O'Brien -v- The Hon. Mr. Justice Moriarty, [2006] IESC 6 (2006)

Docket Number:370/05
Party Name:O'Brien, The Hon. Mr. Justice Moriarty
Judge:Fennelly J. / Denham J. / Hardiman J.
 
FREE EXCERPT

JUDGMENT BY: Fennelly J.

THE SUPREME COURT [370/2005]

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

BETWEENDENIS O'BRIEN Appellantand

MR. JUSTICE MICHAEL MORIARTY

(THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY

and MICHAEL LOWRY) Respondentand

THE ATTORNEY GENERAL,

REPRESENTING THE PUBLIC INTEREST Notice Party

JUDGMENT of Mr. Justice Fennelly delivered the 16th day of February, 2006.

By an order dated 12th May 2005, this court gave leave to the above-named Appellant to apply for an order of certiorari by way of application for judicial review of the decision of the Respondent to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club (hereinafter DRFC) and the purported "connection" of Michael Lowry to the said purchase on the grounds that

(a) the Terms of Reference of the Respondent do not empower it to investigate transactions taking place after the date of the establishment of the Tribunal and giving rise to payments to Mr Michael Lowry;

(b) it was not reasonable for the Respondent to determine that there was sufficient evidence before the Respondent at the time of that decision, namely 27th May 2004, to warrant proceeding to a full public inquiry in respect of the matter of the involvement of Mr Michael Lowry in the purchase of Doncaster Rovers Football Club.

By the same order this court refused the Appellant's application for such leave on a number of other grounds.

The Appellant's application for judicial review came on for hearing before Abbot J in the High Court over five days in July 2005. He delivered judgment on 6th October 2005 and refused the application on all grounds. The Appellant now appeals that decision.

The Appellant has made submissions before the Court relating both to the substantive and to the procedural provisions of the Terms of Reference of the Tribunal.

The Terms of Reference of the Tribunal are contained in the resolution passed by Dáil Eireann on 11th September 1997 and by Seanad Eireann on 18th September 1997 and set out in the Order of the Taoiseach of 26th September 1997 setting up the Tribunal. The Tribunal is interested in inquiring into the business affairs of the Appellant only insofar as "payments" as defined may have been made to Mr Michael Lowry. It has not been suggested that the Appellant has ever had any connection with Mr Charles Haughey. Two aspects of the Terms of Reference, one substantive and one procedural, are relevant to the present application. The relevant substantive part of the resolution is that it was resolved: "…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 inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance: a) to d) [concern Mr Haughey and are not relevant]

e) Whether any substantial payments were made directly or indirectly to Mr Michael Lowry …during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.

f) [concerns bank accounts of Mr Lowry and has not figured in the arguments on the appeal]g) Whether Mr Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision."

The term "payment," is defined so as to include "money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the Ethics in Public Office Act, 1995."

The procedural provisions of the Terms of Reference, raised in argument on the appeal, are:

"And that the Tribunal be requested to conduct its enquiries in the following manner, to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:- i. To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters,

ii. To enquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon,

iii. In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed…"

The present proceedings are relevant to paragraphs e) and g) of the Terms of Reference in the following way. Mr Lowry, was responsible in 1996, as Minister for Transport, Energy & Communications, for the grant on behalf of the State of the second mobile phone GSM license. The successful bidder was a company promoted by the Appellant, namely ESAT Digifone. For the purposes of this appeal, it has been assumed that the Appellant benefited from the grant of that license. Paragraph g) of the Terms of Reference requires the Tribunal to inquire whether Mr Lowry, insofar as the GSM transaction is concerned (though it is not expressly mentioned), made the relevant decision in order "to confer any benefit on any person making a payment referred to in paragraph (e)……" In short, it is an inquiry into whether the decision was made corruptly. Paragraph e) is focused on any "payments" which may have been made, and hence necessarily corruptly made, to a person benefiting from the decision.

The Appellant's case

Each of the Appellant's arguments calls for an interpretation of the Terms of Reference. Firstly, he says that, whatever its relevance to the Terms of Reference, the entire of the Doncaster Rovers Football Club transaction took place, as indeed appears to be the case, after the establishment of the Tribunal and after the date when the Terms of Reference were adopted. It was not and could not, it is said, have been intended to establish a public inquiry into what were, when the Tribunal was established, future events. Secondly, and, in effect alternatively, the Appellant argues that the Respondent, when he decided to proceed to hold public hearings in respect of the Doncaster Rovers Football Club matter, did not have any evidence sufficient to warrant such a decision. The decision was, therefore, unreasonable to the extent of being, for the purposes of judicial review, irrational.

The following is a brief summary of the material available to the Tribunal in respect of the Doncaster Rovers Football Club transaction. In 1998, the Appellant received a proposal from one Kevin Phelan for the purchase of the property of Doncaster Rovers Football Club, then in administrative receivership. Mr Kevin Phelan, who resides in the Northern Ireland, and who is apparently not available to the Tribunal as a witness, contacted the Appellant's agent, one Aidan Phelan. The two Phelans are not related. On the recommendation of Kevin Phelan, one Christopher Vaughan, an English solicitor was appointed to act for the purchaser in this transaction. Mr Vaughan acted for Mr Lowry in connection with other English property transactions, though Mr Vaughan has said that he first met Mr Lowry on 24th September 1998.

Doncaster Rovers Football Club was purchased in August 1998 by Westferry Limited, part of an O'Brien Family Trust, from Dinard Trading Limited and Shelter Trust Anstalt. A Mr Ken Richardson was described by Mr Vaughan as the "controller" of these entities. The Trust, via Westferry Limited, now owns all the Doncaster Rovers property. The transfer took place on 18th August 1998.

The Applicant gave details in his affidavit grounding his application for judicial review of the financing of this purchase. He says that Michael Lowry had no involvement, legal or beneficial, at any stage in the transaction. In any event, Mr Lowry had resigned from the Irish Government two years before the transaction, though he continued to be a member of the Dáil and remained so at the time of the transactions covered by the Doncaster Rovers investigations proposed by the Tribunal.

On 25th September 1998, Mr Christopher Vaughan, Solicitor, drafted a letter to be sent to Mr Lowry, discussing Doncaster Rovers in some detail. This letter is central to the Tribunal's decision to investigate the Doncaster Rovers Football Club transaction. Firstly, it was headed "Doncaster Rovers Football Limited." Secondly, it stated that certain letters concerning that transaction were enclosed, i.e., they were being sent to Mr Lowry. Thirdly, it discussed some of the outstanding problems regarding that transaction, including Mr Vaughan's fees. Finally, in it, Mr Vaughan stated, inter alia: "I had not appreciated your total involvement in the Doncaster Rovers Transaction…..." According to Mr Vaughan's later letter, that letter was neither sent by Mr Vaughan nor received by Mr Lowry. An article based on the draft letter appeared in the Irish Times on 11th January 2003. This triggered the Tribunal's interest in the matter. The Tribunal wrote to the Appellant making inquiries concerning any involvement of Mr Lowry in the Doncaster Rovers transaction.

In the week following the meeting of September...

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