Flood v Lawlor

• Jurisdiction: Ireland
• Judge: FENNELLY J.,Keane C.J.
• Judgment Date: 12 December 2001
• Neutral Citation: [2001] IESC 100
• Court: Supreme Court
• Docket Number: [S.C. No. 214 of 2001]
• Date: 12 December 2001

FLOOD (PLANNING TRIBUNAL) v. LAWLOR

IN THE MATTER OF AN APPLICATION, PURSUANT TO SECTION 4 OFTHE TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT) ACT 1997

BETWEEN

THE HONOURABLE MR. JUSTICE FEARGUS M. FLOOD SOLE MEMBEROF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS ANDPAYMENTS

PLAINTIFF/APPELLANT

AND

LIAM LAWLOR

DEFENDANT/RESPONDENT

[2001] IESC 100

Keane C.J.

Denham J.

Murphy J.

McGuinness J.

Fennelly J.

214/01

THE SUPREME COURT

Synopsis:

TRIBUNALS

Tribunals of inquiry

Contempt - Discovery - Practice and procedure - Committal - Public interest - Evidence - Whether defendant had failed to comply with order of discovery - Whether High Court entitled to jail defendant for contempt - Whether sanction imposed excessive and disproportionate - Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 - Rules of the Superior Courts, 1986 SI 15/1986 Order 31, rule 13 (214/2001 - Supreme Court - 12/12/01)

Flood v Lawlor - [2002] 3 IR 67

Facts: The defendant had been ordered by the plaintiff, acting as the sole member of a Tribunal, to produce certain documents by way of discovery. The plaintiff subsequently applied to have his orders made orders of the High Court. The plaintiff thereupon instituted proceedings for contempt claiming that the defendant was in breach of the Tribunal's orders. In the High Court Mr. Justice Smyth issued an order (15/01/2001) directing that the defendant serve a three month prison sentence for contempt. Smyth J directed that the first week of the sentence be served and suspended the balance to enable the defendant comply with the court orders. The plaintiff was dissatisfied with the level of compliance by the defendant and sought to have the contempt matter re-heard in the High Court. In a judgment delivered on 31/07/2001 Mr. Justice Smyth held that the defendant had not complied with the previous orders on a number of specific issues. Smyth J directed that the defendant should serve a further week in prison, should pay a fine of £5,000 and make further and better discovery. The defendant appealed against the order to the Supreme Court. The plaintiff contended that the defendant had failed to discover a number of documents or had failed to state what had become of documents believed to have been in his possession. The defendant contended that he had complied with discovery to the fullest extent and was not withholding any documents.

Held by the Supreme Court (Keane C.J. and Fennelly J. delivering judgment; Denham J., Murphy J. and McGuinness J. agreeing with Keane C.J.) in dismissing the appeal. The Chief Justice held that proceedings such as this were inquisitorial in nature and the legislature had expressly empowered the High Court to secure compliance with the orders of the tribunal. The machinery that existed could be used to advance the public interest in the proper and expeditious investigation of the matters within the remit of the tribunal so as to ensure that all persons who were required by law to give evidence complied with their obligations fully and without qualification. A party was obliged to discover documents relating to a matter in suit which were in or formerly in his possession or power. The effect of discovery would be seriously diluted if the obligations of a party were confined to producing documents in its possession at the time the order was made. The defendant had failed to comply with the relevant orders of the tribunal and of the High Court. The court should not interfere with the order of the trial judge in a case of civil contempt unless the trial judge had erred in principle or the sentence imposed was excessive or disproportionate. There was no error in principle by the trial judge. The imposition of a further week's sentence of imprisonment and a fine of £5,000 was not excessive or disproportionate. The appeal would be dismissed and the order of the High Court affirmed. Mr. Justice Fennelly in his judgment concentrated on one particular issue relating to the discovery of documents concerning a land transaction. The defendant's failure to respect the order of the court in this one respect alone justified the imposition on him of the further period of imprisonment and the fine imposed by the learned trial judge.

