Murphy and Others v Flood and Others

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 14 February 2006
• Neutral Citation: [2006] IEHC 75
• Docket Number: Record No.[2004/4910P]
• Court: High Court
• Date: 14 February 2006

[2006] IEHC 75

THE HIGH COURT

Record No.[2004/4910P]

Record No. 2005/100JR

MURPHY & ORS v FLOOD & ORS (PLANNING TRIBUNAL)

Between:

JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH

Plaintiffs

MURPHY STRUCTURAL ENGINEERS LTD

-and-

FEARGUS FLOOD (THE FORMER SOLE MEMBER OF

Defendants

THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), ALAN MAHON, MARY FAHERTY AND GERALD KEYS (THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), IRELAND AND THE ATTORNEY GENERAL

AND

Between:

JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH

Applicants

MURPHY STRUCTURAL ENGINEERS LTD.

-and-

JUDGE ALAN MAHON (THE CHAIRMAN OF THE

Respondents

TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), IRELAND AND THE ATTORNEY GENERAL

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

F (BT) v DPP 2005 2 ILRM 367

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

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

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 2004 S2(1)

FINNERTY v WESTERN HEALTH BOARD UNREP HIGH CARROLL J 5.10.1998 1998/19/7047

NEWBURY DISTRICT COUNCIL v SECRETARY OF STATE FOR THE ENVIRONMENT 1981 AC 578 1980 2 WLR 379

REPROTECH LTD v EAST SUSSEX COUNTY COUNCIL 2003 1 WLR 348 1980 2 WLR 379

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

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

RSC O.84 r21

O'DONNELL v DUN LAOGHAIRE CORPORATION 1991 ILRM 301

FUTAC SERVICES LTD & REEFERCARE LTD v DUBLIN CITY COUCIL & DUBLIN PORT CO LTD UNREP HIGH SMYTH J 24.6.2003 2003/23/5269

O'CALLAGHAN v MAHON & ORS UNREP SUPREME 9.3.2005

O'BRIEN v MORIARTY (PAYMENTS TRIBUNAL) 2005 2 ILRM 321

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

GOVERNMENT OF IRELAND REPORT OF THE INSPECTORS APPOINTED TO ENQUIRE INTO THE AFFAIRS OF THE ANSBACHER (CAYMAN) LTD 2002

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) (NO2) ACT 1998

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(2)(a)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(2)(b)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(2)(c)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(2)(d)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(2)(e)

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(2)(f)

CONSTITUTION ART 36

CONSTITUTION ART 37

CONSTITUTION ART 38

CONSTITUTION ART 40.1

CONSTITUTION ART 40.3

GALLAGHER v CORRIGAN UNREP HIGH BLAYNEY J 1/2/199 1988/2/284

GOODMAN INTERNATIONAL v HAMILTON 1992 2 IR 546 1992 ILRM 145

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S3(2)

DUBLIN CITY COUNCIL v FENNELL & ORS 2005 2 ILRM 288

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

MIN FOR TOURISM & TRANSPORT DISASTER AT WHIDDY ISLAND BANTRY COUNTY CORK REPORT OF TRIBUNAL OF INQUIRY

MIN FOR ENVIRONMENT REPORT OF THE TRIBUNAL OF INQUIRY ON THE FIRE AT THE STARDUST ARTANE DUBLIN ON 14TH FEBRUARY 1981

IRISH PHARMACEUTICAL UNION v EMPLOYMENT APPEALS TRIBUNAL 1987 ILRM 36

GOODMAN v MIN FOR FINANCE 1999 3 IR 356

PRACTICE AND PROCEDURE

Remedies

TRIBUNALS

Tribunal of inquiry

Declaration - Abuse of process - Delay -Estoppel - Whether claim for declaratory relief in plenary proceedings constitutes abuse of process - Whether proceedings should have been by way of application for judicial review- Whether O 84 provides exclusive procedure for persons seeking declaratory relief in matters of public law - O'Reilly v Mackman [1983] 2 AC 237 not followed - Whether time constraints under O 84 apply to plenary proceedings - Whether estoppel appropriate in matters of public law - Whether delay in seeking legal redress - Finnerty v Western Health Board (Unrep, Carroll J, 5/10/1998)distinguished; De Róiste v Minister for Defence [2001] 1 IR 190, O'Callaghan v Mahon [2005] IESC 9 (Unrep, SC, 9/3/2005)and O'Brien v Moriarty [2005] IESC 32, [2005] 2 ILRM 321 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 -Relief refused (2004/4910P & 2005/100JR -Smyth J - 14/2/2006) [2006] IEHC 75 Murphy v Mr Justice Flood; Murphy v Judge Mahon

1 MR. JUSTICE T.C. SMYTH DELIVERED JUDGEMENT, AS FOLLOWS, ON TUESDAY 14TH FEBRUARY 2006

2 The Tribunal and its Reports.

3 A Tribunal of Inquiry into Certain Planning Matters and Payments (“the Planning Tribunal”) was established by Ministerial Order, on the 4th November 1997, to enquire urgently into the matters of urgent public importance set forth in its Terms of Reference. To the extent necessary for the determination of these proceedings, the following extracts are in point:-

"That Dáil Eireann resolves:

A. That it is expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to enquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it see fit, in relation to the following definite matters of urgent public importance."

