McDonnell v Brady

• Jurisdiction: Ireland
• Judge: Keane C.J.,[nem diss]
• Judgment Date: 31 October 2001
• Neutral Citation: [2001] IESC 88
• Date: 31 October 2001
• Docket Number: 276/01,[S.C. No. 276 of 2001]
• Court: Supreme Court

[2001] IESC 88

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

276/01

MCDONNELL v. BRADY & ORS (MEMBERS OF SUB-COMMITTEE ON MINI-CTC SIGNALLING PROJECT)

BETWEEN

NOREEN McDONNELL

APPLICANT

AND

MARTIN BRADY, AUSTIN CURRIE, SEAN DOHERTY, JIM HIGGINS, NOEL O'FLYNN AND PATRABBITTE MEMBERS OF THE SUB-COMMITTEE ON THE MINI-CTC SIGNALLING PROJECT THE MINISTER OF FINANCE IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

HOUSES OF THE OIREACHTAS (COMPELLABILITY, PRIVELEGES AND IMMUNITY OF WITNESSES) ACT 1997 S3(2)

COMPTROLLER AND AUDITOR GENERAL AND COMMITTEES OF THE HOUSES OF THE OIREACHTAS (SPECIAL PROVISIONS) ACT 1998

RSC O.84 r20(7)

CIVIL LIABILITY ACT 1961 S6

CIVIL LIABILITY ACT 1961 S7

HILLIARD V PENFIELD ENTERPRISES LTD 1990 1 IR 138

SAVAGE, RE 1991 NI 103

AMERICAN CYANAMID COMPANY V ETHICON LTD 1975 1 AER 504

CAMPUS OIL V MIN FOR INDUSTRY 1983 2 IR 88

R V MIN FOR AGRICULTURE, EX-PARTE MONSANTO 1998 4 AER 321

RSC O.84 r20(7)(a)

Synopsis:

CONSTITUTIONAL LAW

Fair procedures

Separation of powers - Role of legislature - Practice and procedure - Inquiry by sub-committee of Oireachtas - Bias - Costs - Defamation - Test to be applied in discharging stay - Whether proceedings before Oireachtas sub-committee should be stayed - Whether failure by sub-committee to vindicate constitutional rights of applicant - Rules of the Superior Courts, 1986 Order 84, rule 20 (7) - Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act, 1997 section 3 (2) (276/2001 - Supreme Court - 31/10/01)

McDonnell v Brady - [2001] 3 IR 588

An inquiry had been instituted by the Oireachtas into the signalling system being installed by Iarnród Éireann known as the "mini-CTC" system. In addition the sub-committee set up to carry out the inquiry were investigating a cabling project entered into by Córas Iompair Éireann ("CIE") and Esat. The applicant was the widow of the former Chief Executive of CIE and instituted judicial review proceedings in respect of the inquiry. The applicant claimed that the sub-committee had failed to make provision for her legal costs in exercising her constitutional right to vindicate the good name and reputation of her late husband. The applicant complained that members of the sub-committee had demonstrated bias and complained about some of the procedures adopted by the sub-committee including the manner in which cross-examination of witnesses was allowed. Initially the applicant was granted leave by Mr. Justice Kelly on 03/10/2001 to seek judicial review and a stay was granted preventing the inquiry from proceeding any further pending determination of the court proceedings. The stay was then discharged by Mr. Justice Ó Caoimh in the High Court on 15/10/2001 and the applicant appealed the determination to the Supreme Court. The applicant submitted that the balance of convenience was not in favour of discharging the stay and that the protection of the applicant's constitutional rights outweighed the alleged inconvenience to the sub-committee.

Held by the Chief Justice, delivering the judgment of the court, in dismissing the appeal. In judicial review proceedings where leave had been granted to seek judicial review and a stay granted on the related proceedings there seemed to be no reason why if the stay was subsequently challenged an applicant should not be under an onus to justify the granting of a stay. However in the light of the unchallenged ruling by the High Court judge that the onus was on the respondents to justify the removal of the stay the case would be considered on that basis. As it was not suggested that damages would be an adequate remedy the issue of the balance of convenience would be the determining factor. The inquiry was being conducted in the public interest. The procedures adopted by the sub-committee with regard to cross-examination of witnesses did not constitute a denial of constitutional justice that would warrant intervention in the form of a stay on the sub-committee's proceedings. The sub-committee was part of the legislative arm of the Government. Although the judicial branch would intervene where constitutional rights were being breached such a situation had not been established. The balance of convenience lay in discharging the stay originally granted. The appeal was dismissed.

