, the
Tribunal
considers that the
circumstances
warrant the papers
in the matter being
sent to the
Director of Public
Prosecutions
for his consideration as
to
whether or not there ought to be a
prosecution, and the Tribunal
intends
to do
so."
The language in which
the Tribunal records the facts
ascertained by it may differ from one tribunal
to
another - what is clear is
that it is for the
Director of
Public Prosecutions to make his own
decision on the material referred to him and such
as
he may gather as to whether to
prosecute or not. The
view of the
Tribunal is not determinative of a
criminal offence. The fact that Mr. Murphy
"felt"
criminalised is not to say
that the Tribunal
determined or
purported to determine that a criminal
offence had been committed.
It is true that the Terms of Reference do not
in
express terms empower the
Tribunal to make findings
of
'obstruction or hindrance', but both the original
Terms of Reference (dated 4th November 1997) and
the
Amended Terms of Reference
(dated 15th July 1998)
postdate
the enactment of the Principal Act and the
Act of 1979. The Amended Terms of Reference
also
postdate the enactment of
the second of the Acts of
1997
[No. 42 of 1997] and the further amending Act of
1998 (No. 18 of 1998) enacted on 12th June 1998.
In
mandating the Tribunal to make
inquiry "and making
such findings
and recommendations as it sees fit",
the Dáil resolution was cast in the context of
the
specific
statutes.
In my judgment the
Tribunal was entitled to find as a
fact if there was evidence (including conduct
before
the inquiry and/or in
correspondence or Discovery
matters) before it of any of the matters set out
in
Section 3(2)(a) to (f) of the
Act of 1979 on the
balance of
probabilities. That a prosecution, on its
own evidence and tested by the criminal standard
of
proof might arise under the
same headings, is nihil
ad rem.
The Applicants complain that when they
sought some guidance from the Tribunal at the end
of
the evidence but before the
Tribunal formulated its
findings,
the Tribunal did not alert them to the
possibility that any findings might be made
other
than in respect of
substantive matters. In my
opinion there was no obligation to make the
response
contended for - it would
be speculation on my part to
try
and determine at what stage in the decision
making process the decision was even in
formulation.
The Applicants were
left at liberty as to what
submissions they wished to make in relation to
the
issues the subject of the
Tribunal. It is an
opportunity
afforded to advocates in many cases,
sometimes the opportunity is taken to canvass
the
Court on the cooperative
nature of one witness in
assisting the Court or to criticise the
impediments
placed before the
Court by a witness in opposition
and how a lack of candour added to the length
of
trial.
In these proceedings, the Applicants challenge
(1)
the findings of the Tribunal
as to obstruction and
hindrance,
(2) the rulings of 3rd June 2004 on the
principles to be applied by the Tribunal in
ruling on
costs and the ruling of
9th November 2004 refusing
the
Applicants any elements of the costs, in which
the Tribunal relied on the findings of
obstruction
and hindrance as well
as the finding of corruption
contained in both the 2nd and 3rd
Reports.
Notwithstanding my
determination that the Applicants
cannot now challenge the findings of the 2nd
Report
they are within time to
challenge the specific ruling
of
30th June 2004 by service of the amended Statement
of Claim of 28th July 2004 in the
plenary
proceedings. The
challenge to the ruling of 9th
November 2004 was brought within the time limits
of
Order 84 R.21 by service of
the Judicial Review
proceedings
on 7th February 2005.
Specifically in relation to costs, the
Applicants
challenge:-
a) the validity of the findings of obstruction
and
hindrance upon which part of
the rationale of the
refusal of
the Applicants' cost is based.
b)
the entitlement of the Tribunal to take into
account its findings of obstruction and hindrance
in
the exercise of its discretion
in relation to costs.
c) the
entitlement of the Tribunal to take into
account its substantive findings of corruption in
the
exercise of its discretion in
relation to costs.
d) the
constitutional validity of the legislation
which, contrary to the Applicants'
submissions,
permit the Tribunal
to make findings of obstruction
and hindrance or permits the tribunal to take
into
account such findings and/or
its substantive findings
of
corruption in the exercise of its discretion as to
costs.
The
specific grounds of constitutionality relied upon
in this regard are that, if permitted by
the
legislation, to act in the
manner in which it did,
the
Tribunal has crossed the threshold into the
realms of administering justice contrary
to
Articles 34 and 37 of the
Constitution and further
that
such findings would be contrary to Articles 38,
40.1 and 40.3 of the
Constitution.
