Lawlor v Flood

• Jurisdiction: Ireland
• Judge: Mr. Kearns J
• Judgment Date: 02 July 1999
• Neutral Citation: [1999] IEHC 10
• Court: High Court
• Date: 02 July 1999

[1999] IEHC 10

THE HIGH COURT

197 SR/1999

LAWLER v. FLOOD

JUDICIAL REVIEW

BETWEEN

LIAM LAWLOR

APPLICANT

AND

MR JUSTICE FERGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNALOF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENT

Citations:

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(1)

TRIBUNALS OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S5

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

RSC O.39 r4

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S4(1)

KIBERD V GOODMAN 1992 2 IR 257, 1992 ILRM 574

LYNCH, STATE V COONEY 1982 IR 337

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

HOWARD V COMMISSIONERS OF PUBLIC WORKS 1993 ILRM 665

CRAIES ON STATUTE LAW 7ED 65

MAXWELL ON INTERPRETATION OF STATUTES 12ED 29, 239–40 & 246

BENNION ON STATUTORY INTERPRETATION 3ED 14

OXFORD DICTIONARY OF ENGLISH GRAMMER "DISJUNCTIVE" (1990) 120

COLLINS ENGLISH DICTIONARY "DISJUNCTIVE" (1986)

TRIBUNALS OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S3

MULLINS V HARNETT 1998 2 ILRM 304

BENNION ON STATUTORY INTERPRETATION 2ED 382

COMPANIES ACT 1990 S10

COMPANIES ACT 1990 S19

NATIONAL IRISH BANK, IN RE 1999 1 ILRM 321

NATIONAL IRISH BANK, IN RE 1999 2 ILRM 443

DESMOND V GLACKIN (NO 2) 1993 IR 671

CRIMINAL JUSTICE ACT 1984

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

COMPANIES ACT 1990 S18

COMPANIES ACT 1990 S23

CONSTITUTION ART 38

CONSTITUTION ART 40.3

DPP, PEOPLE V MCDONAGH 1996 2 ILRM 468

BOURKE V AG 1972 IR 36

UNITED STATES V AMERICAN TRUCKING ASSOC 1940 310 US 534

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(2)

DAIL DEBATES (1979) 311 COL 430

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(1)(a)

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(1)(b)

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921 S1(1)(c)

SEANAD DEBATES (1979) 91 COL 46

GOODMAN INTERNATIONAL V HAMILTON 1992 2 IR 542

TRIBUNALS OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S6

HEANEY V IRELAND 1994 3 IR 593

LAURENTIU V MIN FOR JUSTICE UNREP GEOGHEGAN 22.1.1999

HAUGHEY V MORIARTY UNREP SUPREME 28.7.1998

NATIONAL IRISH BANK LTD V RADIO TELEFIS EIREANN UNREP LYNCH 20.3.1998

DUNNES STORES (IRL) LTD V MALONEY & MIN FOR ENTERPRISE TRADE & EMPLOYMENT 1999 1 ILRM 119

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

HAUGHEY, IN RE 1971 IR 217

CHESTVALE PROPERTIES LTD V GLACKEN 1993 3 IR 35

PERGAMON PRESS LTD, IN RE 1971 CH 388

MAXWELL V DEPT OF TRADE & INDUSTRY 1974 2 AER 122

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

BEKHOR LTD V BILTON 1981 1 QB 923

SUPREME COURT OF JUDICATURE (CONSOLIDATION) ACT 1925 S45(1) (UK)

M V D 1998 3 IR 175

REVENUE COMMISSIONERS V HAYES 1967 101 ILTR 121

GILLIGAN V CRIMINAL ASSETS BUREAU (CAB) 1998 3 IR 185

FIFTH AMDT TO AMERICAN CONSTITUTION

R V DIRECTOR OF SERIOUS FRAUD OFFICE 1993 AC 1

HAUGHEY V MORIARTY UNREP GEOGHEGAN 15.5.1998

HAUGHEY V MORIARTY UNREP GEOGHEGAN 28.4.1998

UNIVERSITY OF CEYLON V FERNANDO 1960 1 AER 631

BAILEY V FLOOD UNREP GEOGHEGAN 15.5.1998 1998/11/3336

AIB V ERNST & WHINNEY 1993 1 IR 396

COMPAGNIE FINANCIERE DU PACIFIQUE V PERUVIAN GUANO CO 11 QBD 62

JONES V MONTE VIDEO GAS CO 5 QBD 556

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1976

Synopsis

Tribunals

Powers of Tribunal; statutory interpretation; statutory construction; compulsory questioning before counsel for the Tribunal; constitutional rights; discovery; compulsory affidavits; respondent had made three orders, which the applicant now seeks to quash; statutory interpretation of s.4, Tribunal of Inquiry (Evidence) (Amendment) Act, 1979; whether the respondent has power to require the attendance of a person for questioning by counsel for the Tribunal when the High Court does not have this power; whether there are disjunctive words in s.4; whether the order for discovery is excessive in scope; whether fair procedures were observed in respect of the making of an order for discovery; whether Re Haughey rights arise at preliminary stage of tribunal; whether the respondent has the power to compel the applicant to swear an affidavit; whether the High Court has the power to compel a person to swear an affidavit; O.39, r.4, Rules of the Superior Courts.

