Supreme Court allows appeal where Tribunal Chairman lacked power to find obstruction, invalidating costs decision.

THE SUPREME COURT

[Appeal No: 119/2006]

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

Between/

Joseph Murphy, Frank Reynolds and

Joseph Murphy Structural Engineers Limited

Applicants/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

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

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.

Current tribunals, unlike those of the 20th 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.

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.

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 14th February, 2006, and in which the learned High Court judge

dismissed the claim of the appellants.

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".

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

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 9th November, 2004 in which the Chairman refused to

award them any of their costs.

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.

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

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 of the Tribunal. Counsel argued that the decision

on costs was based on the findings of obstruction and hindrance, which in turn were grounded on the findings of

corruption. Counsel submitted that the finding of corruption cannot affect the costs issue, and that the Tribunal had no

power to order costs on the basis of obstruction and hindrance. Counsel submitted that the Tribunal could make a finding

of a failure to co-operate, but that it should not have made findings of "obstructing and hindering". Counsel argued that

the Tribunal could not state that obstructing and hindering is an offence, and then proceed to find that a person has

obstructed and hindered the Tribunal.

(c) Counsel referred to the Third Interim Report of the Tribunal. This report related to payments to Mr. George Redmond.

Counsel pointed out that there was a very close link between the evidence of payment to Mr. Burke and the first of two

payments to Mr. Redmond. The only evidence of the first payment to Mr. Redmond was when Mr. Gogarty said, in the car

returning from Mr. Burke's house, that he, Mr. Gogarty, had "sorted" Mr. Redmond a year earlier. As Mr. Redmond's trial

was pending this Third Report was embargoed until after the trial.

(d) Counsel referred to €30,000 paid to Mr. Burke. That sum had come from Joseph Murphy Structural Engineers Ltd's

company funds. Counsel submitted that the issue was whether Mr. Murphy Sr., Mr. Murphy Jr., or the company knew it

had come from the company. Their submission, advanced at the Tribunal, was that they did not know. The Tribunal found

against the appellants, finding that they did know. Counsel submitted that this finding was based on the evidence of Mr.

Gogarty. Thus the credibility of witnesses was at the core of the matter, and especially the credibility of Mr. Gogarty.

(e) Counsel submitted that there was a seamless progression from a finding that something was done that was corrupt, to

a finding of hindrance and obstruction, to the refusal to award costs to the appellants. Counsel submitted that the order

for costs should be quashed because this was an error of law by the Tribunal.

(f) As to the issue of the interpretation of s.6 of the Act of 1979, counsel submitted that McCarthy J. was correct in his

interpretation of the section in Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542, to which interpretation

Finlay C.J. had agreed. Counsel submitted that a tribunal will have an effect on the liabilities of a person if a finding of

fact, e.g. corruption, exposed persons to a liability, such as costs. Further, counsel submitted that if a finding of

corruption led to an order relating to costs that is a liability and is the administration of justice. He pointed out that these

costs had been incurred involuntarily as the appellants were required to appear before the Tribunal.

(g) Counsel submitted that there was no definitive definition of the administration of justice, and he referred to McDonald

v. Bord na gCon [1964] I.R. 350 and In Re Solicitors Act 1954 [1960] I.R. 239. Counsel submitted that in State (Plunkett)

v. Registration of Friendly Societies (No.1) [1999] 4 I.R. 1, the decision of Kenny J. in McDonald v. Bord na gCon had

been misconstrued. Counsel asked the Court to adopt the reasoning of Kingsmill Moore J. in In Re Solicitors Act [1960] I.R.

239, at p.271. Counsel submitted that it was not necessary to tick all the five factors listed by Kenny J. in McDonald v.

Bord na gCon.

(h) Counsel then addressed two locus standi issues. He submitted that if he was correct on his submissions as to the

interpretation of the statute then he did not have to address the constitutionality of the Act of 1979. Counsel stated

that the High Court did not make an order on the constitutionality of the Act on two grounds: First, that the refusal of

the order for costs is caught by Todd v. Murphy [1999] 2 I.R. 1: that if the section were struck down the appellants

could not get an order for costs and therefore had no locus standi and, secondly, that the challenge was premature. On

the prematurity issue counsel opened the judgment of the learned High Court judge and the evidence of Mr. Murphy Jr. He

referred to Cahill v. Sutton [1980] I.R. 269, and submitted that the claim was not premature.