The factual
background to the rulings may be briefly
stated by noting that the Applicants were engaged
in
the workings of the Tribunal
for 163 hearing days and
over and
appreciable length of time were in
communication with and made Discovery to it.
As
noted subsequent to the
hearing of the evidence, the
Applicants, with others, were invited to
make
submissions as they wished
to the Tribunal. This is
not a
mere invitation to tender an explanation of
past events. It comes towards the end of a
process
of enquiry and is
therefore clearly distinguishable
from the decision in Gallagher -v- Corrigan,
(unreported)
the High Court, 1st February 1998 per
Blayney J. The Applicants, through their
solicitors,
by letter dated 20th
July 2000 responded to the
Tribunal and enumerated what appeared to be
the
allegations against them and
then stated:
"We believe it
to be of the utmost
importance
that if the Tribunal is of
the
view that we have not identified
correctly the allegations made
against
our clients, or if we
have failed to
identify all of
the allegations that it
inform us
of that fact prior to the
making
of submissions."
The response
of the Tribunal of 28th July 2000 was
not to be drawn into the debate sought in
the
solicitors letter, but to
(inter alia) state:-
"2. The
Sole Member does not consider
that it would be appropriate at
least
for the present to given
indications or
guidance in
relation to any submission
that
any party may wish to make.
However, all parties will be aware
[of
the amended terms of
reference]."
4. The Sole Member
notes the contents
of the
schedule furnished by you
containing what you say are 'the
allegations made against the
Murphy
interest'. The Sole Member
will
consider all the evidence
before he
makes any finding and
if, having
reviewed the evidence
and having
considered all
submissions, if any, he
is of the
view that it is necessary for
him
to hear submissions on any
particular point not already
covered
then he will invite
submissions on any
such
issue."
It is also clear from this letter that the
Tribunal
did not wish to be
canvassed on the evidence given to
it. It is settled law that a Tribunal is not
a
court, even though it may use
and have available to
it elements
appropriate to court procedure.
Nevertheless, in arriving at its findings on
the
issues referred to it, the
Tribunal was entitled, as
at the
same time to indicate what witnesses or
evidence was of assistance or hindrance to it in
its
deliberations. Indeed the
absence of such an
incidental and
necessary finding or indication or
decision could justifiably give rise to a
complaint
that the findings on
the issues referred to the
Tribunal had been arrived at in the form of a
dictat
or summary or prefunctory
manner. When the Tribunal
published the 2nd Report on 29th September 2002
it
referred both in its preface
and in chapter 17 to the
matter
of non-cooperation by the Murphy interest and
specifically at 17-04 stated:
"There is an obligation upon
every
witness called to the
Tribunal to give
a truthful
account of the matters upon
which
they are questioned and failure
to do so can amount to a failure
to
cooperate with the Tribunal
which can
have serious
consequences as regards
costs and
otherwise."
The report is to
be read as a whole and in Chapter 2,
paragraph 2.06, the Tribunal acknowledges
its
separateness from the
functions of the DPP in what
may
involve breaches of the criminal law.
Subsequent to the publication of the 2nd Report
and
before the publication of the
3rd Report on
21st January 2004,
the Tribunal wrote to the
Applicants' Solicitors as well as to others on
16th
April 2003 in the following
terms:-
"In the light of the
findings of the
Tribunal made in
relation to your
clients, the
Chairman has directed that
you be
afforded the opportunity to make
oral submissions to him at a
public
sitting of the Tribunal to
take place
on 6th May 2003 on the
principles which
should be
applied by him in exercising
his
discretion under this section in
relation to the costs claimed by
the
persons who fall within the
category of
persons against whom
findings of
corruption were made
or who have been
found to have
obstructed or hindered
the
Tribunal or to have failed to
cooperate with or to provide
assistance
to the Tribunal as
requested."
The letter went
on to state that subsequent to
hearing all submissions of all parties on this
issue,
the Tribunal would then
proceed to hear applications
for
costs from individuals who fall within the
aforesaid category who were seeking an order
for
their own costs to be paid by
the State. The
Tribunal indicated
that having determined the
entitlement of these individuals to their
costs:
"...the Chairman will
then proceed to
deal with any
applications which are
brought by
the Attorney General or the
Minister for Finance or any other
party
who is seeking an order
providing that
the costs of
others, including the
Tribunal,
should be paid by parties
other
than the State. If such an
application is made by any party
requiring you to pay the whole or
any
part of the costs including
the costs
of the Tribunal, you
will be notified
of any such
application and you will be
afforded an opportunity of making
submissions in relation thereto,
whereupon a date for the hearing
of
such application will be
fixed."
