His Honour Judge Alan P. Mahon, Her Honour Judge Mary Faherty and His Honour Judge Gerald B. Keys (members of the Tribunal of Inquiry into Certain Planning Matters and Payments) v Post Publications Ltd trading as The Sunday Business Post

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 04 October 2005
• Neutral Citation: [2005] IEHC 307
• Court: High Court
• Date: 04 October 2005

[2005] IEHC 307

THE HIGH COURT

[No.19832 P/2004]

MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST

BETWEEN

HIS HONOUR JUDGE ALAN P. MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD B. KEYS (MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS)

PLAINTIFF

AND

POST PUBLICATIONS LIMITED TRADING AS THE SUNDAY BUSINESS POST

DEFENDANT

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S4

CONSTITUTION ART 40.6.1

EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10

CONSTITUTION ART 40.6.1.i

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

EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 10(2)

CONSTITUTION ART 46.1.1.i

R v CENTRAL INDEPENDENT TELEVISION PLC 1994 FAM 192

M v DRURY 1994 2 IR 8 1995 1 ILRM 108

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SIMMS 2002 2 AC 115

BARTHOLD v GERMANY 1986 ECHR 1

MCCARTON TURKINGTON & BREEN v TIMES NEWSPAPERS LTD 2001 2 AC 277

CULLEN v TOIBIN 1984 ILRM 577

O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP SUPREME 9.3.2005

COCO v AN CLARKE (ENGINEERS) LTD 1969 FSR 415 1969 RPC 41

STATUTE OF USES 1535

PRINCE ALBERT v STRANGE 1849 1 MAC & G 25

AG v GUARDIAN NEWSPAPERS (NO 2) 1990 1 AC 109

HOUSE OF SPRING GARDENS v POINT BLANK 1984 IR 611

AG v TIMES NEWSPAPERS 1974 AC 273

R v SHAYLER 2003 1 AC 247

AG v PUNCH LTD 2001 1 AC 1046

CONSTITUTION

freedom of expression

Press - Documents - Confidential information - Breach of confidence - Injunction sought to restrain publication - Nature of confidentiality - Quality of confidentiality - When duty of confidence arises - Jurisdiction of tribunal to restrict publication of material - Test - Question of proportionality - Legitimate aims - Pressing social need - Close and penetrating examination required - Means used to impair rights as little as possible - Constitution of Ireland 1937, Article 46.1.1o - European Convention on the Protection of Human Rights and Fundamental Freedoms 1950, article 10 - (2004/19832P - Kelly - 4/10/2005) [2005] IEHC 307

MAHON & ORS (PLANNING TRIBUNAL) v POST PUBLICATIONS LTD T/A SUNDAY BUSINESS POST

Facts: The plaintiffs were members of a Tribunal of Inquiry. The Tribunal experienced difficulties concerning the unauthorised disclosure of confidential information. Consequently, it sought and was granted an ex parte injunction by Finnegan P. restraining the defendant from publishing or using information or reproducing any document in relation to which the defendant was aware that the Tribunal had directed that such information/document should remain confidential until disclosed at public hearing or as otherwise directed by the Tribunal. Furthermore an injunction was sought restraining the publication of documents circulated on a confidential basis to any witness before such documentation was disclosed at a public hearing. In these proceedings the Tribunal sought a perpetual injunction in the same terms as the injunction granted by Finnegan P.

Held by Kelly J. in refusing the relief sought: That the orders sought could not be regarded as proportionate. The applicant failed to establish relevant and sufficient reasons to justify the restriction and the restriction did not correspond to a pressing social need. Furthermore, the restriction was not proportionate to the legitimate aim pursued. The Tribunal sought to impose confidentiality on material some of which was not and could not be regarded as confidential in nature. The fact that the material in the brief might contain information obtained in confidence could not justify the wide form of restraint sought by the applicant. The injunction sought went too far and sought to enforce a species of confidentiality created unilaterally by the Tribunal.

Reporter: L.O’S.