10. Mr. Michael Collins S.C., counsel for the Tribunal, made submissions on the issues, which included the following. The

first issue he addressed was whether the Tribunal, when exercising its discretion on costs under the legislation, is entitled

to take into account its own findings. He pointed out that this was a matter of construction of the amended legislation.

He submitted that on the ordinary and plain meaning of the words it must encompass the substantive findings of the

Tribunal. It was submitted that the Court should apply the clear and plain meaning of the statute and that thus the

Tribunal may take account of the substantive findings of the Tribunal. It was submitted that every finding of a Tribunal is

an expression of opinion and not the administration of justice. Counsel addressed case law and submitted that much of it

was obiter. He submitted that, for example, in Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542, McCarthy

J. was not laying down a rule that you exclude the findings of the Tribunal, he was drawing distinctions between different

types of Tribunals. Further, he submitted that the authorities say that the Tribunal has the power to award costs, and

that this is not the administration of justice as it is not self executing, that the intervention of the Court saves it from

being the administration of justice. Also, it was submitted that the order for costs was based on non-co-operation.

Counsel pointed out that what was at issue in this case was that the Tribunal declined to make an order for costs in

favour of the appellants. He submitted that even if there is an entitlement to legal representation there is no entitlement

to costs. He submitted that the declining of an order for costs was not the administration of justice. Counsel opened and

analysed case law. He submitted that the Tribunal has power to make substantive findings, that the Tribunal has power

to decline to give costs, and that to decline to give costs because of the taking into account the lawful findings does not

render the decision the administration of justice. However, he submitted also that the Tribunal intended to exercise its

discretion solely on the basis of non-co-operation. Counsel pointed to a number of findings including that the appellants

had colluded with other witnesses, and that the Tribunal concluded that there had been a deliberate giving of untrue

evidence. Counsel submitted that the Tribunal held that it would not award costs to the appellant because they did not

co-operate – had they done so, counsel argued, the Tribunal would not have given them all their costs because of the

finding of corruption, but he did not have to go that distance and only the non-co-operation issue is the basis for the

ruling. He argued that the finding of corruption is not a feature in the ultimate decision, which is based on non-co-

operation.

Counsel addressed the second question, as to whether the Tribunal was entitled to make findings of obstruction and

hindrance either a) as a matter of vires, or b) in the manner in which it did. Counsel submitted that it was within the

terms of reference for the Tribunal to identify who had co-operated and then identify how this related to the issue of

costs. He submitted that it was common case that it was open to the Tribunal to find that a party had failed to co-

operate, and that it could find that a party had failed to co-operate in a very serious way. He submitted that a finding of

a very serious lack of co-operation would not be a criminal offence – the Tribunal was not a criminal court of law. The

Tribunal found that there was a serious lack of co-operation and expressed it in the terms in which it did. Counsel

submitted that there was no legal infirmity in the Tribunal using the terms "hindrance and obstruction". That if it is, as he

submitted, within the jurisdiction of the Tribunal to make such a finding, it is not ousted if there is a criminal offence.

Counsel addressed further the issue as to whether the Tribunal was entitled to make findings of obstruction and

hindrance. Reference was made to documents which if obtained earlier might have been helpful in relation to the

credibility of Mr Gogarty as a witness. Counsel stated that in retrospect these documents should have been available in

full to the appellants. The redaction of the documents had been done and this was incorrect in law in light of O'Callaghan

v. Judge Mahon & ors (No.1) [2006] 2 I.R. 32. The full documents were excluded from the Tribunal hearings on the

grounds that they were held not to be relevant. They were disclosed in these proceedings on discovery. Counsel

submitted that they were not relevant to this judicial review, that they were not relevant in the High Court or this Court

as there is no attack on the substantive findings of the Tribunal.

Counsel also addressed other issues, including that of delay.

11. Mr John Gleeson S.C., counsel for the State, submitted that the Court should not consider or adjudicate upon any

aspect of the constitutional challenges in these proceedings. However, it was submitted that if the Court considers it

appropriate to adjudicate upon any aspects of the constitutional challenges it should do so only to the extent necessary.

Without prejudice to the above, it was submitted that the appellants' various constitutional claims are, in any event,

without merit, and should be dismissed.

Counsel for the State submitted that s.3(1) of Tribunals of Inquiry (Evidence)(Amendment) Act, 1997, which substitutes

s.6(1) of the Act of 1979, varied from the earlier section in (a) stipulating a non-exhaustive list of relevant matters to

which the Tribunal must have regard when exercising its discretion under the section, including whether a person "fail[ed]

to co-operate with… or knowingly g[ave] false information to the tribunal"; (b) providing that an order for costs may be

made on the application of any person appearing before the Tribunal, or on the motion of the Tribunal, or the Chairperson;

and (c) providing for the making of an order in respect of the costs incurred by the Tribunal.

