Desmond v Moriarty

• Jurisdiction: Ireland
• Judge: Denham J.
• Judgment Date: 20 January 2004
• Neutral Citation: [2004] IESC 3
• Court: Supreme Court
• Docket Number: [2003 No. 315 J.R.; S.C. No. 336 of 2003]
• Date: 20 January 2004

[2004] IESC 3

THE SUPREME COURT

Denham J.

McGuinness J.

McCracken J.

No. 336/2003

DESMOND v. MORIARTY (PAYMENTS TRIBUNAL)

BETWEEN/

DERMOT DESMOND

APPLICANT/APPELLANT

AND

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

RESPONDENT

Citations:

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

ETHICS IN PUBLIC OFFICE ACT 1995

BAILEY V MIN FOR FLOOD UNREP SUPREME 14.4.2000 2000/2/491

R V MINISTRY OF DEFENCE EX PARTE SMITH 1996 QB 517

GOODMAN INTERNATIONAL V HAMILTON NO 1 1992 2 IR 542

EAST DONEGAL CO-OP V AG 1970 IR 317

HAUGHEY V MORIARTY 1999 3 IR 1

MCMAHON V LEAHY 1984 IR 525

CONSTITUTION ART 40.1

KEEGAN, STATE V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

REDMOND V FLOOD 1999 3 IR 79 1999 1 ILRM 241

BAILEY & ORS V FLOOD UNREP MORRIS 6.3.2000 2000/2/457

IRISH TIMES V MURPHY 1998 1 IR 359 1997 2 ILRM 541

O'BRIEN V MIRROR GROUP NEWSPAPERS 2001 1 IR 1

KELLY V O'NEILL 2000 1 IR 354

TROMSO V NORWAY 1999 29 EHRR 12

Synopsis:

JUDICIAL REVIEW

Tribunal of Inquiry

Matters of urgent public importance - Mobile telecommunications licence - Fair procedures - Vindication of good name - Relevance - Freedom of expression - Whether the applicant was entitled to prior notice of the respondent's intention to introduce evidence relating to the contents and findings of the Glacken Report - Tribunals of Inquiry (Evidence) Act, 1921 - (336/2003 - Supreme Court - 20/1/2004)

Desmond v Mr. Justice Michael Moriarty - [2004] 1 IR 357

Facts: The respondent was the sole member of a tribunal of inquiry into payments to Charles Haughey and Michael Lowry. The tribunal was engaged in investigating whether the award of the second mobile telecommunications licence, which occurred between October, 1995 and May, 1996 to the ESAT Digifone consortium, was compromised or influenced in any improper manner by Michael Lowry in return for any payment received by him. The ESAT Digifone consortium comprised Telenor, ESAT Telecom Ltd and IIU Nominees Ltd, a company that was beneficially owned by the applicant, who was a well-known and successful businessman. The tribunal inquired into the award of this licence and the details of the business transactions leading up to it, including the evaluation of the bidders. The tribunal inquired into what were the true facts of ESAT's financial position at and prior to the 16th May, 1996, as to how aware the Department were of those facts and, if they were not aware, whether that was due to any intervention by Mr. Michael Lowry or to some other factor. The issue in this case related to the decisions and ruling by the tribunal as to the final report on Chestvale Properties Ltd and Hoddle Investments Ltd by John A. Glackin, which was published on 1st July, 1993. This became known as the Glackin report and it contained findings that were critical of the applicant.

During the course of the tribunal's inquiry counsel for the tribunal referred to the Glackin report when examining witnesses without notice or appropriate notice to the applicant.

The applicant sought judicial review in the High Court on two main grounds, firstly it was submitted that the Glackin report and its contents was not relevant to the tribunal and secondly in the alternative, if the Glackin report was relevant, the tribunal failed to provide fair procedures by not affording the applicant any or any adequate notice of the likelihood that a witness would be examined with reference to the Glackin report. The applicant submitted that in consequence he had been compromised in his capacity to vindicate his good name. The High Court refused the relief sought by the applicant and accordingly he appealed to the Supreme Court.

