Denis O'Brien v Mr Justice Michael Moriarty (No. 3)

• Jurisdiction: Ireland
• Judge: Mr. Justice Quirke
• Judgment Date: 21 December 2005
• Neutral Citation: [2005] IEHC 457
• Court: High Court
• Docket Number: [2004
• Date: 21 December 2005

[2005] IEHC 457

THE HIGH COURT

[No. 1115 JR/2005]

O'BRIEN v MORIARTY

JUDICIAL REVIEW

BETWEEN

DENIS O'BRIEN

APPLICANT

AND

MR. JUSTICE MICHAEL MORIARTY (The Sole Member of the Tribunal of Inquiry into payments to Messrs. Charles Haughey and Michael Lowry)

RESPONDENT

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

LAW REFORM COMMISSION PUBLIC INQUIRIES INCLUDING TRIBUNALS OF INQUIRY CP 22-2003

RSC O.36 r 41

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

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP SUPREME 9.03.2005

GEORGOPOLOUS v BEAUMONT HOSPITAL BOARD 1998 3 IR 132 1994 1 ILRM 58 1994 ILT 177

ERRINGTON v MIN FOR HEALTH 1935 1 KB 249

R v SECRETARY OF STATE FOR HEALTH EX PARTE US TOBACCO INTERNATIONAL INC 1992 1 ALL ER 212

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE v BORD PLEANALA 1993 1 IR 39 1992 ILRM 237

HAND v DUBLIN CORPORATION 1989 IR 26

HEANEY v IRELAND 1994 3 IR 593 1994 2 ILRM 420

BAILEY & BOVALE DEVELOPMENTS LTD v FLOOD (PLANNING TRIBUNAL) UNREP HIGH COURT MORRIS 06.03.2000 2000/2/457

RADIO LIMERICK ONE LTD v INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 IR 291 1997 2 ILRM 1

GOODMAN v HAMILTON 1993 3 IR 307

MAHON v NEW ZEALAND 1984 3 AER 201

TRIBUNALS

Tribunal of inquiry

Fair procedures - Experts - Duty of disclosure - Legality - Delay in cross-examination - Whether decision of tribunal irrational - Whether decisions of tribunal breach of applicant's rights -Whether tribunal had to disclose reservations- Whether the principle of proportionality applied in consideration of legality of tribunal decision - Whether tribunal unreasonable in not securing attendance of witness abroad -O'Callaghan v Mahon [2005] IESC 9(Unrep, SC, 9/3/2005) considered - Bailey v Flood (Unrep, Morris P, 6/3/2000) and Radio Limerick One Ltd v Independent Radio and Television Commission [1997] 2 IR 291applied - Goodman International v Hamilton(No 2) [1993] 3 IR 307 followed - Hand v Dublin Corporation [1989] IR 26; Heaney v Ireland [1994] 3 IR 593; Maguire v Ardagh [2000] 1 IR 385; Georgopolous v Beaumont Hospital Board [1998] 3 IR 132; Errington v Minister for Health [1935] 1 KB 249;O'Keeffe v An Bord Pleanála [1993] 1 IR 39;State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 and Reg v Health Secretary, ex p US Tobacco [1992] QB 353 distinguished - Tribunals of Inquiry(Evidence) Act 1921 (11 & 12 Geo 5, c 7 ) -Tribunals of Inquiry (Evidence)(Amendment) Act 1979 (No 3) - Relief refused (2005/1115JR - Quirke J -21/12/2005) [2005] IEHC 457, [2006] 2 IR474

O'Brien v Mr Justice Moriarty (No 3)

This was an application for various reliefs by way of judicial review, including declaratory and injunctive relief relating to: the involvement of Mr. Peter Bacon as an expert witness in the Tribunal; the alleged failure to take steps to bring witnesses before the Tribunal and to seek documents for the purposes of the Tribunal; and delay between the direct testimony of a witness and his cross-examination. With the agreement of the parties, the application for leave was treated as the application for the substantive relief.

Held by Quirke J. in refusing the relief sought that the applicant's right to fair procedures and constitutional justice had not been infringed.

Reporter: R.W.

1 JUDGMENT of the Honourable Mr. Justice Quirke delivered the 21st day of December, 2005.

2 This is an application for various reliefs by way of judicial review. With the agreement of the parties the application for leave to seek the relief has been treated by this Court as an application for the substantive relief claimed.