Counsel for the State submitted that the Tribunal applied the foregoing analysis in determining the principles to be applied

to cost applications by persons in respect of whom findings of corruption had been made, and that it was correct to do

so. Counsel for the State submitted that s.6 of the Act of 1979 clearly empowers the Tribunal to have regard to its

substantive findings when exercising its discretion under that section in relation to costs.

Specific Ruling on Costs by the Chairman

12. On the 9th November, 2004 the Chairman of the Tribunal made a specific ruling on costs in relation to Joseph Murphy

Structural Engineers (JMSE), its associated companies, directors, officers and auditor. It is this ruling which is in issue in

this appeal. Relevant portions of that ruling are as follows:-

“The [appellants] were granted legal representation by the Tribunal on 2nd February, 1998, and were represented

collectively by senior and junior counsel and by solicitors, Fitzsimons Redmond.

Altogether, the [appellants]gave evidence in public for approximately 35 days and an additional 14 days were

engaged in taking evidence on commission from Mr. Joseph Murphy Senior (now deceased) in Guernsey, Channel

Islands. An additional four days were taken up with the reading of the evidence of the late Joseph Murphy Senior

into the public record of the Tribunal.

No estimate of the costs has been submitted to the Tribunal, but undoubtedly the costs in question are very

substantial. It is a matter for the Taxing Master of the High Court to determine the amount of any costs awarded

to any party by the Tribunal.

The [appellants'] legal representatives participated fully in the public hearings in the Gogarty Module of the

Tribunal, and their clients involvement in the matters inquired into was reported upon by the Tribunal in its Second

Interim Report. In addition, Mr. Joseph Murphy Junior and Mr. Frank Reynolds activities were also the subject of

adverse findings by the Tribunal in its Third Interim Report.

On the issue of co-operation with the Tribunal, findings of obstructing and hindering the Tribunal were made and I

will summarise these as follows.

…

Mr. Joseph Murphy Junior

Second Interim Report

(a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at the home of

Mr. Burke in June 1989, at which he handed to Mr. Burke a sum of not less than £30,000;

(b) Failing to give a truthful account of his dealings with Mr. Bailey with regard to the participation proposal, in

which it was envisaged that Mr. Michael Bailey would receive 50% of the value of Mr. Murphy’s North Dublin lands

in return for procuring planning permission and building byelaw approval in respect thereof;

(c) Giving false account of the involvement of Mr. James Gogarty from the sale of the Murphy lands and the role

played by him in connection with the payment of JMSE monies to Mr. Burke;

(d) Giving a false account of his dealings with Mr. Michael Bailey subsequent to the publication of the Sunday

Business Post articles;

(e) Falsely constructing an alibi which was untrue.

Third Interim Report

(a) Failing to give a truthful account of the circumstances in which he came to pay Mr. George Redmond a sum of

not less than £12,246 for devising the strategy that resulted in Forrest Road service charges and levies being fixed

at their 1983 level in respect of any similar development taking place within two years of 21st June 1988

(b) Failing to give a truthful account of the circumstances in which he came to pay Mr. George Redmond £15,000

at the Clontarf Castle Hotel in July 1989.

[…]

Mr. Frank Reynolds (Managing Director, JMSE)

Second Interim Report

(a) Failing to give a truthful account of his involvement in the assembly of funds which were paid to Mr. Burke by

JMSE;

(b) Falsely ascribing to Mr. Gogarty a role in the payment of monies to Mr. Burke which he knew to be untrue;

(c) Failing to give a truthful account of his dealings with Mr. Michael Bailey;

(d) Failing to give a truthful account of the steps taken by him subsequent to the publication of the Gogarty

allegations in the Sunday Business Post additions of 30th March and 6th April, 1996;

(e) Colluding with Mr. Joseph Murphy Senior, Mr. Joseph Murphy Junior and Mr. Roger Copsey to present a false

account to the Tribunal of the role played by Mr. James Gogarty and the payment of JMSE monies to Mr. Ray

Burke.

Third Interim Report

(a) Failing to acknowledge that he attended a meeting at the Clontarf Castle Hotel where a payment of £15,000

was paid by Mr. George Redmond to Mr. Joseph Murphy Junior in his presence and in the presence of Mr. Michael

Bailey and Mr. James Gogarty.

