Murphy & ors -v- Flood & ors,  IESC 21 (2010)
|Party Name:||Murphy & ors, Flood & ors|
THE SUPREME COURT
Denham J. 119/06
JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH MURPHY STRUCTURAL ENGINEERS LIMITED
- and -
MR JUSTICE FEARGUS FLOOD (THE FORMER SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), HIS HONOUR JUDGE ALAN 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
JUDGMENT of Mr. Justice Hardiman delivered the 21st day of April, 2010.
In this case the appellants, all of whom are part of what I have described below as the "Murphy interests", seek certain declaratory reliefs and seek to quash by judicial review a decision of the Flood Tribunal of the 9th day of November, 2004, refusing them costs. They also seek, if necessary, a declaration that s.6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (hereinafter "the 1979 Act") is unconstitutional.
The Flood Tribunal, more formally the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter "the Tribunal") which was established as long ago as 1997 and is still continuing, is one of the latest in a series of Tribunals of Inquiry established in this country. It is established in the manner envisaged by the Tribunals of Inquiry Act 1921 as amended ("the 1921 Act"). This Act is one of the very last Acts of the old United Parliament of Great Britain and Ireland.
Though there have been Tribunals of Inquiry since the 1920s, the modern series of tribunals may be regarded as commencing with the Beef Tribunal of the early 1990s. These tribunals, as this one amply illustrates, have become immense in their duration and, consequently, in their costs. It is fair to say that both the length of the present inquiries and their cost were utterly unimaginable not only in 1921 but even in 1990 and in 1997.
I am unaware of any international comparator, even amongst States much richer than Ireland, whose public inquiries approach ours for length, complexity or expense, or who exhibit such readiness to have recourse to a tribunal. This is to be deplored from every point of view. I agree with the academic authority cited by Fennelly J. in his judgment in this case who said:"The inquiry is inquisitorial in character, and often takes place in a blaze of publicity. Very damaging allegations may be made against persons who may have little opportunity of defending themselves and against whom no legal charge is preferred".
" an inquisitorial public inquiry is not always easily controllable, and its evils would be grave if its use were not infrequent".
Equally, I wish urgently to recommend to those responsible for the establishment of tribunals a book "Illinois Justice" by Kenneth A. Manaster (University of Chicago Press, 2001). This is an account of an inquiry presided over by the future U.S. Supreme Court Justice John Paul Stevens into suspected bribery by banking interests of Justices of the Illinois Supreme Court. The inquiry began in mid-June 1969 and was over by the end of July 1969. Stevens announced the terminal date before he began his work. He insisted on the narrowest possible terms of reference. He brooked no extension of them. The cost of his six week inquiry was a miniscule fraction of any of our tribunals. In his foreword to Manaster's book, Justice Stevens contrasts this speed and economy with the "Special Counsel" inquiries subsequently established in the United States. Yet none of the latter, to my knowledge, have extended to anything like as long as the present Tribunal.
Both the length and the cost of tribunals are due in part to the enormous powers which have been conferred on them. They have power to require any person or body in the State to cooperate with them, to produce enormous volumes of documentation and to make themselves available to be questioned. Confidentiality can be set aside and the privilege against self-incrimination does not apply. Sometimes the cost of doing this which the individual or company must bear are themselves enormous. It will not be reimbursed for years, if ever. The tribunal may withhold any re-imbursement at all. Furthermore, in recent times tribunals have taken to conducting a good deal of their work in private. This means that the material they have obtained will normally be known only to the tribunal and may be selectively concealed from the parties. This has proved enormously controversial in the past. See the decision of this Court in O'Callaghan v. Mahon  2 IR 32.
If the powers of the tribunals are enormous, so too are the consequences of their deliberations. We have seen people forced to leave public life, put to enormous expense and even imprisoned as a result of their interactions with the Tribunal.
