Desmond v Glackin (No. 1)

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [1991 No. 288 J.R.]
• Court: High Court

High Court

[1991 No. 288 J.R.]

Desmond v. Glackin (No. 1)

Dermot Desmond and Dedeir

Applicants

and

John A. Glackin, The Minister for Industry and Commerce, Ireland and The Attorney General, Respondents (No. 1)

Cases mentioned in this report:—

Attorney General v. Times Newspapers Ltd. [1974] A.C. 273; [1973] 3 W.L.R. 298; [1973] 3 All E.R. 54; 117 S.J. 617.

Attorney General for New South Wales v. John Fairfax & Sons Ltd.[1980] 1 N.S.W.L.R. 362.

Ex parte Bread Manufacturers Ltd. (1937) 37 S.R. (N.S.W.) 242.

Cullen v. Toibín and Magill Publications (Holdings) Ltd. [1984] I.L.R.M. 577.

Ex parte Dawson [1961] S.R. (N.S.W.) 573.

In re Ó Laighléis ó laighléis [1960] I.R. 93.

The People (Director of Public Prosecutions) v. Conroy [1986] I.R. 460; [1983] I.L.R.M. 4.

R. v. Davies, ex parte Delbert-Evans [1945] K.B. 435; 114 L.J.K.B. 417; sub. nom Delbert-Evans v. Davies and Watson [1945] 2 All E.R. 167; 173 L.T. 289; 61 T.L.R. 428; 89 Sol. Jo. 446.

The Saint James' Evening Post Case: Roach v. Garvan (or Hall)(1742) 2 Atk. 469.

State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412.

The Sunday Times v. The United Kingdom (1979) 2 E.H.R.R. 245.

Criminal law - Contempt of court - Scandalising the court - Interference with matters sub judice - Proceedings instituted by applicant - Ex parte application - Affidavit containing serious allegations against respondents - Reported by media - Utterances of second respondent during radio interview - Whether scandalised the court - Whether tended to prejudice the outcome of the proceedings - Whether exposed the applicant to public obloquy.

Notice of motion.

The facts are summarised in the headnote and are fully set out in the judgment, post.

By notice of motion dated the 18th December, 1991, the applicants applied for, inter alia, the following reliefs:—

• 1. An order pursuant to O. 44, r. 1 of the Rules of the Superior Courts, 1986, that the first and second respondents should be attached for contempt of court.

• 2. In the alternative, and order pursuant to O. 44, r. 6 of the Rules that the first and second respondents should be committed for contempt of court.

• 3. An injunction restraining the first and second respondents from making any further public comment on the proceedings or any comment as to the motivation or justification of the first applicant for bringing such proceedings.

Order 44, r. 1 of the Rules of the Superior Courts, 1986, provides:—

"An order of attachment shall direct that the person against whom the order is directed shall be brought before the Court to answer the contempt in respect of which the order is issued . . ."

Order 44, r. 6 of the Rules provides:—

"The Court may make an order of attachment where the application is one for committal, and vice versa."

The first respondent was an inspector appointed by the second respondent pursuant to the provisions of s. 14 of the Companies Act, 1990, to investigate and report upon the affairs of certain companies which had been involved in the purchase in 1989 of a site in Ballsbridge, Co. Dublin, for a price of £4 million and its sale in 1990 to Telecom Éireann éireannfor £9.4 million, which transactions had been the subject of considerable public interest.

The first applicant had been closely involved in negotiations for both transactions. The first respondent sought information from him for the purposes of his investigation, and questioned him on four occasions in November and December, 1991. On the 16th October, 1991, the applicants applied to the High Court for leave to apply by way of judicial review for, inter alia, an order of certiorari quashing the appointment of the first respondent and an order prohibiting the first respondent from continuing his inquiries while seeking information in relation to the personal business affairs of the applicants. Leave to apply was granted by the High Court (Flood J.), together with an injunction restraining the first respondent from, inter alia, continuing his investigation into the companies and further questioning the first applicant until the determination of the judicial review proceedings. [The outcome of these proceedings is reported at [1993] 3 I.R. 67.]

The next day, the national newspapers contained full reports of the application and its outcome, together with extracts from the first applicant's grounding affidavit and a statement by a public relations body acting on his behalf. The extracts from the affidavit contained serious allegations against the first and second respondents. On the same day the second respondent took part in a radio interview in the course of which he made certain utterances in relation to the ex parte application.

