Oliver Barry v Mr Justice Fergus Flood and Others

JurisdictionIreland
JudgeMs. Justice Iseult O'Malley
Judgment Date12 April 2013
Neutral Citation[2013] IEHC 171
CourtHigh Court
Date12 April 2013

[2013] IEHC 171

THE HIGH COURT

RECORD NUMBER 605JR/2011
Barry v Justice Flood & Ors
No Redaction Needed
JUDICIAL REVIEW

BETWEEN

OLIVER BARRY
APPLICANT

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
RESPONDENT

MURPHY v FLOOD 2010 3 IR 136

TRIBUNALS OF ENQUIRY EVIDENCE ACT 1921 S1(2)

TRIBUNALS OF ENQUIRY EVIDENCE (AMDT) ACT 1979 S3

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

TRIBUNALS OF ENQUIRY EVIDENCE (AMDT) ACT 1997 S3

DEROISTE v MIN FOR DEFENCE 2001 1 IR 190

BTF v DPP 2005 2 IR 559

O'BRIEN v MORIARTY (1) 2006 2 IR 415 2005/45/9442 2005 IEHC 343

CONSTITUTION 34.1

CONSTITUTION 37

CONSTITUTION 38.1

A v GOVERNOR OF ARBOUR HILL PRISON 2006 4 IR 88

RSC O.84

MURPHY v AG 1982 IR 241

BYRNE, STATE v FRAWLEY 1978 IR 326

RAINSFORD v CORPORTION OF LIMERICK 1995 2 ILRM 561

CADDER v HM ADVOCATE 2010 UKSC 43

GOODMAN INTERNATIONAL v HAMILTON 1992 2 IR 542

TRIBUNAL OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S4

RICHARDSON v JUDGE MAHON & ORS 2013 IEHC 118

Costs – Application for costs – Refusal for costs based on conduct of applicant – Delay in application

Facts: The applicant had previously been refused an application for costs based on the finding that he had as a witness obstructed and hindered the tribunal headed by the respondent. A further delayed request was made to review the costs hearing which was declined. In the case the applicant sought an order of certiorari challenging that decision and the earlier ruling on the ground that they were ultra vires.

O”Malley J considered the delay to be excessive and not sufficiently justified or explained by the applicant. The decision to appeal was based on the case of Murphy v Flood and Ors [2010] 3 IR 136 where it was considered beyond the Tribunal”s jurisdiction to hold that costs could be refused on the basis that the applicant”s conduct had hindered and obstructed the hearing.

The reasons offered for the refusal of the re-hearing of costs for the applicant in the light of the Supreme Court judgment however concentrated on time limits and did not properly address the issue of the Tribunal”s jurisdiction.

The applicants request for a re-hearing was remitted to the tribunal for re-consideration.

Introduction
1

The applicant is a business man who in the late 1980s/early 1990s was involved in the establishment and promotion of Century Radio. Century was a short-lived radio station, intended to be a fully-licensed competitor to RTE radio. It collapsed in 1991.

2

The relationship between Century and the then Minister for Communications, Mr. Ray Burke, and in particular a payment of IR £35,000 by the applicant to Mr. Burke in May, 1989, became one of the matters investigated by the Tribunal of Inquiry into Certain Planning Matters and Payments (whose Sole Member at the time was the first named respondent). In its Second Interim Report, published on the 26 th September, 2002, the Tribunal found that this was a corrupt payment, solicited by Mr. Burke and paid to him as a bribe to act in Century's interests when performing his public duties as a Minister. The Report records that the Tribunal was satisfied that the applicant had hindered and obstructed the Tribunal by, in essence, failing to provide a truthful account in relation to the circumstances of the payment.

3

In September, 2004, the applicant submitted an application to the Tribunal, in the person of the second named respondent, ("the Chairman") for his costs. In October, 2004 the Chairman refused that application. The ruling was made largely on the basis that the applicant had been found to have obstructed and hindered the Tribunal. The applicant took no challenge to either the findings of the Tribunal or the ruling on costs at that time.

4

On the 21 st April, 2010 the Supreme Court delivered its decision in the case of Murphy v Flood [2010] 3 IR 136 ( Murphy). The applicant in those proceedings was also a person against whom the Tribunal had made findings of obstruction and hindrance by failing to give a truthful account of certain matters to the Tribunal, and who had in like manner been refused his costs. The Supreme Court held, in summary, that since obstruction and hindrance were criminal offences the Tribunal had no power to make such a finding and had further erred in relying on the finding in its decision on the costs application.

5

The applicant herein then initiated correspondence requesting the Chairman to review/vacate the costs ruling in his own case. Ultimately, by letter dated the 7 th March, 2011, the Chairman declined to so do. The applicant now challenges that decision and also the ruling made in 2004.

