Harrison v Charleton

JurisdictionIreland
JudgeNí Raifeartaigh J.,Collins J.,Binchy J.
Judgment Date11 November 2022
Neutral Citation[2022] IECA 260
CourtCourt of Appeal (Ireland)
Docket NumberCourt of Appeal Record Nos 2021/14 & 2021/109
Between
Keith Harrison
Appellant/Applicant
and
Peter Charleton
Respondent/Respondent

[2022] IECA 260

Ní Raifeartaigh J.

Collins J.

Binchy J.

Court of Appeal Record Nos 2021/14 & 2021/109

THE COURT OF APPEAL

CIVIL

Costs – Discovery – Interrogatories – Appellant seeking to quash a costs order – Whether an application for discovery and for leave to deliver interrogatories ought to have been granted

Facts: The appellant, Garda Harrison, sought to quash a costs order dated 4 December 2019 (the Costs Decision) made by the respondent, Mr Charleton, in his capacity as sole member of a tribunal of inquiry established by the Tribunals of Inquiry (Evidence) Act 1921 (Appointment of Tribunal) Instrument 2017 for the purpose of inquiring into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters (the Disclosures Tribunal). The appellant brought an application for discovery and for leave to deliver interrogatories. On 18 November 2020, the High Court (Hyland J) delivered a comprehensive judgment setting out her reasons for refusing the application. That decision was the subject of the first appeal before the Court of Appeal (the Discovery Appeal). On 18 February 2021, the High Court (Heslin J) dismissed the application for judicial review of the Costs Decision. That decision was the subject of the second appeal before the Court of Appeal (the Main Appeal).

Held by the Court that the decision in respect of the discovery and interrogatories fell squarely within the range of Hyland J’s discretion. The Court held that: (1) Heslin J did not err in failing to have regard to the Costs Decision made by the respondent; (2) Heslin J did not err in failing to find that the Costs Decision meant that co-operation with the Tribunal required “telling the truth as an objective reality”; (3) Heslin J did not err in failing to distinguish between evidence which was objectively untrue but honestly given and evidence which was dishonestly given; (4) Heslin J did not err in finding that the Tribunal’s second interim report found that the appellant “knowingly gave false or misleading information”; (5) Heslin J did not err in finding that the appellant “gave untrue evidence to the Tribunal which he knew to be untrue”; (6) Heslin J did not err in finding that the respondent had made findings in his second interim report relating to “active, conscious and knowing conduct on the part of the applicant insofar as his engagement with the Tribunal was concerned”; (7) Heslin J did not err in failing to apply the requirement that a finding of non-cooperation must be separate and distinct from the findings of the Tribunal in respect of its terms of reference; (8) Heslin J did not err in finding that a failure to cooperate does not require an express finding to that effect; (9) Heslin J did not err in finding that the ratio of the Costs Decision did not involve the appellant being disentitled to costs because he did not prove his allegations; (10) Heslin J did not err in finding that the Costs Decision “did not involve the respondent straying impermissibly into the administration of justice”; (11) Heslin J did not err in finding that the words “the Tribunal is exercising the High Court discretion in relation to costs” did not mean that the respondent was purporting to exercise the High Court discretion in relation to costs; (12) Heslin J did not err in failing to consider the import of the terms of reference of the Tribunal when considering whether the alleged non-cooperation affected the work of the Tribunal; (13) Heslin J did not err in failing to consider the obligation of the respondent to provide notification of the proposed mode of calculation before reaching his decision on costs; (14) Heslin J did not err in failing to have regard to the different approach taken by the respondent to different witnesses both in respect of their evidence and their costs applications; (15) Heslin J did not err in finding that the question of different and unequal treatment was not pleaded; (16) Heslin J did not err in failing to have any or any adequate regard to the fact that the respondent had acted ultra vires or for the requirement of fairness in the procedure adopted by the respondent; (17) Heslin J did not err in finding that by not “falling on his sword” the appellant did not cooperate with the Tribunal.

The Court dismissed the appellant’s appeals and affirmed the substantive orders made by the High Court. The Court’s provisional view was that the respondent was entitled to his costs in the Court of Appeal and in the High Court.

Appeals dismissed.