The applicants applied to the High Court for an order for the attachment of the second respondent for contempt of court. In the High Court it was alleged, first, that the second respondent was guilty of scandalising the court by having, in the course of the interview, criticised the court for having purportedly accepted at face value allegations made by the applicants against the respondents. Secondly, it was alleged that the second respondent was guilty of contempt by way of interference in matters which were sub judice by making utterances which (i) tended to prejudice the outcome of the judicial review proceedings, and (ii) disparaged the first applicant, exposing him thereby to public obloquy.

Held by O'Hanlon J., in dismissing the application, 1, that while the statements relied upon by the applicants as amounting to the offence of scandalising the court were made while judicial review proceedings were pending, the statements were made about a decision of the High Court, albeit one made at an early stage in the proceedings, and ought, accordingly, to be accorded the same latitude as was customarily allowed in relation to comments made about concluded cases.

2. That in making the comments the second respondent did not exceed the bounds of fair and permissible criticism of that decision, and that the offence of scandalising the court had not, accordingly, been established on the evidence.

State (Director of Public Prosecutions) v. Walsh [1981] I.R. 412 considered.

3. That the utterances were not calculated to render it difficult for a judge of the High Court to decide in an objective and unbiased manner the legal issues arising in the pending judicial review proceedings, having regard to the fact that the circumstances giving rise to the applicants' case had been the subject of numerous articles and reports in the news media, all of which would have to be excluded from the mind of the judge hearing the case.

Cullen v. Toibín [1984] I.L.R.M. 577, R. v. Davies, ex parte Delbert-Evans[1945] K.B. 435 and The People (Director of Public Prosecutions) v. Conroy[1986] I.R. 460considered.

4. That it would be in conflict with basic principles of fair play if serious allegations could be made against the respondents in court on an ex parte basis, and then reported in the news media accompanied by the commentary of the first applicant's public relations advisers, without affording a right to the respondents to reply in equally forthright terms in defence of their own good name and reputation.

5. That the case was one which was concerned with an ongoing matter of public interest which had occupied the mind of the public for many months. Having regard to this fact, and the fact that the second respondent's utterances had been made in response to serious allegations made against him by the first applicant, the case was an exceptional one in which the law must strike a balance in favour of freedom of discussion.

Dicta of Lord Reid and Lord Simon of Glaisdale in Attorney General v. Times Newspapers Ltd.[1974] A.C. 273 approved.

6. That where a court was in doubt as to whether or not the conduct complained of amounted to contempt of court, the complaint must fail.

Dictum of Lord Morris in Attorney General v. Times Newspapers Ltd.[1974] A.C. 273 approved.

Cur. adv. vult.

O'Hanlon J.

1. Factual background to the application

This is an application by the applicants for an order pursuant to O. 44, r. 1 of the Rules of the Superior Courts, 1986, that the second respondent, the Minister for Industry and Commerce, Mr. Desmond O'Malley, be attached for contempt of court. A similar application brought against the first respondent has already been disposed of when the matter came on for hearing.

The background to the application to attach for contempt may be summarised in the following manner. It is linked with the acquisition by Telecom Éireann éireann in the month of June, 1990, of the Johnston Mooney & O'Brien site in Ballsbridge, Dublin, which became the subject of considerable public controversy when it emerged that the property had changed hands for a sum of £4 million the previous year, whereas the consideration for the sale to Telecom Éireann éireann was £9.4 million.

A good deal of speculation arose as to the identity of the parties who had benefited by what appeared to have been a spectacular financial coup and, as it was considered to be a matter of public concern, the Minister for Tourism, Transport and Communications on the 14th September, 1991, initiated a formal inquiry into all matters connected with the purchase of the site by Telecom Éireann éireann. The committee of inquiry met persons and representatives of parties who had been concerned in the two transactions and produced a lengthy interim report in the month of October, 1991.

While the committee of inquiry succeeded in producing a large amount of background information concerning the transactions within a short space of time, its findings as to the individuals who appeared to have benefited by the transactions were incomplete and inconclusive, as appears from the following paragraphs taken from the report:—

"The interviews were productive and each of the parties appearing before the...