Bertie Ahern v Judge Alan Mahon and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 08 May 2008
• Neutral Citation: [2008] IEHC 119
• Date: 08 May 2008
• Court: High Court
• Docket Number: [2008

Ahern v Judge Mahon & Ors

JUDICIAL REVIEW

BEFORE

BETWEEN

BERTIE AHERN

APPLICANT

AND

HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FLAHERTY, HIS HONOUR JUDGE GERALD KEYES MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS

[2008] IEHC 119

THE PRESIDENT

MR. JUSTICE KELLY

MR. JUSTICE O'NEILL

No. 150 J.R./2008

THE HIGH COURT

DIVISIONAL COURT

CONSTITUTIONAL LAW

Parliamentary privilege

Tribunal of inquiry - Discussions - Prior statements made to media - Statements made in Dáil Éireann - Inconsistent statements - Whether tribunal had power to question about statements made in Dáil Éireann - Attorney General v Hamilton (No 2) [1993] 3 IR 227 and Prebble v Television New Zealand [1995] 1 AC 321 considered - Constitution of Ireland 1937, Article 15.13 - Plaintiff granted relief (2008/150JR - Div HC - 8/5/2008) [2008] IEHC 119

Ahern v Judge Mahon

EVIDENCE

Privilege

Legal professional privilege - Litigation privilege - Expert witness - Tribunal witness - Purpose of documents - Discovery - Waiver - Personal rights - Right to good name - Whether personal conduct under examination - In Re Haughey [1971] IR 217, Maguire v Ardagh [2002] 1 IR 385, Re L [1997] 1 AC 16, Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, Duncan v Governor of Portlaoise Prison [1997] 1 IR 558, Miley v Flood [2001] 2 IR 51, R v Derby Magistrates Court, Ex parte B [1996] 1 AC 487 considered; Hannigan v DPP [2001] 1 IR 378 distinguished - Tribunals of Inquiry (Evidence) Act 1921 (11 Geo 5, c 7) - Tribunals of Inquiry (Evidence) (Amendment) Act 1997 (No 42) - Constitution of Ireland 1937, Article 40.3 - Plaintiff granted relief (2008/150JR - Div HC - 8/5/2008) [2008] IEHC 119

Ahern v Judge Mahon

The applicant was a member of Dáil Éireann and was previously the Taoiseach. The respondents were Circuit Court judges who were the members of the Tribunal of Inquiry into Certain Planning Matters and Payments ("the Tribunal"). The applicant applied for judicial review of aspects of the Tribunal's dealings with the applicant whose affairs, insofar as they fell within the mandate of the Tribunal, were under investigation by it. The issues concerned were: (a) The Tribunal's entitlement to examine the applicant in respect of statements made by him in the National Parliament; and (b) the applicant's entitlement to claim privilege in respect of communications between his legal advisors and an expert retained by him for the purpose of the Tribunal's proceedings.

Held by the Divisional Court (The President, Kelly and O'Neill JJ) in granting the relief sought that the applicant was entitled to a declaration that the Tribunal did not have power to question him in respect of statements made by him in Dáil Éireann or to cause or permit such questioning. The applicant was also entitled to a declaration that he was entitled to claim legal professional privilege in respect of the documents and certiorari of the determinations of the Tribunal which required production of those documents.

Reporter: R.W.

CONSTITUTION ART 15.13

DOCUMENTARY EVIDENCE ACT 1925

CONSTITUTION ART 15.12

BILL OF RIGHTS 1688 ART 9

CONSTITUTION OF THE IRISH FREE STATE (SAORSTAT EIREANN) 1922 ART 18

AG v HAMILTON (NO 2) 1993 3 IR 227

HOWLIN v MORRIS 2006 2 IR 321

PREBBLE v TELEVISION NEW ZEALAND LTD 1994 3 AER 407

RSC FORM 10 APPENDIX C

DUNCAN v GOVERNOR OF PORTLAOISE 1997 1 IR 558

R v DERBY MAGISTRATES COURT EX-PARTE B 1996 1 AC 487

MILEY v FLOOD (PLANNING TRIBUNAL) & LAW SOCIETY OF IRELAND 2001 2 IR 50 2001 1 ILRM 489 2003/36/8641

PASSMORE PRIVILEGE 2ED 2006 PARA 3.109

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(3)

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(4)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S2

HAUGHEY, IN RE 1971 IR 217

CONSTITUTION ART 40.3

MCDONALD v BORD NA GCON 1965 IR 217

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385 2001/14/3995

MARTIN & DOORLEY v LEGAL AID BOARD & ORS UNREP LAFFOY 23.2.2007 2007 IEHC 76

L. (A MINOR) (POLICE INVESTIGATION: PRIVILEGE), RE 1997 AC 16

CHILDREN ACT 1989 PART IV (UK)

THREE RIVERS DISTRICT COUNCIL & ORS v GOVERNOR & COMPANY OF THE BANK OF ENGLAND (No 6) 2005 1 AC 610

MATTHEWS & MALEK DISCLOSURE

HANNIGAN v DPP & SMITHWICK 2001 1 IR 378 2002 1 ILRM 48 2001/11/3156

1 JUDGMENT of Mr. Justice Kellydelivered on the 8th day of May, 2008

Introduction

2 The applicant (Mr. Ahern) is a member of Dáil Éireann and was, until earlier this week, the Taoiseach.

3 The respondents are Circuit Court judges who are the members of the Tribunal of Inquiry into Certain Planning Matters and Payments (the Tribunal). The Tribunal was established in November, 1997.