1 JUDGMENT of Mr. Justice Kelly delivered the 4th day of October, 2005

The Plaintiffs

2 The plaintiffs are the members of a tribunal of inquiry. It is called the Tribunal of Inquiry into Certain Planning Matters and Payments (the Tribunal). It was established pursuant to resolutions passed by both houses of the national parliament in October, 1997. The Tribunal was established pursuant to the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and a series of orders made by relevant Government Ministers from 1997 to 2004.

3 The Tribunal was set up to investigate as a matter of public importance alleged corruption in the planning process.

The Defendant

4 The defendant is a limited company which is a subsidiary of Thomas Crosbie (Holdings) Limited which is based in Cork and is the publisher of "The Examiner" newspaper. The defendant publishes a weekly newspaper called "The Sunday Business Post".

These Proceedings

5 These proceedings were commenced on 20th December, 2004. Three days beforehand an application was made ex parte to Finnegan P. for injunctive relief against the defendant.

6 On 17th December, 2004, that judge made an order in the following terms. He restrained the defendant û

7 2 "1. From publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal (sic ) or as otherwise directed by the Tribunal until after the 17th January, 2005,

8 2. Further or in the alternative (sic ) an injunction restraining the defendant, its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal,

9 (a) Before such information and/or the contents of such documents has been disclosed or read at a public hearing of the Tribunal, or

10 (b) Until the Tribunal has given express permission for the publication, use or exploitation of such information and/or document until after the 17th day of December, 2005."(sic )

11 A notice of motion returnable for 17th January, 2005, seeking similar relief on an interlocutory basis was brought and was adjourned from time to time so as to enable an exchange of affidavits to take place.

12 On completion of that exchange, the motion was transferred into my list for hearing. The parties agreed that the hearing of the motion would be treated as the trial of the action.

13 Oral evidence was not adduced. Indeed, there was no exchange of pleadings so that the only pleading in the case is the plenary summons (if pleading it be). The relief sought in the general endorsement of claim is the same as that sought and obtained from Finnegan P. on 17th December, 2004, except for the temporal limitation contained in that order. The reliefs are now sought perpetually.

The Evidence

14 The evidence in the case consists of two affidavits sworn on behalf of the plaintiffs and one affidavit sworn on behalf of the defendant. The plaintiffs” affidavits were sworn by Marcelle Gribbin, a solicitor who works for the Tribunal. The defendant's affidavit was sworn by Anthony Dinan who is a director of the defendant.

15 The evidence establishes the facts set out hereunder.

The Protocol

16 At a public hearing of the Tribunal which took place on 14th January, 1998, the then sole member (Flood J., the predecessor of the present members) outlined a protocol which the Tribunal would follow in respect of documents. He said:-

"I fully appreciate concerns which persons wishing to assist the Tribunal may have in relation to the issues of personal and commercial confidentiality. In order to protect these legitimate concerns I propose to adopt the following protocol in regard to documents:-"

(i) All original documents will be returned to their owners after the Tribunal has concluded its work,

(ii) All copies of documents with confidential, commercially sensitive or personal information will be destroyed after the conclusion of the inquiry,

i (iii) All documents will be stored in a secure location,

ii (iv) Confidential information not relevant to the inquiry will not be disclosed to any outside party. The only parties who will have access to such documents will be the chairman and the legal team for the Tribunal,

iii (v) Documents, which contain both confidential, personal or commercially sensitive information not relevant to the inquiry and other information, which is relevant, will have the irrelevant information blanked out,

iv (vi) Counsel for the Tribunal will be willing at all times to discuss any concerns any person may have concerning confidential, personal or commercially sensitive information."

The Tribunal's Difficulties

17 Since it was established the Tribunal has experienced difficulties concerning what is described as unauthorised disclosure of confidential information. It is of the view that such unauthorised disclosures are deliberate. They have, it believes, been made by or on behalf of persons who have been or are likely to be called to give evidence to the Tribunal and are intended to undermine and delay the Tribunal in its work.

18 As a result of such a disclosure the Tribunal in December, 1998, wrote to the defendant expressing concerns as follows:û

"Following the continuing publication in the print media of confidential material provided to the Tribunal and circularised by the Tribunal on a strictly confidential basis, it is apparent that past publication of material has taken place, notwithstanding that the publishers were or ought to have been aware of the...