1 JUDGMENT delivered the 31st October, 2001 by Keane C.J. [nem diss]

2 The applicant is the widow of Mr. Michael McDonnell, who until his recent death was the group chief executive of Córas Iómpair Éireann and the chairman of one of the three companies of which it consists, Iarnród Éireann. The first, second, third, fourth, fifth and sixth named respondents are the members of an Oireachtas Sub-Committee on the Mini-CTC Signalling Project (hereafter "the sub-committee") established by Dáil Éireann and SéanadÉireann under the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997as amended by the Comptroller and Auditor General and Committees of the Houses of the Oireachtas (Special Provisions) Act 1998. The third named respondent is the chairman of the sub-committee (hereafter "the chairman").

3 Under its terms of reference, the sub-committee, which was established as a sub-committee of the Oireachtas Joint Committee on Public Enterprise and Transport on the 3rd July, 2001, is inquiring into two separate topics on which it is required to report to the main committee or directly to the Dáil and Séanad. Its report is also to be published in due course.

4 The first topic is the circumstances surrounding the entering into and performance of the larnród Éireann Mini-CTC and Knockcroghery signalling projects. The second is a cabling and telecommunications project entered into by CIE and the telecommunications company, Esat.

5 The first project was the result of what was seen by CIE as the need, in the interests of safety, to replace the old form of semaphore signalling in use on the railway lines to Sligo, Galway, Waterford and Tralee with a centrally controlled system, which is less complex than that used on the busier double track routes, and which has been termed "Mini-CTC". The second project envisaged the development by Esat of a fibre optic network over CIE property, the basis of which was that East would be allowed lay its cables on CIE property and would supply them free of charge but would share Iarnród Éireann's costs of installing its own Mini-CTC cables.

6 Previous signalling projects had been installed by Iarnród Éireann with materials purchased externally from a major signalling equipment supplier. For the new project, it was decided to invite tenders for the re-signalling project on a "turn key" basis: the chosen contractor would supply all the relevant signalling and telecommunications equipment and install it themselves. The tendering procedure involved was governed by European Union requirements and ultimately the contract was awarded to an Italian company called Sasib: they were the lead contractors for the project, but were associated in carrying it out with an Irish company specialising in cable laying called Modern Networks Limited ("MNL"). The total value of the contract was £14 million.

7 It is not in dispute in these proceedings that difficulties were experienced from the beginning of the project and that it became evident that there would be significant increases in the costs. A company called Alstom - who had now acquired Sasib - and MNL, in September 1999, produced two separate evaluation documents, which indicated a possible outturn cost of £40 million approximately. This very considerable increase in the costs of the project was a major factor in the establishment of the sub-committee.

8 Mr. McDonnell appeared before the Joint Committee on Public Enterprise and Transport when they met to consider the whole matter, as did other personnel from CIE. Mr. McDonnell died before the sub-committee began its hearings and, because the applicant and her children were concerned that the proceedings of the sub-committee might affect his good name and reputation, the applicant asked the sub-committee, through her solicitor, to grant her a right of representation on her own behalf and on behalf of her children. The sub-committed acceded to that application on the 18th July, 2001.

9 On the 3rd October last, the High Court (Kelly J) gave the applicant leave to apply by way of judicial review for a number of reliefs arising out of the conduct by the sub-committee of its proceedings. In addition, the order provided

"That the said proceedings [of the sub-committee] hereinbefore referred to be stayed until the determination of the application for judicial review or until further order or until the stay of proceedings shall have lapsed by reason of the applicant's failure to serve an originating Notice of Motion herein within the proper time."

10 The order further went on to provide

"That the respondents be at liberty to apply to this court on twenty four hours notice to have the stay hereinbefore granted, discharged or varied."

11 An application to discharge the stay thus granted was made on behalf of the respondents to the High Court and was heard by Ó Caoimh J on the 15th October. For the reasons set out in a comprehensive ex-tempore judgment, he discharged the stay on the proceedings of the sub-committee. From that judgment and order, the respondents have now appealed to this court. Initially, an application was made to the court for an order staying the order of Ó Caoimh J until the appeal could be determined. However, all parties recognised the importance of having an expeditions hearing of the appeal itself and, on the basis that the appeal would be heard last Friday, the sub-committee undertook not to resume its proceedings between then and the hearing of the appeal. Detailed...