O'Brien v Moriarty

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly,Mr. Justice Kearns
• Judgment Date: 12 May 2005
• Neutral Citation: [2005] IESC 32
• Date: 12 May 2005
• Court: Supreme Court
• Docket Number: [S.C. No. 448 of 2004]

[2005] IESC 32

THE SUPREME COURT

Murray CJ.

McGuinness J.

Hardiman J.

Fennelly J.

Kearns J.

[448/2004]

O'Brien v Mr Justice Moriarty

BETWEEN

DENIS O'BRIEN

APPELLANT

AND

MR. JUSTICE MICHAEL MORIARTY (THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY AND MICHAEL LOWRY)

RESPONDENT

AND

THE ATTORNEY GENERAL, REPRESENTING THE PUBLIC INTEREST

NOTICE PARTY

RSC O.58 r13

G v DPP 1994 1 IR 374

GORMAN v MIN ENVIRONMENT 2001 1 IR 306

MASS ENERGY LTD v BIRMINGHAM CITY COUNCIL 1994 ENV LR 298

R v COTSWOLD DISTRICT COUNCIL EX PARTE BARRINGTON PARISH COUNCIL 75 P & CR 515

R (PORTLAND PORT LTD) v WEYMOUTH & PORTLAND BOROUGH COUNCIL 2001 EWHC ADMIN 1171

R v DERBYSHIRE CO COUNCIL EX PARTE WOODS 1997 JPL 958

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979

ETHICS & PUBLIC OFFICE ACT 1995

GOODMAN INTERNATIONAL v HAMILTON 1992 2 IR 542

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

REDMOND v FLOOD 1999 3 IR 79 1999 1 ILRM 241

BAILEY & BOVALE DEVELOPMENTS LTD v FLOOD (PLANNING TRIBUNAL) UNREP MORRIS 6/3/2000 2000/2/457

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S2(a)

LAWLOR v FLOOD 1999 3 IR 107RSC O.84 r21(1)

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210

CUSSEN, STATE v BRENNAN 1981 IR 181

MCDONNELL v BRADY 2001 3 IR 588

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

R v STRATFORD-UPON-AVON DISTRICT COUNCIL EX-PARTE JACKSON 1985 1 WLR 1319

FLYNN v MID WESTERN HEALTH BOARD 1991 2 IR 223

IRISH TAKEOVER PANEL ACT 1997LLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000

HOUSING ACT 1966 S78(1)

ROADS ACT 1993 S49ROADS ACT 1993 S51

ENVIRONMENTAL PROTECTION AGENCY ACT 1992

CONCISE OXFORD ENGLISH DICTIONARY 11ED

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

O'CALLAGHAN v MAHON & ORS UNREP SUPREME 9.3.2005

ROYAL COMMISSION ON TRIBUNALS OF INQUIRY 1966 (#

SALMON COMMISSION)MAHON v AIR NEW ZEALAND 1984 3 AER 201

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 28

O'KEEFFE v BORD PLEANALA 1993 1 IR 39

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

G v DPP 1994 1 IR 374 2004/5/1143

C (D) v DPP UNREP O CAOIMH 18.5.2004 2004/5/1143

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(1)

JUDICIAL REVIEW: Leave

Appeal - Standard for granting leave by Supreme Court - Standard on inter partes application for leave in Supreme Court - Delay - Whether standard of arguable case applied - G v DPP [1994] 1 IR 374 applied and Gorman v Minister for the Environment [2001] 1 IR 306 considered - Whether application made promptly - Whether issue of delay in applying for leave treated by Supreme Court as appeal or de novo - Dekra Éireann Teo v Minister for the Environment [2003] 2 IR 270 followed; The State (Cussen) v. Brennan [1981] IR 181 distinguished - Rules of the Superior Courts 1986 (SI 15/1986), O 58, r 13 - Leave granted

TRIBUNALS: Tribunal of inquiry

Injunction - Terms of reference - Evidence - Whether arguable case decision of tribunal of inquiry outside terms of reference - Whether arguable case tribunal had sufficient evidence to proceed to full public inquiry - Whether arguable case decision of tribunal irrational - Whether injunction appropriate - Redmond v Flood [1999] 3 IR 79 followed - Tribunals of Inquiry (Evidence) Act 1921 (11 & 12 Geo, c 7) - Leave granted (448/2004 - Fennelly Kearns [Murray McGuinness Hardiman conc] - 12/5/2005) [2005] IESC 32

O'Brien v Mr Justice Moriarty

Facts: The applicant applied for leave to apply for judicial review of the decision of the Tribunal to proceed with a public hearing in respect of a particular issue and an interlocutory injunction restraining the Tribunal from proceeding with the hearing. The applicant contended that the terms of reference did not empower the Tribunal to investigate transactions taking place after the establishment of the Tribunal and giving rise to payments to Mr. Lowry and that there was not sufficient evidence to justify the Tribunal proceeding to public hearings.