Citations:

RSC FORM 10 APPENDIX C

RSC O.31 r13

BULA LTD V CROWLEY 1991 1 IR 220

KEEGAN V DE BURCA 1973 IR 223

COMMINS, STATE V MCRANN 1977 IR 78

MARSHALL V MARSHALL 1966 110 SOL JO 122

SMYTH V SMYTH 1988 1 FLR 179

W (B), RE 1969 1 AER 594

ALRIDGE, EADY & AMYTH ON CONTEMPT 2ED 1999 PARA 14.3

WILSON V RAFFALOVICH 1881 7 QBD 553

BRAY ON DISCOVERY 1885

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1997 S4

HAUGHEY, RE 1971 IR 217

1 12th day of December, 2001 by Keane C.J.

Keane C.J.

Introduction

2 The plaintiff in these proceedings is the sole member of a tribunal of inquiry established by a resolution of both houses of the Oireachtas to inquire into certain planning matters and payments. The defendant/appellant hasrepresented the constituency of West Dublin, the location of a number of matters into which the plaintiff is inquiring pursuant to the resolution, both in the Dáil and the relevant local authority for significant periods of time covered by the plaintiff's terms ofreference.

3 On the 8th June 2000, the plaintiff made an order that the defendant make discovery on oath of and produce to him

4 a "(a) All documents and records in his possession or power relating to any accounts held in any financial institutions either within or outside the state, in his own name (individually or jointly) or for his benefit, or into which he made lodgments of money or into which he caused or procured lodgments of money to be made or into which lodgments of money were made for his benefit;

5 (b) All documents and records in his possession or power relating to any interest held by the defendant in any company and all documents and records in his possession or power relating to any accounts held by or on behalf of such company in any financial institution either within or outside the state;

6 (c) All documents and records in his possession or power relating to the tax amnesty and the monies in respect of which such amnesty was availed of including records in relation to the source(s) of such monies and the account(s) in which they were held."

7 Following the making of that order by the plaintiff, he applied to the High Court for an order compelling the defendant to comply with the order and an order compelling him to attend before the plaintiff to give evidence in relation to the documents in question. That order was granted by the High Court (Smyth J.) on the 24th October 2000. So much of the order as required the defendant to give evidence was the subject of an appeal to this court which was determined by this court in favour of the plaintiff on the 24th November 2000.

8 It is not in dispute that thereafter the defendant failed to comply, to a significant extent, with the order as to the discovery of documents and also refused to answer relevant questions addressed to him at the public hearings of the tribunal being conducted by the plaintiff. Proceedings were accordingly brought by the plaintiff against the defendant for attachment and/or committal for contempt.

9 In his reserved judgment, delivered on the 15th January of this year, Smyth J., having reviewed the facts and the law in detail, expressed his conclusions as follows:

"In my judgment, the contempt of the order of the High Court and the Supreme Court are off a most serious character and do not only justify the imposition of a custodial sentence, they demand it. The sentence I had initially in mind was very much higher than I now do, having reflected upon the matter and given all due weight to the cogent and eloquent pleas of counsel, I consider and determine that a custodial sentence of three months is the least that can be imposed, commensurate with the offence. In doing so I take into account all the information about the circumstances of the offence. "Of the period of three months, the first seven full days of twenty four hours each must be actually physically served and so soon as the orders are perfected and the warrant was issued. This is the absolute bare minimum imposition that can mark the court's disapproval of the disobedience of its orders. The balance of the sentence of three months will be suspended to enable the defendant to comply with the orders of the courts to which theseproceedings relate and to swear and file a full proper affidavit or affidavits of discovery and to attend, produce and hand over to the tribunal ..... the documents referred to in the said affidavit or affidavits being the documents and records mentioned in paragraphs (a), (b) and (c) of the order of the tribunal dated 8th June 2000 .... The suspension of the balance of the sentence aforesaid in respect of the contempt to which these proceedings relate shall be until Friday 23rd November 2001. This I hope will enable the tribunal to carry out its functions in an orderly manner and afford the defendant the opportunity the comply with the order as aforesaid and to exercise whatever right or rights of audience or representation as may be afforded to him by the tribunal, before the tribunal."

10 Thereafter, the defendant made discovery in respect of a considerable volume of documentation. However, the plaintiff was not satisfied that there had been as yet compliance within the specified time limits (which were extended on occasions by order) and the matter was re-entered for hearing before Smyth J. In a reserved judgment delivered on the 31st July, he concluded that there had been non-compliance of what he described as a "serious character". He accordingly ordered

11 (1) That the defendant should serve a part of the sentence imposed by the order of the 15th January 2001 for a period of seven full days of twenty four hours...