Dermot Desmond v Mr. Justice Michael Moriarty

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 17 February 2012
• Neutral Citation: [2012] IEHC 202
• Court: High Court
• Date: 17 February 2012

[2012] IEHC 202

THE HIGH COURT

[No. 5159 P./2012]

Desmond v Moriarty Tribunal

BETWEEN

DERMOT DESMOND

PLAINTIFF

AND

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

DEFENDANT

RSC O.19 r28

RSC O.19 r27

DESMOND v MORIARTY 2004 1 IR 334

AER RIANTA CPT v RYANAIR LTD 2004 1 IR 506 2004/1/158 2004 IESC 23

KENNY v TRINITY COLLEGE DUBLIN & DUBLIN CITY COUNCIL 2008 2 IR 40 2007/32/6662 2007 IESC 42

TASSAN DIN & ARBORFIELD LTD v BANCO AMBROSIANO SPA & ORS 1991 1 IR 569 1991/2/334

AMPTHILL PEERAGE, IN RE 1977 AC 547 1976 2 WLR 777 1976 2 AER 411

BULA HOLDINGS & ORS v ROCHE & ORS UNREP SUPREME 3.4.2009 2009/6/1366 2009 IESC 36

ADAMS & ORS v MIN FOR JUSTICE & ORS 2001 3 IR 53 2001 2 ILRM 452 2001/1/7

O SIODHACHAIN & ANOR v O'MAHONY & ANOR UNREP SUPREME 7.12.2001 2001/20/54327

FAY v TEGRAL PIPES LTD & ORS 2005 2 IR 261 2005/25/5119 2005 IESC 34

BARRY v BUCKLEY 1981 IR 306 1981/9/1485

SUN FAT CHAN v OSSEOUS LTD 1992 1 IR 425 1991/10/2412

JODIFERN LTD v FITZGERALD 2000 3 IR 321 1999/14/4003

RIORDAN v HAMILTON & ORS UNREP SUPREME 9.10.2002 2002/24/6127

AER RIANTA CPT v RYANAIR LTD 2004 1 IR 506 2004/1/158 2004 IESC 23

GREENDALE DEVELOPMENTS LTD (IN LIQUIDATION), IN RE; FAGAN & MALONE v MCQUAID 2000 2 IR 514 2001 1 ILRM 161 2000/9/3223

P (L) v P (M) 2002 1 IR 219 2001/20/5450

R v BOW STREET METROPOLITAN STIPENDIARY MAGISTRATE & ORS, EX PARTE PINOCHET UGARTE (NO 2) 2000 1 AC 119 1999 2 WLR 272 1999 1 AER 577

CONSTITUTION ART 34

CONSTITUTION ART 34.4.6

BULA LTD & ORS v TARA MINES LTD & ORS (NO 6) 2000 4 IR 412 2000/3/925

KENNY v TRINITY COLLEGE DUBLIN UNREP SUPREME 10.4.2008 2008/33/7216 2008 IESC 18

Tribunals and inquires - Judicial review - Moriarty Tribunal of Inquiry - Plaintiff seeking to set aside earlier decisions of High Court and Supreme Court -Plaintiff claiming misleading evidence submitted to those Courts

Facts: The defendant was the sole member of the Moriarty Tribunal "the Tribunal") investigating payments to a number of politicians. As part of the Tribunal's work, it sought to examine a report into the affairs of a number of companies. The plaintiff sought judicial review of this matter before the High Court and later the Supreme Court. His efforts were unsuccessful, and he now sought to have those decisions overturned contending misleading evidence was provided by the Tribunal in the course of those hearings. He also claimed the Tribunal had failed to disclose material.

The defendant now sought to have the plaintiff's claim out, submitting inter alia it disclosed no reasonable claim of action.

Held by Dunne J, that a number of authorities were relevant in a case where judgments were sought to be set aside on the basis of fraud, such as Fennelly J's ruling in Kenny v Trinity College Dublin [2008] 2 IR 40.. The task in the instant case was to apply the principles contained in the authorities to the facts.

Whilst it appeared certain averments by the solicitor of the tribunal were misleading as to the nature of an opinion provided to state bodies, it was not apparent that this was due to deliberate dishonesty. The fact the averments were simply misleading did not met the requirement set out in the Kenny case. Kenny v Trinity College Dublin [2008] 2 IR 40 followed.

Whilst failing to meet the Kenny case requirement was sufficient to determine the matter, the Court further commented that in any event there was no suggestion that the averments had in any way affected the decisions of the High Court and Supreme Court. The plaintiff's claim would therefore be struck out.