Subsequent to the
initiation of the plenary
proceedings challenging the Tribunal's findings
of
obstruction and hindrance and
the enactment of the
Tribunals of
Inquiry (Evidence)(Amendment) Act 2004,
the Tribunal again wrote to the Applicant inter
alia
as
follows:-
"I write to inform
you that it is the
intention of
the Chairman of the
Tribunal to
sit on Monday 14th and
Tuesday
15th June 2004 to hear
submissions on the principles
which
should be applied by him in
the
exercise of his discretion
when dealing
with applications
for costs made by
persons (a)
against whom findings of
corruption have been made; or (b)
who
otherwise fail to cooperate
with or
provide assistance to the
Tribunal and
whose conduct was
reported on in the
Second and
Third Interim Reports of the
Tribunal.
The
Tribunal has already acknowledged
receipt of your written submissions
and
will accept the written
submission
already made by you in
relation to his
earlier request
as being applicable to
the
present legislative provisions.
The Chairman does not believe that
the
issues raised by your client
in the
present proceedings are
material to the
issues intended
to be addressed on
14th June
2004. Your participation in
this
process will not be deemed to
amount to an acknowledgment by
your
clients of the right of the
Tribunal to
make findings of
obstruction and
hindrance against
persons who have been
the subject
of its inquiry."
The
Applicants made written submissions and in oral
submissions sought a deferral by the Tribunal of
its
ruling until the
determination of these proceedings.
Not surprisingly, given that the 2nd Report has
been
in circulation for almost a
year and a half, or
indeed more,
the Tribunal refused the Applicants'
request. Specifically and central to the
arguments
made before the Court,
the Applicants submitted to
the
Tribunal that it ought not to have regard to the
substantive findings of corruption when settling
the
principles to be applied in
respect of costs. That
submission
was based on a construction of the
legislation and an interpretation of the decision
of
the Supreme Court in
Goodman International &
Anor.
-v- The Honourable
Mr. Justice Liam Hamilton & Others
[1992] 2 IR 542, to which I shall
return.
In the ruling of the
Tribunal on the principles to be
applied on an application for costs by
persons
against whom a finding of
corruption has been made,
the
Tribunal concluded that it was entitled to have
regard to such findings when exercising
its
discretion on costs.
Notwithstanding that ruling and
the proceedings as they then stood at that date,
the
Applicants made application
for their costs and the
adverse
ruling of 9th November 2004 is challenged
herein. It is clear from that ruling that
the
non-cooperation of a serious
nature was a factor
taken into
account in the ruling of 9th November
2004. The ruling inter alia
states:-
"In spite of the
serious findings of
corruption on
the part of some of the
Applicants, I would have
considered
awarding a portion of
their costs had
they chosen to
fully and honestly
cooperate with
the Tribunal."
The foregoing
rulings relate to "costs for"
determinations. Although the Tribunal has
not
addressed the issue as to
whether costs should be
awarded
against any party, and has not even addressed
the issue in principle, the Applicants claim to
stand
in "real and imminent
danger" that costs will be
awarded against them by the Tribunal. (See
the
amended Statement of Claim,
paragraph 26).
The manner in
which the Applicants framed their claim
in the re-amended Statement of Claim and in
which
they put their cases in
written submissions make it
clear
that their primary focus is on the Tribunal and
on its findings and rulings. The claim against
the
State Defendants (Ireland and
the Attorney General)
is very
much an alternative claim which seeks to
challenge the constitutionality of
unspecified
provisions of the
Tribunals of Inquiry (Evidence)
Acts as being in breach of Articles 38, 40.1 and
40.3
and Sections 6(1) of the
1979 Act (as amended) as
being in
breach of Article 34 of the Constitution.
Applying the doctrine of judicial
self-restraint,
I defer a
consideration of this matter until I have
dealt with the case against the Tribunal. Taking
a
conspectus view of the
evidence, I am satisfied and
find
as a fact that there was evidence before the
Tribunal upon which it was entitled to make
the
findings and rulings it did.
