Harrison v Charleton

CourtHigh Court
JudgeMs. Justice Niamh Hyland
Judgment Date18 November 2020
Neutral Citation[2020] IEHC 597
Docket NumberRECORD NUMBER: 2020 180 JR
Date18 November 2020

[2020] IEHC 597

Niamh Hyland



JUDGMENT of Ms. Justice Niamh Hyland delivered on 18 November 2020
Summary of Decision

This is an application for discovery and interrogatories. It is brought in the context of proceedings challenging a costs decision made in respect of the applicant's participation at the Disclosures Tribunal. For the reasons set out, I find the discovery and the interrogatories sought are neither relevant nor necessary. In this respect, some of the material sought is already available to the applicant from the material in his possession, including the transcript of the 19 days hearing on the terms of reference (n) and (o), the second interim report of 30 November 2017 of the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters (the “second interim report”), the correspondence between the applicant and the Tribunal in respect of costs prior to the making of the costs decision, the transcript of the hearing in respect of costs of 1 November 2019, and the costs decision of 4 December 2017 itself (the “costs decision”).

The Disclosures Tribunal

On 17 February 2017, the Oireachtas established the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act, 2014 and certain other matters (the “Disclosures Tribunal”) under the Tribunals of Inquiry (Evidence) Act 1921 and appointed the respondent sole member. The Tribunal's terms of reference were primarily concerned with investigating allegations involving two garda “whistle-blowers”, Sergeant Maurice McCabe and Superintendent David Taylor. While most of the terms of reference concern Sergeant Maurice McCabe, two of them concerned the applicant. Term (n) requires the tribunal to investigate contacts between the gardaí and TUSLA in relation to Garda Keith Harrison and term (o) requires the investigation of any pattern of the creation, distribution and wrongful use by TUSLA of files containing allegations of criminal misconduct against gardaí who made allegations of wrongdoing.


The applicant had made protected disclosures under the 2014 Act. In short, the applicant's disclosure under the 2014 Act related to his treatment in the Donegal division and the notification by An Garda Siochana to Tusla arising from disputed domestic violence concerns in relation to the applicant and his partner, Ms. Marisa Simms, insofar as those matters might have affected Ms. Simms's children.


Following an oral hearing lasting 19 days in respect of terms of reference (n) and (o), the Tribunal reported on those terms of reference in its second interim report. The Tribunal concluded that the allegations of Garda Keith Harrison and Marisa Simms that they had been the victims of a malicious procession of events were entirely without any validity. The respondent rejected Ms. Simms's allegation that a statement had been coerced from her. The respondent also criticised the applicant in relation to his conduct in moving back to Donegal to serve as a garda in the station in Buncrana, in order to be with Ms. Simms, where that station was investigating the involvement of Ms. Simms's brother for the manslaughter of Garda Gary McLoughlin.

Interaction between the parties prior to the costs decision

On 4 December 2017 the applicant formally applied to the respondent for his costs following the publication of the second interim report.


The solicitor to the Tribunal replied on 12 December 2017 requesting that the applicant send in submissions to the Tribunal setting out the basis for and all relevant matters on which he sought to apply for costs.


The applicant furnished the requested legal submissions on 21 December 2017, which were acknowledged on 28 December 2017.


The applicant wrote to the Tribunal on 22 May 2018 enquiring as to when the costs decision would be made, this letter being acknowledged on 18 June 2018 by the solicitor to the Tribunal.


Following the publication of a third interim report, the solicitor to the Tribunal wrote to the applicant on 19 October 2018 stating that the Tribunal was in a position to deal with costs and asked the applicant to indicate his position in terms of costs and to furnish submissions to that end.


On 22 October 2019 the Tribunal wrote to the applicant setting out its proposed approach in respect of costs stating that it was presently considering what portion, if any, of costs should be ordered and inviting the applicant to make oral submissions on that issue.


An oral hearing took place on 1 November 2019 and a transcript of that hearing is exhibited in these proceedings.