The Tribunal and the 2 nd Interim Report
6

On the 4 th November, 1997 the Tribunal to Inquire into Certain Planning Matters and Payments was established by Ministerial Order. On foot of a later extension of its terms of reference, the Tribunal inquired into a number of allegations relating to the activities of Mr. Ray Burke. These and other, unrelated, matters within the terms of reference are dealt with in the Second Interim Report of the Tribunal, published on the 26 th September, 2002. As set out in the report, the Tribunal found that in 1989, the applicant made a corrupt payment of £35,000 to Mr. Burke for the purposes of ensuring that Mr. Burke acted to serve the interests of Century Radio in his capacity as Minister for Communications. The applicant had at all times maintained that this payment was an ordinary political contribution.

7

Separately, under the heading "Co-operation with the Tribunal", the Report stated at paragraph 11, page 143:

"The Tribunal is satisfied that Mr Oliver Barry obstructed and hindered the Tribunal by:"

(a) Failing to provide a truthful account as to why he had paid Mr Burke £35, 000 in May 1989.

(b) Failing to provide the Tribunal with a truthful account of the role played by him and Mr Stafford in ensuring that Mr Burke issued a Directive in March 1989 to RTE concerning transmission charges.

(c) Failing to give a truthful account of the role played by him and by Mr Stafford in ensuring that Mr Burke would introduce legislation to cap RTE's advertising income, to redistribute RTE's licence fee income and to change the role of 2FM.

(d) Failing to provide a truthful account of the reimbursement to him of the £35,000 aid to Mr. Burke in May 1989.

(e) Failing to comply with the Tribunal's Order for Discovery within the time limited for so doing or within a reasonable time thereafter."

8

By virtue of s. 1(2) of the Tribunals of Inquiry (Evidence) Act, 1921, as amended by s. 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 it is an offence to obstruct or hinder a tribunal.

9

On 21 st September, 2004 the applicant made an application to the Tribunal for costs in the sum of €611,000. By that date Mr. Justice Flood had retired and had been replaced by the three judges named as the second, third and fourth respondents. Issues relating to the costs of modules dealt with by him were therefore referred to the new Chairman of the Tribunal, His Honour Judge Mahon (the second named respondent). In a decision of the 15 th October, 2004, the Chairman refused the applicant costs on the basis of the findings of the Second Interim Report that Mr. Barry had "obstructed and hindered" the Tribunal.

10

In his ruling the Chairman analysed the findings in the Report as follows:

"The non-cooperation findings against Mr. Barry are extensive, significant and serious. Although Mr. Barry allegedly admitted the payment of £35, 000 to Mr. Burke, and while more often than not, the Tribunal preferred Mr. Barry's account of the matters to that of Mr. Burke, the Tribunal found Mr. Barry not to have given truthful evidence. Most importantly, the Tribunal rejected Mr. Barry's contention to the most crucial issue, namely the reasons for the payment of £35, 000 to Mr. Burke. Mr. Barry contended that this payment was a legitimate political donation, but the Tribunal found that the payment was a bribe and it was intended to ensure that Mr. Burke would in his capacity as Minister for Communications assist the private interests of Mr. Barry and his fellow promoters."

It was open to Mr. Barry to provide the Tribunal with a truthful and accurate account of the true reasons for the payment. Had he done so, the Tribunal while concluding the payment to be a bribe, would, I believe, have exonerated him on the issue of cooperation. This in turn would place me in a position where I could seriously consider allowing him, at least, a substantial portion of his costs.

I have considered correspondence between Mr. Barry's solicitors and the Tribunal, and the transcripts of evidence to ascertain if there were significant instances of cooperation on key issues arising in the Century Radio module such as would entitle Mr. Barry to some of his costs. Unfortunately such instances as there were do not take from the fact that Mr. Barry's non-cooperation with the Tribunal was a major feature of his evidence and over shadowed almost all of his evidence and the provision of information to the Tribunal. Mr. Barry's evidence and the information furnished by him to the Tribunal were clearly designed to mislead the Tribunal. In the circumstances I do not believe it appropriate that Mr. Barry be paid his costs."

11

The applicant had not been put on notice that the costs ruling would be dealt with on the basis of the findings of obstruction and hindrance.

The jurisdiction of the Tribunal in relation to costs
12

Section 6(1)...

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1 cases
  • Mistu v The Minister for Justice
    • Ireland
    • High Court
    • 10 August 2023
    ...a decision in appropriate cases where the licence had just expired, or when it was about to expire. Similarly, in Barry v. Flood [2013] IEHC 171, O'Malley J. had held that while a court generally becomes functus officio when it finalised all necessary decisions in relation to a case, she no......

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