The question that then
arises is
did it have the power in law to do so and
act as it did? It is common case that a
Tribunal
under Section 6 of the
1979 Act as amended by
Section 3
of the 1997 Act does envisage a Tribunal
having power to make findings of inter alia
failure
to cooperate. It seems
reasonable and in my opinion
necessary to infer that the legislature in
so
providing would not emasculate
such power as to
inhibit a
Tribunal from making findings as to degrees
of culpability in this regard. To so limit
the
tribunal would be to fail to
distinguish between
formal
non-cooperation, perhaps through oversight or
genuine misunderstanding, and active or
deliberate or
sustained conduct
of omission or commission such as
hindered a tribunal. To so limit or circumscribe
the
power of the Tribunal in the
context of the
legislation could
work a manifest injustice. In my
judgement, in making such distinctions as it did
in
the instant case, the Tribunal
went no further than
was
necessary and properly required to do to carry
into effect the task entrusted to it and that in
its
making findings of
obstruction and hindrance, such
may be fairly regarded as incidental
and
consequential upon those
things which the Oireachtas
authorised. The fact that in a different forum
and
evidence tendered to it
tested by a different
standard of
proof, conduct set out in Section 3(2) of
the Act of 1979 is a criminal offence and did
not
make the decision of the
Tribunal ultra vires.
Further,
only the Courts have the punitive power in
the event of a successful
prosecution.
Furthermore, in
arriving at its determination on the
issues submitted to it, a Tribunal must have
regard
to the evidence and
credibility of witnesses. Having
heard the evidence and invited the submissions of
the
parties, there was not, in my
judgement, any further
necessity
for the Tribunal to invite a further
hearing on whether particular evidence or the
lack of
it or the conduct (of
omission or commission) and the
demeanour of a witness or witnesses fell within
any
particular category or range
of credibility or in the
spectrum
of complete co-operation or non-cooperation
amounting to obstruction and hindrance.
The
arguments of the Applicants,
when reduced to its
essence, was
that a tribunal of inquiry entitled to
pronounce on the question of co-operation
was
confined to degrees of
comparison: un-cooperative,
more
un-cooperative, most un-cooperative. The
function of the Courts in this context is to
be
satisfied that the Tribunal
had the appropriate
authority to
exercise the power to make the findings
it did and observe proper procedure and apply
the
entitlements of the concept
of, and the precepts of,
natural
justice as laid down in the decisions of the
Courts. It is not, to adopt an expression
of
Marquez, "a millimetric task
of hunting down errors
in the
thickets of language". In short, in my
judgement, the Tribunal was entitled to make
a
finding of obstruction and
hindrance at one and the
same
time as its primary findings. Furthermore, the
Tribunal in the process of its decision making
was
not obligated to notify any
person in advance of its
final
decision as to what view it had formed of the
conduct of any party where such party had
appeared
before the Tribunal and
had the opportunity of
availing
of and exercising its legal rights and
entitlements. A consideration of the evidence
cannot
be divorced from the
person or persons giving their
evidence and their credibility and conduct cannot
be
realistically isolated
completely from any such
evidence.
Paragraph C(b) of the Terms of Reference enjoins
the
Tribunal to ensure that all
costs incurred by reason
of the
failure of individuals to cooperate fully and
expeditiously with the Inquiry should be borne
by
those individuals. Clearly,
therefore, before any
'costs
stage' could be arrived at, parties must have
been and were effectively on notice that the
issue of
full co-operation would
be considered by the Tribunal
and
that when the 'costs stage' was arrived at, all
the co-operation or non-cooperation that had
preceded
that stage, i.e. the
'costs stage', would be of
importance. There was, in my judgement, no denial
of
opportunity to be heard on the
question of
non-cooperation at
any level or to any degree before
the decision was made and published by the
Tribunal.
The invitation to make
submissions was general, the
limitation was simply on canvassing the
evidence.
The unchallenged
submission of the Tribunal was that
in stating his interpretation of the terms
of
reference on 21st October
1998, the Tribunal, through
the
Sole Member, stated:
"....The
Tribunal has an overriding
duty
to discharge its urgent public
mandate from the Oireachtas to
the
extent possible. The
Oireachtas has in
the Terms of
Reference anticipated the
possibility that certain
individuals
may fail to cooperate
fully and
expeditiously with this
Inquiry. In the
event that the
Tribunal were to
conclude that a
given individual or
entity did in
fact fail to cooperate
fully and
expeditiously the Tribunal
will
report that "finding" to the
Oireachtas."
If the Applicants wished to challenge the power
of
the Tribunal to make such a
"finding", it should have
been
challenged then. Vires cannot be conferred by
acquiescence, but if there was a bona fide belief
in
such an argument, it was and
is unjust that the
Tribunal
should not have been then challenged rather
than proceed with its business to the stage to
which
it did before matter was
raised.
