O'Brien v Moriarty (No 2)

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 16 February 2006
• Date: 16 February 2006
• Docket Number: [2004 No. 817 JR] and

[2005] IEHC 343

[2006] IESC 6,

High Court

Supreme Court

[2004 No. 817 JR] and

[S.C. No. 370 of 2005]

O'Brien v. Moriarty (No. 2)

Denis O'Brien

Applicant

and

Mr. Justice Michael Moriarty (Sole Member of the Tribunal of Inquiry into payments to Messrs. Charles Haughey and Michael Lowry), Respondent and The Attorney General, Notice Party (No. 2)

Cases mentioned in this report:-

Bailey v. Flood (Unreported, High Court, Morris P., 6th March, 2000).

Bailey v. Flood (Unreported, Supreme Court, 14th April, 2000).

Brady v. Haughton [2005] IESC 54, [2006] 1 I.R. 1.

Flood v. Lawlor (Unreported, Supreme Court, 24th November, 2000).

Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542; [1995] I.L.R.M. 145.

In re Haughey [1971] I.R. 217.

Haughey v. Moriarty [1999] 3 I.R. 1.

Lawlor v. Flood [1999] 3 I.R. 107.

J. Murphy v. Flood [2000] 2 I.R. 298.

O'Brien v. Moriarty [2005] IESC 32, [2006] 2 I.R. 221; [2006] I.L.R.M. 321.

O'Callaghan v. Mahon [2005] IESC 9, [2006] 2 I.R. 32.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

Pinner v. Everett [1969] 1 W.L.R. 1266; [1969] 3 All E.R. 257.

R. v. Lord Saville of Newdigate, Ex p. A [2000] 1 W.L.R. 1855; [1999] 4 All E.R. 860.

Redmond v. Flood [1999] 3 I.R. 79; [1999] 1 I.L.R.M. 241.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

White v. Dublin City Council [2004] 1 I.R. 545; [2004] 2 I.L.R.M. 509.

Tribunal of inquiry - Terms of reference - Evidence - Payment - Injunction - Whether tribunal had sufficient evidence to proceed to full public inquiry - Whether decision of tribunal outside terms of reference - Whether decision of tribunal irrational - Tribunals (Evidence) Act 1921 (11 & 12 Geo 5., c. 7 ), s. 1(1).

Words and phrases - "a definite matter … of public importance" - Tribunals of Inquiry (Evidence) Act 1921 (11 & 12 Geo. 5, c. 7), s. 1(1).

Judicial review

The facts of the case have been summarised in the headnote and are more fully set out in the judgment of Abbott J., infra.

By motion on notice dated the 17th September, 2004, the applicant applied to the High Court (Herbert J.) for leave to apply by way of judicial review for an order of certiorari of a decision of the respondent dated the 27th May, 2004, to proceed in holding public hearings in respect of the Doncaster Rovers transaction and interlocutory injunctive relief. The matter was heard by the High Court (Herbert J.) over 8 days between the 21st September, 2004 and the 30th September, 2004. On the 30th September, 2004, the High Court (Herbert J.) refused the application for leave and the order was perfected on the 4th October, 2004. By notice of appeal dated the 4th October, 2005, the applicant appealed to the Supreme Court. Pursuant to O. 58, r. 13 of the Rules of the Superior Courts 1986, the court dealt with the application as an application for leave to apply for judicial review. The application was heard by the Supreme Court (Murray C.J., McGuinness, Hardiman, Fennelly and Kearns JJ.) on the 10th and 16th March, 2005 and leave was granted on two grounds on the 12th May, 2005 ([2005] IESC 32, [2006] 2 I.R. 221).

The application for judicial review was then heard by the High Court (Abbott J.) on the 12th, 13th, 14th, 15th and 19th July, 2005.

By notice of appeal, dated the 7th October, 2005, the applicant appealed to the Supreme Court (Murray C.J., Denham, Hardiman, Geoghegan and Fennelly JJ.). The appeal was heard on the 12th and 19th January, 2006.

The respondent sought to make inquiries as to whether there was any connection between a purchase of Doncaster Rovers Football Club in 1998 and Mr. Michael Lowry, who had been Minister for Transport, Energy and Communications at the time that the second G.S.M. licence was awarded to a company owned by the applicant.

The applicant applied to the High Court for relief by way of judicial review in respect of, inter alia, the decision of the respondent to proceed to public hearings in respect of the purchase on the grounds that: (i) the terms of reference of the respondent did not empower the respondent to investigate transactions taking place after the date of the establishment of the respondent (September, 1997) and giving rise to payments to Mr. Michael Lowry; (ii) it was not reasonable for the respondent to determine that there was sufficient evidence before the respondent at the time of that decision to warrant proceeding to a full public inquiry in respect of the matter of the involvement of Mr. Michael Lowry in the purchase.