Held by the Supreme Court (Denham, McGuinness, McCracken JJ) in dismissing he appeal and upholding the High Court's determination: 1. That the onus rested on the applicant to prove that the tribunal had acted ultra vires. In the context of the inquiry it was not unreasonable to determine that the former business transactions of the applicant were relevant to the inquiry as to whether the applicant avoided the evaluation process and as to whether this was the result of any influence by Mr. Lowry.

2. That the Glackin report was a report of an investigation into the former business dealings of the applicant, it was a published document and accordingly it was not unreasonable to consider it relevant to the work of the tribunal. The decision that this public document was not to be excluded was not a decision so unbalanced or unreasonable that it required intervention by the court. Further, the decision was not disproportionate in the context of the inquiry to the interests of the applicant.

3. That there was no necessity for the tribunal to give notice to the applicant of any intended reference to the Glackin report either in submissions or in the examination of witnesses. In light of the nature of the Glackin report which was a public document, the tribunal itself had not made a decision that so affected the rights of the applicant as to entitle him to notice in advance of such references.

4. That the tribunal did not adopt procedures which prevented the applicant from vindicating his rights. The court had a duty to provide equal treatment for citizens of the state and accordingly the applicant was not entitled to preference over others, who had also not received notification of the proposed evidence.

That the right of the applicant to protect his good name and to obtain fair procedures was required to be considered in the context of the tribunal, its establishment, its terms of reference, the exigencies of the common good which required the establishment of the tribunal and the right to freedom of expression. The right to privacy is not an absolute right.

Reporter: L. O'S.

1 Judgment delivered on the 20th day of January, 2004 by Denham J.

1. Appeal

2 This is an appeal by Dermot Desmond, the applicant/appellant, hereinafter referred to as the applicant, from the judgment and order of the High Court (Quirke J.) made on the 8 ^th day of August, 2003 wherein the reliefs the applicant sought by way of judicial review were refused.

2. Tribunal

3 The respondent is the sole member of the Tribunal of Inquiry into payments to Charles Haughey and Michael Lowry, hereinafter referred to as the Tribunal.

3. Resolution

4 A resolution was passed by Dáil Éireann on the 11 ^th day of September, 1997 and by Seanad Éireann on the 18 ^th day of September, 1997 resolving that it was expedient that the Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921 as adapted by or under subsequent enactments to inquire urgently into and report to the clerk of the Dáil and make such findings and recommendations as it sees fit into stated definite matters of urgent public importance set out in paragraphs (a) to (j).

4. Terms of Reference

5 Paragraph (g) of the said terms of reference are relevant and request the Tribunal to inquire:

"(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."

6 The paragraph (c) and (f) referred to state:

"(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the Ethics in Public Office Act, 1995or discharged at his direction), 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) The source of any money held in the Bank of Ireland, Thurles Branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel Islands, the Allied Irish Banks, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Limited in the Isle of Man, the Irish Permanent Building Society, Patrick Street branch, Cork or Rea Brothers (Isle of Man) Limited, in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within the meaning of the Ethies in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Lowry."

5. Issue

7 At issue in this case are the decisions and the ruling by the Tribunal as to the final report on Chestvale Properties Limited and Hoddle Investments Limited by John A. Glackin, which was published on the 1 ^st day of July, 1993, hereinafter referred to as "the Glackin Report." The Glackin Report is a public document. It contains findings critical of the applicant.

6. Award of Mobile Telecommunications Licence

8 The Tribunal is currently engaged in investigating whether the award of the second mobile telecommunications licence, which took place between October, 1995 and May, 1996 to the ESAT Digifone consortium, was compromised or influenced in any improper manner by Michael Lowry in return for any payment received by him.

7. Relevant Facts

9 Relevant facts were found by the learned trial judge as follows:

"In the course of its work the Tribunal is presently investigating decisions made in 1995 and 1996 to award a second GSM telephone licence to a consortium (hereafter...