Objection is also
taken to the distinction drawn by
the Tribunal which reported that some witnesses
had
failed to cooperate whereas
the Applicants were held
to have
obstructed or hindered the Tribunal. As
noted, there are degrees of co-operation
or
non-cooperation and the
Tribunal was entitled to
distinguish such matters of degree. The Tribunal
in
the exercise of its function
is not a mere listening
post for
all tendered evidence, it is, subject to the
safeguards of the law, obligated to ascertain
facts -
the discernment applied
in that task is concerned
very
often in trying to reconcile various elements
and on occasion, in cases of conflict,
determining on
the balance of
probabilities what are the reliable
facts and who are the reliable witnesses. The
task
of the Tribunal was to
enquire into the meaning and
truth of past events, if genuine conflict arises
on
facts, such inquiries require
to be investigated and
resolved.
In the expression of a finding, view or
opinion based on facts, the Tribunal is not to be
so
circumscribed as to be
neutered. A person, even if
assisting the Tribunal, is entitled to challenge
a
fact stated to exist and prove
matters to the
contrary. A person
is not entitled to put the
Tribunal to the trouble and expense (of the
public)
of protractedly or even
economically withholding
information or only admitting the inevitable
when
candour could have avoided
such trouble and expense.
The
approach of a person before a Tribunal cannot be
- even if there is an accusor - "catch me if
you
can." The Tribunal was to
serve a particular
purpose, not
to provide an arena such as a court for
a lis inter partes. The Tribunal did not or
purport
to determine legal
liability - but if in the course
of its inquiries it was hindered or delayed or
put to
unnecessary or additional
or unreasonable expense or
trouble, it was entitled to so report; whether
that
took the serious form of
failure to cooperate or the
more
serious form of non-cooperation or 'obstructing
and hindering'. Unlike a lis inter partes where
each
party presents their case to
the independent judge
(who is,
subject to appeal) the judge is the final
arbiter - a tribunal has no case to put, it
informs
those coming before it of
the issues to be
investigated and
invites the participant to tender
such information as they have on the topic, if
such
is inconsistent with
previously gathered information,
oral evidence tested by cross-examination may
become
necessary and a decision
as to whom is the more
credible
and cooperative or non-cooperative witness
will almost inevitably be made, as indeed
the
character of assistance or
non-assistance of the
witness. I
am satisfied that Mr. Murphy knew the
Terms of Reference - that the Tribunal was to act
and
be completed in "as
economical a manner as possible"
and that there were costs implications for
"the
failure of individuals to
cooperate fully and
expeditiously
with the Inquiry." To cooperate is to
work together or to act in conjunction with
another
person to an end. It is
the opposite to hindrance
which
means to put at a disadvantage or to obstruct.
The ordinary dictionary meaning of obstruction is
"to
block with obstacles or
impediments or to render
difficult the progress", in this instance of
the
Tribunal. In my judgement, if
the Tribunal was of
the opinion
on the facts before it that its work and
inquiries were impeded by want of co-operation
and
the blocking of its progress
in its inquiries, it was
entitled
to so find such as a fact. It would be
invidious to fail to record same in its report
and
then at a later stage when an
application for costs
came to be
made that such a finding was made for the
first time. An applicant for costs in
such
circumstances could very
properly object to any
suggestion
or ruling of an adverse nature which had
not been found as a fact on the substantive
hearing
and reports of the
Tribunal.
Section 6 of the
Tribunals of Inquiry (Evidence)
(Amendment) Act, 1979 was amended by substitution
in
Section 3 of the Tribunals of
Inquiry (Evidence)
(Amendment)
Act, 1997 [No. 42 of 1997] provides
that:-
"(1) Where a Tribunal or, if the
Tribunal consists of more than
one
member, the Chairperson of
the
Tribunal, is of opinion that,
having
regard to the findings of
the Tribunal
and all other
relevant matters
(including the
terms of the resolution
passed by
each House of the Oireachtas
relating to the establishment of
the
Tribunal or failing to
cooperate with
or provide
assistance to, or knowingly
giving false or misleading
information
to the Tribunal),
there are sufficient
reasons
rendering it equitable to do
so,
the Tribunal or the Chairperson, as
the case may be"
may deal with costs applications in particular
ways.
In my opinion, it is both
right and proper as the
case
arises for each Tribunal to indicate clearly in
its report by a finding of fact whether there
has
been a failure to cooperate
and if degrees of
non-cooperation
are discernable that this be made
clear. This should be done to properly carry
into
effect the purposes of the
Statute and can be
regarded as
necessarily incidental or consequential
upon those powers. In my judgement, there was
an
obligation on the Tribunal to
explain to the
Oireachtas and set
out in its report why, having been
established by Ministerial Order on 4th
November
1997, it was only making
its reports (2nd and 3rd
Interim)
years later and how such could or could not
be reconciled with acting and completing its task
in
as economical a manner as
possible.