Held by the High Court (Abbott J.), in refusing the application for judicial review, 1, that the terms of reference of the respondent did empower the respondent to proceed to hold public hearings in relation to the transaction, as the term "payment" was defined to include "money and any benefit in kind" and it should not be restrictively interpreted. A contract or arrangement might be made prior to the appointment of a tribunal but the payment, performance or execution of the arrangement or contract could or might take place after such appointment and the respondent was entitled to inquire into payments relating to a transaction which straddled the date upon which the tribunal was appointed.

2. That, the respondent could not inquire into payments which had a provenance entirely in the future, relative to the date of the resolution setting up the respondent as there were sound public policy considerations based on the exercise by citizens of their constitutional rights to earn a living, of association and other legal and constitutional rights and that, save in the most exceptional cases, the Constitution would not permit the effective supervision of citizens into the future by scrutiny and inquiry of a tribunal.

3. That there was sufficient evidence, in the sense of giving cause for further inquiry as opposed to evidence admissible in a court, to enable the respondent to proceed to public hearing.

4. That by reason of the fact that the respondent was chaired by a High Court Judge, the rights of any person in respect of whom an adverse conclusion might be made would be well and truly safe guarded.

The applicant appealed to the Supreme Court.

Held by the Supreme Court (Murray C.J., Denham, Geoghegan and Fennelly JJ.; Hardiman J. dissenting), in dismissing the appeal, 1, that, if the terms of reference of a tribunal were vague or ambiguous, it was for the tribunal to interpret them and the role of the court was not to interfere save where the decision was irrational or flew in the face of common sense. It was reasonable and open to the respondent to interpret his terms of reference as requiring him to inquire into whether a payment was made to Mr. Lowry during a period when he held public office as including the period after the adoption of the terms of reference, in circumstances giving rise to a reasonable inference that the motive for making the payment was connected to or had the potential to influence the discharge of his office.

Haughey v. Moriarty [1999] 3 I.R. 1 applied.The State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642 andO'Keeffe v. An Bord Pleanála[1993] 1 I.R. 39considered.

2. That a technical or legalistic approach to interpreting the terms of reference of a tribunal could give rise to the view that the inquiry had not been made into all relevant matters and would not serve the purpose of inquiries, which was to restore public confidence in democratic institutions.

3. That the applicant had failed to discharge the onus on him to show that it was not reasonable for the respondent to determine that there was sufficient evidence to proceed to public hearings in respect of the matter.

Flood v. Lawlor (Unreported, Supreme Court, 24th November, 2000);O'Keeffe v. An Bord Pleanála[1993] 1 I.R. 39 andThe State (Keegan) v. Stardust Compensation Tribunal[1986] I.R. 642 applied.

4. That it was not correct to construe the term "evidence" in the terms of reference as equivalent to evidence as understood in a court of law and it fell to be construed in the context of a tribunal as the information which was relevant, available and which was served on persons likely to be affected before it came before the respondent in oral evidence.

Brady v. Haughton [2005] IESC 54, [2006] 1 I.R. 1considered.

Per Fennelly J., that Mr. Lowry's tenure of office as Minister for Transport, Energy and Communications and his making of a decision in relation to the second G.S.M. licence, combined with other matters available to the Oireachtas, constituted a "definite matter" within the meaning of the Tribunals of Inquiry Act 1921, into which the respondent could inquire.

Per Hardiman J. dissenting, 1, that the question of whether this particular inquiry was within the terms of reference of the respondent must be resolved by a construction of those terms in their statutory context which required that a tribunal of inquiry could only inquire into definite matters which the Oireachtas regarded as being of urgent public importance.

2. That the word "definite" in the Act of 1921 was inconsistent with an interpretation of the terms of reference as mandating an open ended inquiry and that there was an imperative connection between the requirement of definiteness and that of expressed urgency, which was unattainable unless the matter was definite.

3. That it was for the Oireachtas to extend the terms of reference where it thought it expedient and logical to do so and it was not a matter for the courts or the respondent to decide whether that expansion should take place.

Cur. adv. vult.

Abbott J. 24th August, 2005

1 This is an action stemming from the Moriarty Tribunal which is currently investigating payments to Messrs. Charles Haughey and Michael Lowry, who were politicians at the time which may be material to the business of the tribunal. The applicant is a businessman who was the chairman of Esat Digifone...