O'Brien v Moriarty

• Jurisdiction: Ireland
• Judge: Denham C.J.,Ms. Justice Iseult O'Malley,Mr. Justice William M. McKechnie
• Judgment Date: 12 July 2016
• Neutral Citation: [2016] IESC 36
• Docket Number: Appeal No. 38/2011,[S.C. No. 38 of 2011]
• Court: Supreme Court
• Date: 12 July 2016

Denham C.J.

McKechnie J.

Dunne J.

Charleton J.

O'Malley J.

Between/

Denis O'Brien

Applicant/Appellant

and

The Tribunal of Inquiry into payments to Messrs Charles Haughey

and

Michael Lowry, (sole member Mr. Justice Michael Moriarty)

Respondent

[2016] IESC 36

Denham C.J.

O'Malley J.

McKechnie J.

Appeal No. 38/2011

THE SUPREME COURT

Administrative & constitutional law – Tribunals – Evidence before Tribunal – Cross-examination of witness – Challenge to decision to prohibit cross-examination

Facts: The appellant was involved in the ongoing Tribunal of Inquiry into payments to Messrs Charles Haughey and Michael Lowry. During the proceedings of the Tribunal, the appellant sought to cross-examine a witness appearing before the Tribunal in respect of certain matters. Having been denied the opportunity to do so, he had sought judicial review before the High Court. The High Court had refused his application, and he now sought to challenge that refusal before the Supreme Court

Held by Chief Justice Denham, Justices Dunne and Charleton concurring, that the appeal would be dismissed. The evidence put before the Tribunal by the witness was favourable to the appellant, and as such it was unlikely that cross-examination by the appellant?s counsel would add anything to the Tribunal?s understanding of the matter save ?gilding the lily.? On that basis, the Tribunal Chairperson had exercised their case management powers fairly, and the High Court?s decision to refuse review of this was correct.

Justices McKechnie and O?Malley also handed down judgments in the matter.

Judgment delivered on the 12th day of July, 2016 by Denham C.J.

1 This is an appeal by Denis O'Brien, the applicant/appellant, referred to as ?the appellant?, against the judgment and order of the High Court (Hedigan J.), dated the 1st February, 2011.

2 The Tribunal of Inquiry into Payments to Messrs Charles Haughey and Michael Lowry (Sole Member Mr. Justice Moriarty) is the respondent, and is referred to as ?the respondent?.

Motion

3 The appellant brought a motion to the High Court seeking orders relating to the cross-examination of a witness before the respondent:-

?i. An Order of Certiorari quashing the decision of the respondent made on the 2nd day of November 2010 prohibiting the [appellant] through his legal representatives from cross-examining Professor Michael Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent and, (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent Tribunal which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010;

ii. A Declaration that the refusal by the respondent to permit the [appellant] through his legal representatives from cross-examining Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen, or his representatives attended with lawyers of the respondent Tribunal, and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent Tribunal which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010 amounts to a failure by the respondent to observe and protect the [appellant's] rights to fair procedure and to natural and constitutional justice;

iii. A Declaration that the refusal by the respondent to permit the [appellant] through his legal representatives to cross-examine Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent Tribunal, and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010 amounts to a breach of legitimate expectation;

iv. An Order of Mandamus directing the respondent to allow the [appellant] through his legal representatives to cross-examine Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent Tribunal and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent Tribunal which evidence was given by Professor Andersen to a public sitting of the Respondent on the 26th day of October 2010;

v. An Order of Certiorari quashing the decision of the respondent made on the 2nd day of November 2010 limiting the [appellant's] right through his legal representatives to cross-examine Professor Andersen to five hours which limitation prevented a full cross-examination of Professor Andersen by the [appellant];

vi. A Declaration that the respondent's decision of the 2nd day of November 2010 limiting [the appellant's] right through his legal representatives to cross-examine Professor Andersen to five hours amounts to a failure by the respondent to observe and protect the appellant's rights to fair procedures and to natural and constitutional justice;

vii. An injunction restraining the respondent from publishing Part 2 of his Final Report until such time as the [appellant] has been permitted to cross-examine Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010.?

Background

4 The appellant submitted that the evidence of Professor Andersen was critical to the outcome of the Tribunal as he was a central witness and could testify on the probity of the bids for the licence. He was Managing Director of Andersen Management International, the consultants engaged by the Department of Transport, Energy and Communications in April, 1995 to assist civil servants in assessing the six applications for the grant of the second GSM mobile phone licence. It was submitted that if his evidence were credible, it would illustrate that the process was above board and there could be no substance in the allegations made against the appellant that he was a party to a tainted process.

5 The appellant wished to cross-examine Professor Andersen in relation to meetings with the respondent's counsel and in relation to notes of such meetings. He sought to determine whether counsel for the respondent were biased against the Esat Digifone bid, and to determine whether Professor Andersen agreed that the notes of the meetings were accurate. It was submitted that if he could demonstrate evidence of bias on behalf of the respondent's counsel, this could have influenced the respondent as to how he was to weigh up the evidence.

6 On the 23rd March, 2010, the respondent made a ruling holding that it was inappropriate for its lawyers to be called to give evidence. The respondent reasoned that if it was to hear evidence from its lawyers concerning allegations of bias on their part and adjudicate thereon, the principle of nemo iudex in causa sua could be breached; it followed therefore that it would be unfair to hear evidence of bias against the respondent's lawyers where they were not entitled to respond.

7 Three weeks after this ruling, the appellant informed the respondent that Professor Andersen would give evidence. The appellant provided Professor Andersen with an indemnity in relation to his evidence. Professor Andersen agreed to give evidence from the period Tuesday the 26th October, 2010, to Friday the 5th November, 2010.

8 On Tuesday the 2nd November, 2010, the respondent made three rulings in relation to the cross-examination of Professor Andersen. In the first two rulings the respondent prohibited the appellant's counsel from cross-examining Professor Andersen in relation to (i) meetings and (ii) notes of meetings that Professor Andersen or his representatives attended with members of the respondent's legal team. In the third ruling, the respondent limited the time available to the appellant's counsel to cross-examine Professor Andersen.

High Court Order

9 The High Court reserved judgment in the matter. Then on the 1st February, 2011, the High Court ordered that the application be refused.

The High Court Judgment

10 In a reserved judgment the learned High Court judge set out his reasons for refusing the application.

Notice of Appeal

11 The appellant filed a notice of appeal on the 3rd February, 2011. The essence of the appeal is that the High Court erred in law and in fact in determining that the respondent was entitled to restrict the appellant's right to cross-examine Professor Andersen in terms of content and time, on a series of grounds. These grounds are set out in nineteen paragraphs.

Preliminary Issue – a Moot?

12 A preliminary issue has been raised. It was submitted by the respondent that the appeal is moot.

12 (i) On behalf of the respondent it was submitted that the appeal should be dismissed on the basis of the doctrine of mootness.

12 (ii) It was submitted that the objective of the proceedings was to seek various reliefs relating to the evidence of Professor Andersen for the purpose of delaying or preventing the...