In the course of
the submission of the Applicants,
they referred to instances of alleged
disadvantage to
them at page 25,
paragraph 53 and following in their
written submissions, to which the Tribunal's
response
was set out in their
submissions at page 54,
paragraph
703 and following to 7.29. In the
circumstances, what was referred to as the
primary
findings of the 2nd and
3rd Reports are unchallenged
by
the Applicants, such must be accepted as based on
evidence of probative value. What, in effect,
the
Applicants have sought to do
in these proceedings is
to draw
different conclusions from those drawn by the
Tribunal which had seen, heard and experienced
the
evidence and the matter as
well as the manner of it.
The
Court is not a forum of appeal. In this regard
the Court must be particularly astute in
considering
an application when
documents permitted to be
introduced for illustrative purposes, proven to
exist
were not in fact opened in
public hearings to the
Tribunal.
To admit such indulgence cannot avoid the
rigours of a plenary hearing or the restraints
of
Judicial
Review.
The concern of the
Applicants is clearly in relation
to the consequences flowing from the finding
of
obstruction and hindrance,
rather than any of the
Tribunal's
primary findings. It is evident that the
Tribunal's findings that the Applicants were
guilty
of a corrupt payment seems
of less concern to them.
Against
the undisputed fact that a payment to
Mr. Burke was not for a legitimate purpose and
that
payment to Mr. Redmond was
corrupt, I fail to see any
validity or reality in the argument that respect
for
constitutional right to a
good name requires as a
matter of
construction that the Court find that there
is no power to make a finding of obstruction
and/or
hindrance, which in my
judgement is of far less
serious
significance than making illegitimate or
corrupt payments.
The claim made under the Convention of Human
Rights
Act 2003, which did not
come into operation until
31st
March 2003, and which has not retrospective
effect, (see Fennell -v- Dublin City Council [2005]
2 ILRM
288) was towards the end of the hearing
abandoned, and no issue on this
requires
adjudication.
In matter of costs, the Applicants challenged
the
ruling on the following
grounds:-
1. That the
Chairman[Tribunal] had regard to the
findings of corruption when exercising
its
discretion.
2. That the Chairman[Tribunal] had regard
to
findings of obstruction and
hindrance when exercising
the
discretion in relation to costs.
3. Whether the making of costs orders based
on
findings of obstruction and
hindrance and/or
corruption
constitutes the administration of justice.
4. Whether costs were refused on the basis
of
findings which were never made
by the Tribunal.
As earlier
noted, when the Tribunal was established
and the public hearing commenced, Section 6 of
the
Act of 1979 had been amended
by Section 3 of the Act
of 1997.
The amended provision provides that a
Tribunal in forming its opinion on a matter of
costs
may have regard
to:-
1) The findings of the
Tribunal.
2) All other relevant
matters including [an
expression
conceded as not being exhaustive. (T.7,
p.59, l.28-29)].
(a) The terms of the Resolution passed by the
Houses
of the Oireachtas. [This
was not permissible under
the
terms of Section 6 of the Act of 1979].
(b) Whether the person applying for costs had
failed
to cooperate with or give
assistance to the Tribunal.
[This
was not permissible under the terms of the Act
of 1979].
(c)
Whether the person applying for costs had
obstructed or hindered the Tribunal. [This was
not
something that fell for
consideration under the Terms
of
the Act 1979 but in the Act of 1997 it reflects
the upper range of failure to cooperate
and/or
failure to
assist].
(d) Whether the person
applying for costs had
knowingly
given misleading or false information to
the Tribunal. [This was not something that fell
for
consideration under the terms
of the Act of 1979].
(e) Other
relevant circumstances going to the equity
of the costs orders that might be made. [This
was
not something that fell for
consideration under the
terms of
the Act of 1979].
In my
judgement, the non-exhaustive listing of the
matters that were embraced in the
expression
"including" permit the
Tribunal to consider 'all
other
relevant matters if... there are sufficient
reasons rendering it equitable to do so' in
its
opinion and these are to be
taken into account in the
making
of a costs order. In my judgement, it is not
permissible under Judicial Review on the
material
placed before the court
nor is there any warrant on
the
basis of the evidence tendered at the hearing in
court to displace the opinion of the Tribunal
for
that of the Court. There is
no evidence of failure
to
exercise discretion within the terms of the Acts
or either Terms of Reference.