3 The reliefs sought can be divided into four categories. They are:

4 (1) Certain declaratory and injunctive reliefs arising out of (a) the alleged failure on the part of the respondent to disclose within a reasonable time to the applicant the existence of a report, (into what has been called the "second G.S.M. phone competition"), which the Tribunal received from Mr. Peter Bacon and Associates in March, 2003 and allegedly relied upon in the conduct of its investigative process between March, 2003 and September, 2005, (b) the stated intention of

5 the respondent to hear, (and possibly rely upon), evidence of Mr. Bacon although Mr. Bacon has not been appointed by the respondent as an assessor pursuant to the provisions of s. 2(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 and (c) the alleged reliance by the respondent upon assessments and reports provided by Mr. Peter Bacon and Associates in those circumstances.

6 (2) Certain declaratory and injunctive relief arising out of the alleged failure by the respondent to take appropriate and reasonable steps, either through the judicial system in Denmark or otherwise to bring Mr. Michael Anderson of Anderson Management International (hereafter "A.M.I") as a witness before the Tribunal.

7 (3) Certain declaratory relief arising out of the alleged failure on the part of the respondent to take any or any reasonable steps to bring certain persons who were at material times employed as executives or consultants with A.M.I. before the Tribunal and to seek relevant documents from A.M.I. for the purposes of the Tribunal.

8 (4) Declaratory relief arising out of a delay of some eighteen months which was allegedly authorised by the respondent between the direct testimony adduced by a witness, (Tony Boyle), and his cross-examination in respect of that testimony.

RELEVANT FACTS

9 1. The respondent is the sole member of a tribunal (hereafter "the Tribunal") established in September, 1997, pursuant to a resolution of the Oireachtas which deemed it "...expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunal 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" ... stated matters of urgent public importance.

10 Pursuant to its terms of reference the Tribunal was charged inter alia to inquire into the following;

11 (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..........

12 (d) 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 para (e) or any person who was the source of any money referred to in para (f) or on any person in return for such payments being made or procured or directed any other person to do such act or make such decision."

13 2. The applicant is a businessman who was at all material times chairman of Esat Digifone Ltd, the company which successfully competed for and secured the "second G.S.M. phone licence", from the Government in 1995.

14 3. The first public sittings of the Tribunal which dealt substantively with the terms of reference applicable to Mr. Michael Lowry commenced in June of 1999 and continued for a period of approximately five days. They resumed on 18th December, 1999, continued, (a), until March of 2001 and, (b), intermittently for a short period thereafter. In May, 2001, the Tribunal began hearing evidence in public concerning a number of financial and property transactions which appeared to involve Mr. Lowry and to connect him with certain payments and loans.

15 4. On 14th June, 2001, the Tribunal by way of an opening statement indicated an intention to conduct a wide ranging inquiry into the public offering of shares in ESAT Telecom in 1997. This investigation continued throughout the remainder of 2001 and the best part of 2002. It included the investigation of a transaction known as the "Doncaster Transaction" which was associated with the applicant.

16 A letter published in the Irish Times on the 25th September, 1998, suggested an involvement by Mr. Michael Lowry in the "Doncaster Transaction".

17 5. Mr. Michael Lowry was, in April, 1995 and at the times material to the Tribunal's investigation, the Minister for Transport, Energy and Communications. He was, accordingly, the Minister responsible for the award of the second G.S.M. phone licence in 1995.

18 6. Because it appeared to the Tribunal that both the applicant and Mr. Michael Lowry appeared to be connected with the award of the second G.S.M. phone licence and with a series of financial and property transactions the Tribunal commenced what is described as "extensive inquiries into the G.S.M. 2 process" on 3rd December, 2002.

19 The Tribunal has now heard evidence about the process from 62 witnesses over 130 days of public sittings. It has also carried out extensive private investigations into the process.

20 7. A dedicated project team (hereafter the "PTGSM.") had been established by the Irish Government. It was charged with responsibility for designing and implementing an evaluation process intended to enable the Irish Government to choose the most suitable candidate for the award of the "second G.S.M. phone licence". The successful candidate emerging from that evaluation process would then be entitled to negotiate for the award of the licence.

21 The members of the PTGSM were senior civil servants drawn from the Department of Transport, Energy and Communications and from the Department of...