JUDGMENT of the Court delivered on 11 th November 2022

BACKGROUND
The Disclosures Tribunal and term of reference (n)
1

In these proceedings the Appellant seeks to quash a costs order dated 4 December 2109 (“ the Costs Decision”) made by the Respondent in his capacity as sole member of a tribunal of inquiry established by the Tribunals of Inquiry (Evidence) Act 1921 (Appointment of Tribunal) Instrument 2017 for the purpose of inquiring into protected disclosures made under the Protected Disclosures Act 2014 and certain other matters (referred to hereafter as “ the Disclosures Tribunal” or “the Tribunal”).

2

One of the “ definite matters of urgent public importance” identified in the resolutions passed by the Dáil and Seanad that led to the establishment of the Disclosures Tribunal was “(n) To investigate contacts between members of An Garda Síochána and TUSLA in relation to Garda Keith Harrison.” That aspect of the Tribunal's terms of reference arose from complaints made by the Appellant and his partner Marisa Simms to the effect that TUSLA 1 had intervened inappropriately in their family life and that such intervention had been improperly manipulated by members of An Garda Síochána alleged to bear ill-will towards the Appellant and Ms Simms.

3

The Tribunal conducted hearings into term of reference (n) over 19 hearing days between 18 September 2017 and 24 October 2017. The Appellant was granted representation by the Tribunal and he and his legal team participated fully in the hearing, with the Appellant being one of a number of persons called to give evidence by the Tribunal.

4

The Tribunal issued its Second Interim Report on 30 November 2017 (hereafter “the Report”). While the Report states that it relates to Garda Harrison pursuant to terms of reference (n) and (o), as a matter of fact only term of reference (n) was the subject of substantive consideration in it. 2 That is not in controversy. It will be necessary to refer in more detail to the precise terms of the Report below. At this point, it is sufficient to note that the Tribunal was very critical of the Appellant (and of Ms Simms) and of the evidence given by him and rejected in emphatic terms the “ very serious allegations” that the Appellant had made regarding the intervention of TUSLA and the role of An Garda Síochána in it.

5

The Appellant then sought to quash the Report (and portions of the Tribunal's Third Interim Report which repeated the conclusions that it had reached regarding the allegations made by the Appellant) on grounds of bias. Those proceedings were dismissed by the High Court (Donnelly J) ( [2019] IEHC 626) and by this Court on appeal ( [2020] IECA 168). The findings expressed by the Tribunal in the Report are now beyond challenge.

The Appellant's Application for Costs
6

On 4 December 2017, the Appellant's solicitors wrote to the Tribunal making a formal application for his costs. In response the Tribunal invited the Appellant to make a submission setting out the basis for that application and such a submission was provided on 21 December 2017. The submission made reference to section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (as amended) (“ Section 6”) and to the decisions of the Supreme Court in Goodman International v Hamilton [1992] 2 IR 542 and Murphy v Flood [2010] IESC 21, [2010] 3 IR 136. While it was acknowledged that the Tribunal had rejected assertions made by the Appellant and had found them to be “ entirely without validity”, it was said that the Tribunal's findings “fail to reach the threshold to warrant an adverse costs Order as against him” and that any such order “ would be manifestly unjust and inequitable”. As regards the Appellant's own costs, it was said that there were “ insufficient reasons and/or findings” to refuse to grant him his costs of appearing before the Tribunal.

7

After some intervening correspondence which it is unnecessary to discuss, the Tribunal wrote to the Appellant's solicitors on 22 October 2018. The letter referred to Section 6 and to Murphy v Flood and suggested that, having regard to what had been stated by Denham J in Murphy v Flood, the giving of “ untruthful evidence” to the Tribunal was something to which it could have regard in making any order as to costs. The letter went on to refer to certain aspects of the Report where the Appellant's evidence was variously described as “ false”, “ evasive and at times senseless”, “ nonsense” and “ ridiculous”, and at one point referred to the determination of the Appellant and Ms Simms “ to persist in damaging and hurtful allegations notwithstanding the fact that they knew they were untrue.” It concluded by indicating that the Tribunal was considering “ what, if any, portion of costs should be paid to you” and in that context invited the Appellant to make oral submissions at a hearing to be held on 1 November 2019.

8

Mr Harty SC appeared for the Appellant at that hearing, as he had at the hearings on term of reference (n). He submitted that his client had co-operated fully with the Tribunal and had assisted it in its work. That was so notwithstanding the fact that the Tribunal had not accepted his evidence. The fact that The Tribunal preferred the evidence of other witnesses to the Appellant's evidence...

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