The Applicants in their submission rely heavily
on
the section in its unamended
form and the
interpretation of it
in that form by the Supreme
Court
in Goodman International -v- The
Honourable
Mr. Justice
Hamilton & Others [1992] 2
IR 542.
Section 6(1) in its
amended form permitted the
Tribunal to have regard to a far greater variety
of
factors in making a costs
order than was permissible
under
the section, in its unamended form, as
interpreted in the Goodman
case.
In my Judgement, the
Tribunal correctly applied
Section 6 of the Act of 1979 as amended by
Section 3
of the Act of 1997 -
for, in my opinion, the
amendment
of the Act of 1997 was far more thorough
than that contended for by the Applicants. In
my
judgement, the amendment
affected by the Act of 1997
was
directed towards the difficulties imposed by
perhaps a perceived narrow interpretation of the
Act
of 1979 in the
Goodman decision.
Notwithstanding the careful qualification in
his
judgement in Haughey -v- Moriarty [1999] 3 IR 1 at
page 14, Geoghegan J. stated:
"In my opinion, power to award
costs
under the Act of 1997 is
confined to
instances of
non-cooperation with or
obstruction of the Tribunal but
that,
of course, would include
the adducing
of deliberately
false evidence and that
is why
the statutory provisions
specifically requires regard to be
had
to the findings of the
Tribunal as well
as all other
relevant matters.
However, I
merely express that view by
way
of obiter dicta because, in my
opinion, the issue of costs can
only
properly come before a High
Court by
way of some kind of
Judicial Review for
injunctive
proceedings after costs have
been
awarded."
I am satisfied in
this case, both as a matter of fact
and as a matter of law, that having regard to
the
undisputed primary findings
and the findings of
non-cooperation, obstruction and hindrance,
that
having regard to such and
all relevant matters
permitted
under the amended Section 6 of the Act of
1979 by Section 3 of the Act of 1997 were
considered
by the Tribunal. The
Court ought not to supplant
same
because the Court might have come to a different
opinion.
The judgement of McCarthy J. in Goodman's
case,
[1992] 2 ILRM 542 at p.605,
in dealing with Section 6
of the
Act of 1979 states:
"Section
6: The liability to pay costs
cannot depend upon the findings of
the
Tribunal as to the subject
matter of
the inquiry. When the
inquiry is in
respect of a single
disaster, then,
ordinarily, any
party permitted to be
represented
at the inquiry should have
their
costs paid out of public funds.
The whole or part of those costs may
be
disallowed by the Tribunal
because of
the conduct of or on
behalf of that
party at, during
or in connection with
the
inquiry. The expression "the
findings of the Tribunal" should
be
read as the findings as to the
conduct
of the parties at the
Tribunal. In all
other cases, the
allowance of costs at
public
expense lies within the
discretion of the Tribunal or,
where
appropriate, its
Chairman."
Without seeking to
provide a glossary or presumptive
commentary on the foregoing, I am mindful of
the
intendment of the Oireachtas
to amend Section 6 of
the Act of
1979, I see no difficulty in accepting
that even under Section 3 of the Act of 1979,
the
liability to pay costs cannot
exclusively depend on
the
findings of the Tribunal. Further, the eminence
of the Judge whose judgement, to which I
have
referred, can bear the
observation that the second
sentence of the extract is a matter of opinion -
which given the reference to "a single disaster",
(e.g. the Whiddy Island Inquiry, the
Stardust
Tribunal) is readily
understandable. The two
sentences
that follow referable to "those costs" are
in my view referable to the single disaster
inquiry,
whereas the final
sentence referable to "all other
cases", i.e. other than single issue/disaster
cases,
the awarding of costs lies
within the discretion of
the
Tribunal.
In the instance
case, to revert to the ruling of the
9th November 2004
"In spite of the serious findings
of
corruption on the part of some
of the
Applicants, I would have
considered
awarding a portion of
their costs had
they chosen to
fully and honestly
cooperate with
the Tribunal".
The instant case
was not a single issue disaster.
There was no limitation on the expression
"findings
of the Tribunal" in the
amending legislation and the
text
makes clear that despite or notwithstanding the
primary findings, there was a disposition to
award
the portion of the costs
sought and the reason such
award
was not made was because of the Applicants'
non-cooperation, (a benign approach to the
finding of
obstruction and
hindrance) i.e. because of the
conduct by or on behalf of that party at, during
or
in connection with the
inquiry. In my judgement, the
ruling as to costs falls within the terms
of
Section 6 of the Act of 1979
(as amended by Section 3
of the
Act of 1997) and to the extent relevant,
within the terms of the judgement of McCarthy
J.