4 These are indicated and enumerated and (inter alia) include -

"4(a) The identity of all recipients of payments made to .... members of .... the Oireachtas, past or present, or officials of a Dublin local authority or other public official by Mr. Gogarty or Mr. Bailey or a connected person or company within the meaning of the Ethics in Public Office Act, 1995, from 20th June 1985 to date, and the circumstances, considerations and motives relative to any such payment."

"B(v) to report on an interim basis not later than one month from the date of the establishment of the Tribunal or the tenth day of any oral hearing, whichever shall first occur, to the Clerk of the Dáil" on specific matters.

"C. And that the person or persons selected to conduct the Inquiry should be informed that it is the desire of the House that û"

(a) the Inquiry be completed in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to it, and, in respect of the matters referred to in paragraphs 1 to 4 above, if possible, not later than the 31st December, 1997, and

(b) all costs incurred by reason of the failure of individuals to cooperate fully and expeditiously with the Inquiry should, so far as is consistent with the interests of justice, be borne by these individuals."

5 On 26th February 1998, the Sole Member or Chairman (hereinafter generally referred to as “the Tribunal” which expression shall be indicative by its use and context) availing of the provisions of B(v) ante sought/requested the Oireachtas to amend the original Terms of Reference. By instrument dated 15th July 1998, the Minister for the Environment and Local Government issued Amended Terms of Reference to the Tribunal. While the amended Terms of Reference are more extensive and direct enquiry into any substantial payments directly or indirectly to a named politician (Mr. Raphael Burke) and expressly provide for interim reports the desire of the House as expressed in paragraph (F) is substantially the same as that contained in paragraph (C) of the original Terms of Reference.

6 When the Tribunal came to make interim reports and in particular its Second Interim Report published 26th September 2002 (hereinafter referred to as the 2nd Report) it incorporated as Appendices A and B the original and amended Terms of Reference. I am satisfied as a matter of probability that the clear provisions of the original and amended Terms of Reference must be taken as something that would have been known to the Applicants, who gave evidence to the Tribunal and who had the benefit of legal advice and were granted representation and availed of the right to be represented before the Tribunal. When the Tribunal issued the 2nd Report, to which there is a preface, which is a form of explanation of its subject, purpose, scope and method of conduct, it (inter alia) states as follows:-

"All citizens have a duty to cooperate and assist a Tribunal and to tell the truth when summoned to appear at a public hearing. It is with considerable regret that I have concluded that I must report, as one of my findings, that certain parties who appeared before me chose not to cooperate with the Tribunal in its task, and, further, having been duly sworn did not to tell the truth. The extent to which their actions may have involved them in breaches of the criminal law is a matter upon which the Director of Public Prosecutions has absolute and exclusive jurisdiction. I have decided to forward a copy of my report to him to take such steps, and to do with it, what he, in his absolute discretion, considers appropriate. I am very mindful of the significant costs which have been incurred in conducting the Inquiry to date. I have endeavoured to conduct the Inquiry in as economical a fashion as possible, having regard to the rights of those appearing before the Tribunal and my obligations to the Oireachtas."

7 [Chapter 17 of the 2nd Report itself set out at paragraphs 17.01, 17.02 and 17.03 what I believe to be the true legal obligations under the Acts on all parties and persons required to provide information to the Tribunal].

8 The Introduction makes it clear that the Tribunal considered it necessary to do so for a number of reasons (inter alia) -

"1. The Tribunal has heard sufficient evidence in public to enable to pronounce with finality upon certain payments made to Mr. Burke."

9 The report does not record that it is pronouncing with finality on anything else (e.g. under 4(a) of either the original or amended Terms of Reference) notwithstanding that evidence had been heard in "the Gogarty Module" regarding payments to Mr. George Redmond, in that regard Chapter 17, entitled "Co-Operation with the Tribunal" it records in detail the sentiments and approach to its task enunciated in the preface, and also its findings.

10 At paragraph 17-04, it is recorded:

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