Murphy and Others v Justice Flood and Others

• Jurisdiction: Ireland
• Judge: Denham J.,Mr. Justice Hardiman,Mr. Justice Fennelly
• Judgment Date: 21 April 2010
• Neutral Citation: [2010] IESC 21
• Court: Supreme Court
• Docket Number: [S.C. No. 119 of 2006]
• Date: 21 April 2010

Murphy & Ors v Justice Flood & Ors

21.04.10

Between/

Joseph Murphy, Frank Reynolds and Joseph Murphy Structural Engineers Limited

Applicants/Appellants

Plaintiffs/Appellants

and

Mr. Justice Feargus M. Flood (The former Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments) His Honour Judge Alan P. Mahon, Her Honour Judge Mary Faherty and His Honour Judge Gerald Keys (The Members of the Tribunal of Inquiry into Certain Planning Matters and Payments), Ireland and the Attorney General

Respondents/Respondents

Defendants/Respondents

[2010] IESC 21

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

[Appeal No: 119/2006]

(High Court Record No.4910P/2004)

THE SUPREME COURT

JUDICIAL REVIEW

Delay

Extension of time - Challenge to findings and rulings of tribunal - Challenge to findings in two interim reports of tribunal - Whether good reason for extension of time to challenge earlier report - Whether challenge to findings in later report brought promptly - O'Brien v Moriarty [2005] IESC 32, [2006] 2 IR 221 and O'Donnell v Corporation of Dun Laoghaire [1991] ILRM 301 followed; O'Reilly v Mackman [1983] 2 AC 237 not followed- Plaintiffs' appeal allowed (119/2006 - SC - 21/4/2010) [2010] IESC 21

Murphy v Judge Mahon

TRIBUNAL OF INQUIRY

Costs

Fair procedures - Non-co-operation - Obstruction and hindrance - Effect of order - Whether tribunal has jurisdiction to make finding of obstruction and hindrance - Whether costs ruling based on finding of obstruction and hindrance based on relevant and legitimate considerations - Whether tribunal entitled to have regard to substantive findings when determining issue of costs - Whether findings of tribunal in breach of fair procedures and natural justice - Whether party to tribunal entitled to notice of possibility of findings of obstruction and hindrance against them - Whether findings reached through reasonable and rational process - Whether failure to disclose relevant material constitutes breach of fair procedures - In re Haughey [1971] IR 217, Maguire v Ardagh [2002] 1 IR 385, O'Callaghan v Mahon [2005] IESC 9, [2006] 2 IR 32, P & F Sharpe Ltd v Dublin City and County Manager [1989] IR 701, Kennedy v Law Society of Ireland (No 3) [2002] 2 IR 458 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 followed - Tribunals of Inquiry (Evidence) Act 1921 (11 & 12 Geo V, c 7), s 1(2) - Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (No 3), ss 3 and 6(1) - Tribunals of Inquiry (Evidence) (Amendment) Act 1997 (No. 42), s 3 - Plaintiffs' appeal allowed (119/2006 - SC - 21/4/2010) [2010] IESC 21

Murphy v Judge Mahon

Facts: The appellants sought to quash a decision of the Flood Tribunal of 2004 refusing them costs and they also sought a declaration that s. 6 Tribunals of Inquiry (Evidence) (Amendment) Act 1979 was unconstitutional. The question arose as to whether an individual who was adversely affected by the findings of the Tribunal had to pay some or all of their costs to the Tribunal. The Court had to consider whether the Tribunal was entitled to founds its decision to refuse an order for costs on its substantive findings of corruption and whether the Tribunal had made valid findings of obstruction and hindering the Tribunal

Held by the Supreme Court in allowing the appeal (Denham, Hardiman, Geoghegan, Fennelly, Finnegan JJ.). Per Fennelly J.: that the Court would allow the appeal and make a declaration that the Tribunal was not entitled to make findings of hindering and obstructing in respect of the appellants contained in the Second and Third Interim Reports. The Court would quash by certiorari the decision of the Tribunal dated 9 November 2004. The Tribunal in naming a decision to award costs was not entitled to have regard to its substantive findings on the subject matter of its Terms of Reference. Per Hardiman J.: On the substantive grounds that obstruction and hindrance were outside the terms of reference of the Tribunal, the Court would quash the decision of 2004. Per Denham J.: the appeal would be allowed and a declaration granted that the Tribunal was not entitled to make the findings of obstruction and hindrance by the appellants.

Reporter: E.F.