1 JUDGMENT of Ms. Justice Dunne delivered the 17th day of February 2012

2 This is an application on behalf of the defendant by way of notice of motion seeking the following relief:-

3 (a) An order pursuant to O. 19, r. 28 of the Rules of the Superior Courts striking out or dismissing the plaintiff's claims on the grounds that the statement of claim delivered herein discloses no reasonable cause of action and/or the action is shown by the pleadings to be frivolous and/or vexatious;

4 (b) Further or in the alternative, an order pursuant to the inherent jurisdiction of the court dismissing or, alternatively, striking out the plaintiff's claims against the defendants on the grounds that the proceedings have no reasonable prospect of success, are bound to fail and are an abuse of the process of the court;

5 (c) Further or in the alternative, an order pursuant to O. 19, r. 27 of the Rules of the Superior Courts striking out the statement of claim in its entirety on the grounds that it contains matters which are unnecessary and/or scandalous and which may tend to prejudice, embarrass or delay the fair trial of the action.

6 The plaintiff in these proceedings previously commenced judicial review proceedings against the defendant bearing the title "Dermot Desmond, Applicant and Mr. Justice Michael Moriarty (Sole Member of the Tribunal of Inquiry into Payments to Messrs Charles Haughey and Michael Lowry) Respondent, Record No. 2003 No. 315 J.R." (hereinafter referred to as "the Judicial Review Proceedings") for the purpose of seeking to prevent the defendant from introducing the Report of John A. Glackin into the affairs of Chestvale Properties Limited and Hoddle Investments Limited (hereinafter referred to as "the Glackin Report" into evidence at the Tribunal and to question witnesses in relation to the report. The plaintiff in the judicial review proceedings sought the reliefs claimed therein on the grounds, inter alia, that the Glackin Report concerned issues which fell outside the terms of reference of the Tribunal and that, as such, any inquiry into or investigation of the Glackin Report was ultra vires the defendant. The plaintiff was unsuccessful before the High Court in the judicial review proceedings and appealed to the Supreme Court. His appeal was rejected by the Supreme Court on the 20 ^th January, 2004.

7 The plaintiff in these proceedings now seeks to have the judgments of the High Court delivered on the 8 ^th August, 2003, (Quirke J.) and of the Supreme Court delivered on the 20 ^th January, 2004, set aside and seeks further related and ancillary relief. The basis upon which the relief is sought is the plaintiff's contention that the defendant caused or permitted misleading, untrue and inaccurate evidence to be given to the High Court and the Supreme Court such that the High Court and the Supreme Court refused the plaintiff's application for judicial review. It is contended in those circumstances that the judgments and orders of the High Court and the Supreme Court "were obtained by fraud on the part of the defendant and his servants or agents". It is further pleaded that the failure by the defendant to make disclosure of material described in the statement of claim amounted to a fundamental breach of principles of fair procedures which went to the heart of the evidence led by or on his behalf before the High Court and the Supreme Court. On that basis it is contended that the judgments and orders of the High Court and the Supreme Court are a nullity and ought to be impeached and set aside. Essentially, it is contended that an affidavit sworn by John Davis on behalf of the defendant on the 22 ^nd May, 2003, in the judicial review proceedings was misleading, untrue and inaccurate by reason of wilful or reckless misstatements contained therein and wilful or reckless omissions therefrom.

Background

8 Some information as to the background is necessary before considering the legal issues. The Tribunal was inquiring into the circumstances surrounding, inter alia, the competition for the second GSM mobile phone licence. An application was made for the licence by the ESAT consortium. After the application was made, the plaintiff herein became a member of the ESAT consortium through his company, International Investment and Underwriting Limited ("IIU"). The ESAT consortium was ultimately successful in its application. Following the decision to award the exclusive right to negotiate with the Department for the award of the second GSM mobile telephone licence in October 1995, the Department of Transport Energy and Communications wrote to the Office of the Attorney General requesting legal advice in relation to changes in the composition of the ESAT consortium. It appears that advices were furnished to the Office of the Attorney General on the 9 ^th May, 1996, by Richard Nesbitt S.C. to the effect that a change in the ownership of the ESAT consortium should not affect the decision to grant the second GSM mobile telephone licence to the consortium unless the change in ownership would in some way compromise the service to be provided by the consortium. That opinion was communicated to the Department around the 13 ^th May, 1996. A few days later on the 16 ^th May, 1996, the second GSM mobile telephone licence was awarded to ESAT.

9 Subsequently, the Tribunal, in the course of its inquiries, sought information in relation to the opinion of Mr. Nesbitt S.C. These inquiries took place between June 2002 and December 2002, when the Tribunal commenced its second module. In the opening statement in respect of the second module, it appeared that the Tribunal took the view that the opinion furnished by Mr. Nesbitt S.C. only addressed the question of changes in the consortium after the GSM licence had been granted; that the Department had not pursued the issue of changes in the consortium prior to the award of the licence and that the Department continued to be concerned about the ownership issue in May 1996. Ultimately a copy of the opinion furnished by Mr. Nesbitt to the Department was made available to the plaintiff in April 2009 and in March 2010 it was acknowledged by the defendant herein, in his...