In my judgement, the
determination by the Tribunal of
the application for costs, in the context in
which it
did, did not constitute
the administration of
justice.
"Any monetary loss incurred by the
engagement of these Applicants with the Tribunal
is
for them an unfortunate
consequence of the legitimate
right to hold such an inquiry." (per Geoghegan J.
in
Haughey -v- Moriarty). Furthermore, no evidence has
been adduced before me to warrant a judgement
that
the determination of
findings which were never made
by
the Tribunal, if this was intended to refer to the
benign view of obstruction and hindrance of
the
ruling on costs, I consider
to be spurious science.
(The
instant case is wholly distinguishable from
The State
(Irish Pharmaceutical Union) -v- Employment
Appeals Tribunal [1987] ILRM 36). If it was
intended
to mean as set forth in
the submissions that the
identity
of the Sole Member was the issue, the matter
is dealt with in the legislation, which makes it
clear, in addition to giving the Chairman of the
Tribunal power to have regard to the Second and
Third
Reports, the Chairman was
expressly not limited to
considering them in their findings and was
permitted
to have regard to all
other matters referred to in
Section 6 of the Act of 1979 as amended. In the
2nd
Report, paragraph 11.23,
17.15, 17.16 and 17.18 are
illustrative of the material properly available
to be
taken into account. The
case against the Tribunal in
my
judgement fails.
Constitutionality:
It is settled law that a court should not
pronounce
upon the constitutional
validity of an Act unless it
is
necessary to do so. Furthermore, in the instant
case, two further matters are to be noted before
the
invitation or application to
embark on this question
of
constitutionality should be undertaken.
1. The Applicants challenge to the
constitutionality
of Section 6(1)
of the Act of 1979 (as amended) is
advanced on the possibility that an order for
costs
may be made by the Tribunal
against them. That
challenge is
clearly premature and hypothetical as
pleaded in respect of the defences of the
Tribunal
and the submissions of
the State Respondents. That
defence is in response to the re-amended
Statement of
Claim. The Tribunal
has not considered, much less
ruled on the issue: The Tribunal has
clearly
indicated that it will
not make any decision on the
issue as to whether costs should be awarded
against
the Applicants without
affording the Applicants a
proper
opportunity to make submissions on the issue.
The Court is not in a position to anticipate how
the
Tribunal will deal with any
such application, either
in
principle or specifically in reference to the
Applicants. The Court must presume that the
Tribunal
will act within the
terms of the legislation and in
accordance with constitutional
justice.
It is in these
circumstances that the State
Defendants contend, in my judgement correctly,
that
the Applicants lack locus
standi to challenge the
constitutionality of Section 6(1) of the Act of
1979.
2. The fact that the
Applicants were refused their
costs by the ruling of 9th November 2004, it does
not
follow, by reason of that
fact, that they have locus
standi
to challenge the constitutionality of
Section 6(1) of the Act of 1979 as amended.
The
striking down of Section 6
would be of no benefit to
the
Applicants. Section 6 is the exclusive source of
the Tribunal's power to award costs,
(Goodman -v-
The
Minister for Finance
[1999] 3 IR 356). Therefore,
if
Section 6(1) is struck down as
being invalid having
regard to
the provisions of the constitution, there
remains no statutory or other basis on which
the
Applicants could recover
their costs.
It is in these
circumstances that the State
Defendants, correctly in my judgement, rely on
the
well established principles
(Todd -v- Murphy [1999] 2
IR)
that the Applicants lack standing to impugn
Section 6.
Notwithstanding the very careful and
learned
submissions of Counsel,
written and oral, on the
constitutional issue for which I am
genuinely
appreciative,
nonetheless in my judgment I ought not
to entertain the question of constitutionality as
it
is not necessary for the
determination of the case
before
the court.
END OF
JUDGMENT
Approved
TC
Smyth J.
MR. JUSTICE
SMYTH: That concludes my judgement
which I will hope to have
available to the parties in written form before
the
end of the week and I will
put the matter in this day
fortnight for mention with a view to any
submissions
that the parties may
wish to make on it. I regret it
has taken me some while to get around to dealing
with
this matter but the
exigencies of continued sittings
of the Court are not affording the opportunity of
a
more expeditious response when
a case is concluded.
Again, I do
not wish the opportunity to pass without
mentioning not just simply at the judgement but
to
those present and to those who
contributed my serious
appreciation of what they did. This was a case
of
enormous input from the
Counsel and their industry
and
their erudition was of great assistance to me.
Thank you very much.
END OF JUDGMENT
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