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1979 S6(1)

CONSTITUTION ART 34

CONSTITUTION ART 37

GOODMAN INTERNATIONAL v HAMILTON 1992 2 IR 542

MCDONALD v BORD NA GCON 1964 IR 350

PLUNKETT, STATE v REGISTRAR OF FRIENDLY SOCIETIES 1998 4 IR 1

SOLICITORS ACT 1954, IN RE 1960 IR 239

TODD v MURPHY 1999 2 IR 1

CAHILL v SUTTON 1980 IR 269

O'CALLAGHAN v JUDGE MAHON & ORS (NO.1) 2006 2 IR 32

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1997 S3(1)

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

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1997 S3

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1979 S3(2)

TRIBUNALS OF ENQUIRY (EVIDENCE)(AMDT) ACT 1979 S3(1)

HAUGHEY v MORIARTY & ORS 1999 3 IR 1

LAW REFORM COMMISSION PUBLIC INQUIRIES INCLUDING TRIBUNALS OF INQUIRY CP 22-2003

REPORT ON PUBLIC INQUIRIES INCLUDING TRIBUNALS OF INQUIRY LRC 73-2005

MAGUIRE v ARDAGH 2002 1 IR 385

KEETON TRIAL BY TRIBUNAL LONDON MUSEUM PRESS 1960

CONSTITUTION ART 38.1

CONSTITUTION ART 34.1

CONROY v AG 1965 IR 411

KELLY IRISH CONSTITUTION 4ED DUBLIN 2003 1040

VICTORIA v AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES FEDERATION 1982 152 CLR 25

HEGARTY, IN RE 1971 IR 217

TRIBUNALS OF ENQUIRY ACT 1921 (UK) S1(1)

WADE & FORSYTH ADMINISTRATIVE LAW 10 ED OXFORD 2009

TRIBUNALS OF ENQUIRY EVIDENCE ACT 2004 S2

O'REILLY v MACKMAN 1983 2 AC 237 1983 1982 3 WLR 1096

RSC O.84

O'DONNELL v DUNLAOGHAIRE CORP 1991 ILRM 301

O'BRIEN v MORIARTY 2006 2 IR 221

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & ORS 2003 2 IR 270

KENNEDY v LAW SOCIETY OF IRELAND (NO 3) 2002 IR 458

PROVINCIAL PICTURE HOUSES LTD v WEDNESDAY CORP 1948 1 KB 223

P & F SHARPE LTD v DUBLIN CITY & CO MANAGER 1989 IR 701

1 Judgment delivered on the 21st day of April, 2010 by Denham J.

2 Judgments delivered by Denham J, Hardiman J and Fennelly J. Geoghegan J. & Finnegan J. concurring

3 1. This appeal raises the issue of costs. Legally, the issues raised by the parties bring us to the cusp between the authority of a tribunal and the administration of justice. Financially, the issues have important consequences for the parties.

4 Current tribunals, unlike those of the 20 ^th Century, have been at hearing for many years. Consequently, a person may have incurred considerable costs in appearing before a tribunal, costs which may tax at millions of euros. Thus the issue of costs has a significant monetary dimension.

5 2. The appellants applied to the Tribunal for their costs of appearing at the Tribunal and were refused by the Tribunal, and, on an application for judicial review, by the High Court. They have appealed to this Court.

6 3. This is an appeal by Joseph Murphy, Frank Reynolds and Joseph Murphy Structural Engineers Limited, the applicants/appellants, referred to in this judgment as "the appellants", from the order and judgment of the High Court (Smyth J.) which judgment was delivered on the 14 ^th February, 2006, and in which the learned High Court judge dismissed the claim of the appellants.

7 4. Mr. Justice Feargus M. Flood (the former Sole Member of the Tribunal of Inquiry into certain planning matters and payments), His Honour Judge Alan P. Mahon, her Honour Judge Mary Faherty, and His Honour Judge Gerald Keys (Members of the Tribunal of Inquiry into Certain Planning Matters and Payments), are referred to as "the Tribunal" in this judgment. His Honour Judge Alan P. Mahon is referred to as "the Chairman".

8 5. The fifth and sixth named respondents, Ireland and the Attorney General, are referred to as "the State".

9 6. At the core of the appeal brought by the appellants are rulings of the Tribunal on costs. At issue is an application by the appellants for an order of costs in their favour. In these court proceedings the appellants appeal the decision of the High Court and challenge a ruling made by the Tribunal on the 9 ^th November, 2004 in which the Chairman refused to award them any of their costs.

10 7. The Tribunal has not yet addressed the issue as to whether an order for costs should be made against the appellants. The appellants submit that they stand in real and imminent danger that orders for costs will be made against them by the Tribunal.

11 8. Alternatively, the appellants seek to challenge the validity of s.6(1) of the Tribunals of Inquiry (Evidence)(Amendment) Act, 1979, as amended, on the grounds that it permits the Tribunal to administer justice contrary to Articles 34 and 37 of the Constitution of Ireland.

Submissions

12 9. (a) Mr. Michael Cush, S.C., counsel for the appellants, submitted in written and oral submissions that the learned High Court judge had erred. The submissions included the following. Counsel stated that there was no challenge by the appellants to the findings of corruption by the Tribunal. However, counsel referred to part of the Second Interim Report to explain that while there was no appeal against the substantive findings of corruption, the findings that the appellants had knowingly made a corrupt payment had led to the findings of obstruction and hindrance, and that the appellants were challenging the findings of obstruction and hindrance as, it was submitted, the Tribunal could not make such findings. (b) Further, Counsel submitted that there should have been notice of a hearing on any issue of obstruction and/or hindrance, and separate hearings on those issues, at which the appellants would have made submissions. In such submissions the appellants would have advanced arguments on the frailty of the findings...