4 When leave was sought to commence these proceedings on the 11 ^th February, 2008, three issues were raised by Mr. Ahern for consideration by the court. All of them related to aspects of the Tribunal's dealings with Mr. Ahern whose affairs, insofar as they fall within the mandate of the Tribunal, are under investigation by it.

5 The three issues concerned;

6 (a) The Tribunal's entitlement to examine Mr. Ahern in respect of statements made by him in the National Parliament (the Parliamentary Privilege Issue);

7 (b) Mr. Ahern's entitlement to claim privilege in respect of communications between his legal advisors and an expert retained by him for the purpose of the Tribunal's proceedings (the Legal Professional Privilege Issue); and

8 (c) The obligation of the Tribunal to provide Mr. Ahern with certain documents identified at para. (D) 11 of the statement grounding the application for judicial review (the Disclosure issue).

9 Leave was given for all three issues to be the subject of this judicial review.

10 On the opening day of the hearing, the Court was informed that documents falling within the ambit of para. (D) 11 of the Statement of Grounds had that morning been furnished by the Tribunal to Mr. Ahern's solicitor. The documents consisted of 65 pages of bank data and figures together with a narrative report and 50 pages of computer programming assessment together with a report. That material was reviewed by Mr. Ahern's counsel who were satisfied with it and as a result indicated that no relief was being sought on the Disclosure issue.

11 I will now proceed to consider the two remaining issues.

The Parliamentary Privilege Issue

(A) Background

12 In order to understand how this issue arises it is necessary to summarise the relevant facts.

13 The Tribunal is enquiring into the nature and sources of certain lodgements that were made by Mr. Ahern or persons with whom he is associated to bank accounts held by him or by persons with whom he is associated. The Tribunal sought information concerning loans provided by specified persons to Mr. Ahern in 1993 and 1994. That information was sought as part of the private phase of the Tribunal's inquiries.

14 Those loans became the subject of newspaper publicity in September, 2006. The publicity arose because of unauthorised disclosureby unknown persons of confidential matter generated during the course of the Tribunal's private enquiries.

15 Following that publicity, Mr. Ahern made statements to the media and in the Dáil on the topic. Four such Dáil statements of the 27 ^th September, 3 ^rd October, 4 ^th October and 5 ^th October, 2006 are of interest to the Tribunal.

16 They figured in correspondence between Mr. Ahern's solicitors and those of the Tribunal commencing in October, 2006 and ending in December, 2006. That correspondence demonstrates a difference between the parties on what the Tribunal might be entitled to do concerning these utterances in the Dáil in circumstances where it was of the view that Mr. Ahern had been "factually erroneous" in the statements made by him in that chamber and elsewhere.

17 It is not necessary to rehearse this correspondence in detail. It is sufficient to state that Mr. Ahern believed that the Tribunal was seeking to interrogate him about his Dáil statements in breach of Article 15.13 of the Constitution whilst the Tribunal took a different view.

18 The correspondence petered out with a letter from the Tribunal of the 20 ^th December, 2006, which inter alia said:

"The Tribunal reiterates that it is not conducting any interrogation of Mr. Ahern in relation to his Dáil statement, or engaging in any unconstitutional activity. It has drawnMr. Ahern's attention to matters which it believes have been factually erroneous in the context of public statements made by him in the Dáil or elsewhere. It is noted that he has chosen not to correct any of the matters drawn to his attention by the Tribunal, including those matters in respect of which he acknowledges he was factually incorrect."

19 Nothing happened for a further year. Mr. Ahern was scheduled to give evidence to the Tribunal on the 20 ^th December, 2007. Three days beforehand, papers were sent to his solicitors by the Tribunal which included extracts from the records of the Dáil for the four dates already mentioned. Mr. Ahern's solicitors reacted by writing a letter on the 19 ^th December, 2007 which stated inter alia:

"My client continues to assert that he is not amenable to the Tribunal in respect of statements made in the Dáil.

In the circumstances, I require confirmation that no questions will be asked of my client regarding statements made in the Dáil by him and that there would be no reference to these statements by the Tribunal whether directly or indirectly and regardless of the document containing any such references."

20 The Tribunal responded by letter on the same day. It said inter alia:

"The principle established in Attorney General v. Hamilton (No. 2) [1993] 3 I.R. 227, is that a deputy is not amenable to any...