……

In relation to the substantive matters which were investigated by the Tribunal the late Mr. Joseph Murphy Senior,

Mr. Joseph Murphy Junior, Mr. Roger Copsey and Mr. Frank Reynolds were found to have knowingly engaged in or

assisted corruption. Adverse findings on substantive issues, but of a less serious nature, were also found as

against Mr. Tim O’Keeffe and Mr. John Bates.

Both written and oral submissions have been made on the Applicants’ behalf in support of their application for

costs, and I have fully considered these together with the submissions made on behalf of the Minister for Finance

and the Attorney General acting on behalf of the public interest.

In his oral submissions, Mr. Cush, S.C. for the Applicants contended that while obviously adverse findings were

made against his clients, some issues dealt with by the Tribunal and which involved his clients produced, in effect,

neutral or even positive findings relating to their involvement with the Tribunal, and that in respect of some

matters, the applicants positively assisted the Tribunal. In particular Mr. Cush highlighted the extensive discovery

of documents by the applicants and in respect of which, he suggested, no complaint was made by the Tribunal. In

fact this is incorrect, as an adverse finding was made against the late Mr. Joseph Murphy Senior in that he was

found to have failed to provide proper discovery to the Tribunal in breach of an Order for Discovery made against

him.

However, leaving that aside, and having regard to the extensive discovery that was in fact made by the

applicants, it is certainly not unreasonable for Mr. Cush to emphasise the substantial compliance with the Tribunal

discovery requirements by his clients over a prolonged period of time.

The issue I have to consider is whether, having regard to the entire of the relationship between the Applicants and

the Tribunal, a case can reasonably be made on behalf of the Applicants that the incidences of co-operation on the

applicants’ part were such as would enable me to, for good reason, exclude or separate them from the very

serious adverse findings relating to co-operation that were found by the Tribunal in both the Second and Third

Interim Reports.

The mere fact that an Applicant for costs may have co-operated in respect of some issues cannot be viewed as

positive in terms of his behaviour, if the overall thrust of his involvement with the Tribunal was to have been

knowingly untruthful, obstructive and misleading.

The Applicants, were between them found to have knowingly given false evidence, and in the case of the late Mr.

Joseph Murphy Senior, Mr. Joseph Murphy Junior, Mr. Frank Reynolds and Mr. Roger Copsey to have colluded with

each other to mislead the Tribunal. I must accept these findings and I have to assume they were properly and

fairly made.

Taken as a whole, the adverse findings of obstructing and hindering the Tribunal made against the Applicants were

so serious, so extensive and so far reaching, as to clearly lead any reasonable person considering them to the

conclusion that the individuals concerned, particularly those I have named in the preceding paragraph, were intent

from the outset in ensuring that the Tribunal would not find the truth.

To put it more simply, the conduct of the Applicants in their dealings with the Tribunal was unlawful and

disreputable, and amounts to a fundamental disregard for the very purpose of the Tribunal, and their legal duty to

co-operate with it.

In spite of the serious findings of corruption on the part of some of the Applicants, I would have considered

awarding them a portion of their cost had they chosen to fully and honestly co-operate with the Tribunal. I am

firmly of the view that there should be a strong incentive for a party to co-operate with the Tribunal and that any

party who fully co-operates with the Tribunal by giving a truthful account of their knowledge of the events under

inquiry can reasonably expect to recover at least a significant portion of his or her costs notwithstanding adverse

findings on substantive issues such as corruption.

In all the circumstances therefore, I do not believe it would be appropriate to award any costs to the Applicants

and I therefore refuse their application.”

[Emphasis added]

Issues Agreed

13. The issues arising on this appeal were agreed by the parties. They are as follows:-

(i) Was the Tribunal entitled to take into account its substantive findings of corruption when exercising its

jurisdiction in respect of costs?

(ii) Was the Tribunal entitled to make findings of obstruction and hindrance either:

(a) as a matter of vires; or

(b) in the manner in which it did?

(iii) To what extent are the appellants precluded from advancing issues by reason of delay?

(iv) Was the learned High Court judge correct to preclude an argument on the constitutionality of s.6 of the Act of

1979, as amended, by reference to the rule in Todd v. Murphy [1999] 2 I.R. 1 and/or the concept of prematurity?

Delay

14. The third of the agreed issues raised before this Court was one of delay. It was queried:-

"(iii) To what extent are the appellants precluded from advancing issues by reason of delay?"