Held: Order compelling attendance of applicant for questioning before counsel for tribunal quashed; order compelling applicant to swear affidavit quashed; order for discovery was not excessive in scope and fair procedures were observed.

Lawlor v. Flood - High Court: Kearns J. - 02/07/1999

While section 4 of the Tribunals of Inquiry (Evidence) Act 1979 was to be construed as entitling a tribunal within its terms of reference to make such orders as it considered necessary for the performance of its functions and in so doing they had the powers of the High Court including the inherent powers of that court, they did not have powers greater than those of the High Court. The order of the respondent requiring the applicant to answer questions put to him by counsel for the tribunal would require the enactment of legislation for that purpose. The order of the respondent to that effect would be quashed as having been made without jurisdiction. The respondent did not offend the requirement of natural justice in ordering the applicant to make discovery of bank accounts and other such records. While a tribunal could not raise a general requirement for discovery against a party in respect of whom it lacked any information or material, once relevant material was there the court should not interfere. In the absence of a clear statutory provision the respondent did not have jurisdiction to order the applicant against whom adverse allegations had been raised to swear an affidavit stating the names of any companies of which he was a shareholder or director or in which he had a beneficial interest. An order made by the respondent to that effect would be quashed. The High Court so held in granting part of the relief claimed.

1 JUDGMENT OF Mr. Kearns Jdelivered on the 2nd day of July 1999

2 The matters to be determined in this judicial review arise from the making of three Orders by the Respondent on the 26th day of April 1999 as Sole Member of the Tribunal of Inquiry into certain Planning Matters and Payments. The Tribunal was appointed pursuant to an Instrument of the Minister for the Environment and Local Government dated 4th November 1997, as amended by further Instrument dated 15th July 1998. These Instruments followed the resolution in Dail Eireann on the 7th day of October 1997 to establish a Tribunal under the Tribunals of Enquiry (Evidence) Act, 1921 and the Tribunals of Enquiry (Evidence) (Amendment) Act, 1979, to enquire urgently into and report to the Clerk of the Dáiland make such findings and recommendations as it might see fit in relation to certain definite matters of urgent public importance.

3 The Tribunals interest in Mr Lawlor arises under Section A subsection 5 of the Terms of Reference of the Tribunal which provides:-

"In the event of the Tribunal in the course of its inquiries is made aware of any Acts associated with the planning process committed on or after the 20th of June 1985 which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of itsenquiries."

BACKGROUND

4 The Applicant is a member of Dáil Eireann, having commenced his present tenure as a T.D. subsequent to the General Election of June 1997. Prior thereto he was first elected to Dáil Eireann in June 1977 and was re-elected in 1982, 1987 and in all successive General Elections thereafter. He was elected as a County Councillor to Dublin County Council in June 1979 and was re-elected to the Council in 1985. He is a member of the Dáil Ethics Committee.

5 On the 6th of October 1998 the Solicitor to the Tribunal wrote to the Applicant in the following terms:-

"The Sole Member has read a report in the Sunday BusinessPost of 4th October 1998, in which, inter alia, you are quoted assaying:-"

6 "I got about two or three contributions or subscriptions from Tom Gilmartin when there was a series of elections in the first half of the 1980's....I did up a report for them and went to England at myownexpense. We were talking about the possibility of me taking space in the development for a bowling leisure idea. I advised them but there was no formal consultancy arrangement. There was no requirement on me to register my interest"

7 The report under the heading "Lawlor "Fees" now donations" (with a sub-heading "Fianna Fail T.D. re-classifies £3,500 a month payments not listed on register of interests") goes on to allege that you claimed "that a series of payments (you) received from builder Tom Gilmartin in the 1980's were political donations and that (you) had mistakenly described the same monies as "consultancy fees" to the Sunday Business Post "last week" and that you believe "thearrangements lasted for up to four months".

8 In order to assist him in the preliminary confidential enquiries which he was carrying out in private the Sole Member of the Tribunal asks you to furnish the following information in relation to each and every such payment:

9 a 1(a) the date of each payment;

10 (b) by whom the payment was made;

11 (c) to whom the payment was made;

12 (d) whether the payment was paid by cheque, cash, bankers Order or otherwise;

13 (e) if made by cheque or bankers Order the name of the account on which the cheque was drawn;

14 (f) the names of the signatory to the cheque/order;

15 (g) the name of the payee on the cheque/order;.

16 (h) when, where and by whom each such cheque/order wasnegotiated;

17 (i) the name of the Bank and branch together with the number of the account...