In recent times too, attempts have been made to find cheaper and less cumbersome ways of inquiring into matters of public concern than that provided by the Tribunal of Inquiry. One of these has been the notion of a parliamentary committee. This, indeed, is ironic since the 1921 Act was passed against a background where the previous preferred method of inquiry had been the parliamentary inquiry. These, over a period of centuries, had transpired to be almost invariably corrupt or biased. This unhappy history is summarised in Maguire v. Ardagh  1 IR 385. This case also treats, to some extent, of the unhappy history of certain American congressional inquiries notably those carried out by the now notorious House Committee on Unamerican Activities. For a detailed treatment of the most unfortunate history of British Parliamentary inquiries see Prof. George W. Keeton "Trial by Tribunal; a study of the development and functioning of the tribunal of inquiry", London, Museum Press (1960). In Maguire, a group of gardaí whose involvement in a chain of events in which an unfortunate man was shot dead was the subject of a parliamentary inquiry, succeeded in preventing the inquiry from taking place in a political forum. This led to the establishment of the Barr Tribunal.
Over the years, even the years since 1990, all sorts of people have taken issue with the powers which certain tribunals sought to exercise in their particular cases. Some of these have been commercial interests but at different times gardaí, journalists, a Cardinal, solicitors, members of Dáil Éireann and even the Government of Ireland itself have sought to challenge the powers which a tribunal, commission or parliamentary committee proposed to exercise in their regard. These challenges have given rise to a substantial body of case law, some of which will be referred to below.
The Flood Tribunal and the Murphys.
Of the various tribunals of the last two decades, the Flood Tribunal is by far the best known. In part this is due to its unprecedented length (with the possible exception of its contemporary, the Moriarty tribunal). and its consequent unparalleled expense. But it is also due in part to the very dramatic evidence which has been given before it and to the fact that certain prominent people have been very publicly ruined, and in some cases even imprisoned, as a result of their interaction with it.
Probably no part of the Flood Tribunal's dealings have attracted more public attention than that featuring Mr. James Gogarty who made allegations of the most serious kind against his former employers, the appellants herein, and others. The destructive effect of these allegations on individuals, the flamboyance of Mr. Gogarty as a witness and his striking gift for phrase-making have all contributed to this. One of his phrases, indeed, may fairly be said to have entered the vocabulary of Hiberno-English.
In other words, the political and social impact of the Tribunal has been enormous and is beyond doubt. Equally, its unique capacity to damage, even to ruin, individuals is well established.
The appellants herein, who for reasons shortly to be explained I shall refer to as the "Murphy interests", have been before this Tribunal principally or solely because Mr. Gogarty made allegations against them. Their involvement was involuntary: they were compelled to become involved in the Tribunal, to make discovery or disclosure of huge quantities of material at enormous expense to themselves and to participate in the sittings of the Tribunal for the huge span of 163 sitting days over a period of several years. After all that, the Tribunal made findings adverse to them: they were found to have been involved in the making of corrupt payments and to have "obstructed and hindered" the Tribunal.
On the basis of these findings, when they applied to recover some of the enormous costs they had been put to, they were refused both on the basis of the Tribunal's substantive findings and its findings in relation to "obstruction and hindrance". Furthermore, they are on notice that at a future sitting of the Tribunal it will be urged that the Tribunal, of its own motion, should make the Murphy interests liable, to a greater or lesser degree, for the costs incurred by other interests, or for the costs of the Tribunal itself. This is plainly capable of amounting to a truly enormous financial imposition.
The Murphy interests make a number of complaints about this state of affairs. They say that the Tribunal had simply no power to make findings of "obstruction and hindrance" in relation to them. Secondly, they say that even if the Tribunal had such power in principle, it had no power to make these findings in the manner that it did, which they say was grossly unfair and breached their entitlement to fair procedures. They also say that the process whereby these findings were arrived at was grossly defective and unsustainable in law or in elementary logic. One of the allegations of breaches of fair procedures they make is that they were quite deliberately...
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