Costs Decision

On 4 December 2019 the Tribunal gave its decision on the costs of the applicant. The approach of the Tribunal is summed up on the first page of the decision, where it is observed that: “Tribunal costs are not dependent on whether a person did something wrong but rather on cooperation, central to which is telling the truth”.


A significant portion of the decision is taken up with summarising the law on costs, including s.6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 and relevant case law. The decision also sets out in some detail the contact between the Tribunal and the applicant prior to the cost decision in respect of the proposed decision. The submissions made on behalf of the applicant are summarised.


Certain summaries of, and extracts from, the second interim report are set out, including that Garda Harrison maintained to the Tribunal that TUSLA intervened in his family life as the gardai had manipulated social services to that end, that Garda Harrison accused TUSLA of going along with this Garda manipulation and that those allegations were completely rejected by the Tribunal as false (Tribunal report page 18, 19, 90, 91).


The decision also referred to the Tribunal finding that Garda Harrison tailored his evidence to what suited his purpose at the time (Tribunal report pages 28, 29), that Garda Harrison's position “shifted in accordance with what was perceived to be the drift in the evidence and the clear allegations he was making would be unmentioned if these did not apparently suit” (Tribunal report page 30), and that the Tribunal rejected Garda Harrison's evidence in connection with texts on the phone of Marissa Simms as “ ridiculous and nonsense” (Tribunal report page 57).


The Tribunal noted that the most damaging allegations were made by Garda Harrison against the Gardaí generally, the social work system and individual members of An Garda Siochana and individual social workers, including a conspiracy against him orchestrated through Garda headquarters. The Tribunal noted that after several weeks of preparation, distribution and analysis of thousands of pages of documents and four weeks of hearing to consider these allegations, the Tribunal could find no basis for a finding that those allegations were true.


The Tribunal noted that if a person makes an allegation in public and the Oireachtas decides to set up a public inquiry, the person making the allegation in coming to the Tribunal is entitled to costs provided he or she co-operates but that cooperation must involve telling the truth as an objective reality. The Tribunal went on to say that, if baseless allegations are made and persisted with throughout the hearings of the Tribunal, where the person turns up and gives wrong evidence, that may give the appearance of cooperation but is not cooperation. On the other hand, if a person makes an allegation and a Tribunal is set up and the individual tells the Tribunal that the allegation was wrong or they made it up or were mistaken, that is cooperation.


The arguments of counsel for the applicant were addressed, including the issue in relation to awarding only a portion of the costs. The Tribunal found this was not a case where awarding a proportion of the costs was appropriate where all the allegations with which the terms of reference (n) and (o) were concerned were unfounded. The Tribunal found that after the first day of the Tribunal the allegations should have clearly been not persisted in after legal advice”. The Tribunal concluded that it could not find any basis for the award of costs based on cooperation within the meaning of the case law. The Tribunal concluded there was proper and moderate interventions by gardai and social services, noting that Garda Harrison persisted fully in the allegations made by him when they were wrong.


The Tribunal went on to consider whether, despite this finding, there was a basis upon which a “ humane and lawful award of costs” could be made, noting that there could have been a scoping exercise by the Oireachtas which initiated the public tribunal and had the texts exchanged between Marisa Simms and Garda Harrison come out, the basis for holding an inquiry might have dissipated. However, the Tribunal concluded that the Oireachtas having set up the Tribunal, Garda Harrison was entitled to instruct solicitors and counsel, that the disclosure made by the Tribunal had to be analysed and the opening speech of counsel for the Tribunal had to be considered. The Tribunal noted that the allegations should have been withdrawn on “ on the basis of a serious consideration of where the facts are” but that did not happen. Reference was made to the fact that cases are often settled in litigation on the day of the hearing and that allegations can be withdrawn in a brief court hearing.


Accordingly, the Tribunal ruled that Garda Harrison was entitled to representation up to and including the opening day of the Tribunal's substantive hearings but that no order for costs was to be made for the remainder of the days of the hearing, being day 2 to day 19.

The proceedings

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