Held by the Supreme Court (Murray CJ, McGuinness, Hardiman, Fennelly and Kearns JJ) in allowing the appeal and granting leave to apply for judicial review that there was an arguable case that, the terms of reference did not empower the Tribunal to investigate transactions taking place after the date of the establishment of the Tribunal and giving rise to payments to Mr. Lowry and at the date the Tribunal made its decision, it did not have sufficient evidence to justify public hearings. The balance of convenience favoured the grant of an interlocutory injunction.

Reporter: R.W.

1 JUDGMENT of Mr. Justice Kearns delivered the 12th day of May, 2005

2 I have read the judgment about to be delivered by Fennelly J in this case and agree with it to the extent that I also believe that an arguable case has been established on one ground, namely, that the investigation of a transaction subsequent in time to the establishment of the Tribunal may arguably be regarded as falling outside the temporal limits of its Terms of Reference.

3 However, I would be strongly of the view that this appeal should be dismissed on all other grounds, both on the grounds of delay in bringing the leave application and because no arguable case has been made out in relation to those other grounds.

4 Delay cannot, of course, preclude the granting of leave where an arguable case is made out that the Tribunal has acted ultra vires in embarking upon a line of inquiry which falls outside its Terms of Reference. Arguments as to whether the acquisition of Doncaster Rovers Football Club at a time subsequent to the establishment of the Tribunal can only be seen as jurisdictional in character and going to vires. However, the other complaints in this case concern the decision of the Tribunal to proceed to public sittings in circumstances where it is contended that there was insufficient evidence to warrant such decision and, secondly, that the Tribunal wrongly so decided when certain witnesses were unavailable. These are intra viresdecisions of the Tribunal where delay in bringing judicial review proceedings promptly may altogether disentitle an applicant from relief. Such I believe to be the case here.

(A) The Effects of Delay

5 The factual background in this matter is set out more fully in the judgment of Fennelly J and I will only refer to the underlying facts of this matter to the minimum extent necessary.

6 On the 11th January, 2003, an article by Colm Keena appeared in The Irish Times under the headline "Lowry linked to £4m deal by letter".

7 The article suggested that "new evidence" had emerged linking Mr. Michael Lowry to a Stg. £4m property deal involving the appellant in Britain. A letter seen by Mr. Keena concerning the planned purchase of Doncaster Rovers Football Stadium was stated in the article to suggest that a "key adviser to Mr. O'Brien" believed the former Minister had a "total involvement" in the deal.

8 The "key adviser" was Mr. Christopher Vaughan, a Northampton based solicitor, who had written the letter in question to Mr. Michael Lowry on the 25th September, 1998. Mr. Vaughan was then acting on behalf of Westferry Limited, a company owned by the O'Brien family, in relation to the purchase. The text of the letter was reproduced in the article and it included the following sentence:-

"I had not appreciated your total involvement in the Doncaster Rovers transaction and I am therefore enclosing a copy of my Completion Letter which was sent to Kevin Phelan, Paul May and Aidan Phelan on completion.""

9 The Irish Times newspaper article went on to state that:-

"Late last year a complaint was made to the police in London by representatives of Mr. O'Brien after the 1998 letter from Mr Vaughan to Mr. Lowry was produced during negotiations between representatives of Mr. O'Brien and Mr Richardson.

The two sides were taking part in a mediation process aimed at settling a dispute over final payments associated with the Doncaster deal. The letter was produced by Mr Richardson's side in an attempt to increase the pressure on Mr. O'Brien. Mr O'Brien's side does not know how representatives of Mr Richardson came into possession of the letter."

10 On the 13th January, 2003, the Tribunal solicitors wrote to the applicant requesting "at your earliest convenience and certainly within the next seven days",

11 (1) Details of the events which gave rise to such complaint.

12 (2) All matters and considerations which prompted the making of a complaint.

13 (3) The precise nature of the complaint made.

14 (4) The steps taken by the authorities to investigate such complaint.

15 (5) The outcome of such complaint or of any investigation instigated on foot of such complaint.

16 The Tribunal also wishes to obtain copies of all documents in your client's power, possession or procurement regarding the events surrounding the complaint, the complaint made, the steps taken to investigate such complaint and the outcome of such complaint."

17 Without going into any great detail concerning the correspondence which subsequently ensued, it is clear that the Tribunal, as and from January, 2003, was interested in investigating this transaction, Mr. Lowry's involvement (if any) in it and the circumstances in which a complaint had been made to the London police arising out of the production of this letter during the mediation hearing referred to.

18 The Tribunal pressed urgently for information both as to the source of the funds employed in the purchase of Doncaster Rovers Football Club and for documents and statements in relation to the transaction. In this regard, the Tribunal experienced considerable...