I shall consider this first, taking the totality of the delay issues raised.

15. The High Court held that the appellants were not entitled to challenge the findings of the Second Interim Report by

reason of their delay.

16. The basic facts are that the Second Interim Report was published on the 26th September, 2002, and the Third Interim

Report was embargoed until the 21st January, 2004. On the 20th April, 2004 these proceedings were commenced. Thus

the proceedings were within time for the Third Interim Report, but outside time for the Second Interim Report. The High

Court permitted the appellants proceed with their challenge to the Third Interim Report, but refused to extend time in

relation to the Second. The appellants have appealed this decision.

17. I would allow the appellants' appeal on this issue. Both reports are based on the same body of evidence. In both the

person making allegations was Mr. Gogarty. The challenges to the Second Interim Report are identical in all legal respects

to the challenges to the Third Interim Report. There is no interest of justice which would require that the Third Interim

Report be challenged but not the Second. There is no prejudice suffered to the Tribunal by such a decision, in that it

does not interfere with the work of the Tribunal. The matters raised are of public importance and relevant to future

decisions to be made by the Tribunal. The Tribunal published the Second Interim Report and did not flag the Third. The

Third was delayed because of the then pending trial of Mr. Redmond. In all the circumstances I am satisfied that it would

be an injustice to make a determination on the Third Interim Report and not the Second.

18. Consequently, I would extend time to include the Second Interim Report.

Terms of Reference

19. The terms of reference of the Tribunal are relevant to the issue of costs before the Court. On the 7th October, 1997,

Dáil Éireann resolved that it be expedient that a Tribunal be established to inquire urgently into and report to the Clerk of

the Dáil, and to make such findings and recommendations as it sees fit in relation to the stated definite matters of urgent

public importance. These included: the identification of the lands stated to be 726 acres in extent referred to in the letter

dated the 8th June, 1989, from Mr Michael Bailey to Mr James Gogarty, and the establishment of the beneficial ownership

of the lands at that date and changes in the beneficial ownership of those lands since that date; the planning history of

the lands; whether the lands were subject to a number of matters including re-zoning resolutions, resolutions of material

contravention of the relevant development plans, applications for special tax designations, applications for planning

permission; the identification of all recipients of payments to political parties or members of either House of the Oireachtas

or members of officials of a Dublin local authority or other public official by Mr. Gogarty or Mr. Bailey or a connected

person, and the circumstances and motives relative to any such payment; in the event that the Tribunal in its inquiries is

made aware of any acts associated with the planning process committed on or after the 20th June, 1985, which may in

its opinion amount to corruption, it shall report on such acts; and the Tribunal was requested to make recommendations.

And the tribunal was requested to conduct its inquiries in a manner specified.

At paragraph C of the terms of reference it was stated:-

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

House that-

(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 to 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 co-operate fully and expeditiously with

the Inquiry should, so far as is consistent with the interests of justice, be borne by those individuals."

[Emphasis added]

20. Thus the terms of reference specifically identify a failure to co-operate as a factor relevant to the issue of costs.

Costs incurred by individuals who fail to co-operate fully and expeditiously with the Tribunal, so far as it is consistent with

justice, shall be borne by those individuals.

Credibility of witnesses

21. The credibility of witnesses was at the core of the Tribunal's work and findings. The issue of the credibility of

witnesses is relevant to the matters raised on this appeal. Indeed, the issue of the credibility of witnesses and the

Tribunal's approach to that matter is a significant strand throughout this appeal.

22. For example, specifically relevant to the appellants was the issue before the Tribunal as to whether Mr. Joseph

Murphy Jnr. attended at the meeting at Briargate, Swords, Co. Dublin in June, 1989 when JMSE funds were paid to Mr.

Burke.

23. The Tribunal stated in paragraph 14-90 of the Second Interim Report:

"Mr. Burke, Mr. Joseph Murphy Jnr. and Mr. Michael Bailey gave evidence to the Tribunal that Mr. Murphy Jnr. was

not in attendance at the meeting at Mr. Burke’s home at which Mr. Burke received JMSE’s funds. It was submitted

on behalf of the Murphy interests that if the Tribunal concluded that Mr. Murphy Jnr. was not at such a meeting, it

followed that Mr. Gogarty had told a monstrous lie to the Tribunal, which ought, in turn, convince the Tribunal that

the entire of his story must be discounted. The Tribunal does not accept the proposition that a resolution of this

single issue of fact must necessarily resolve the question as to whether the payment made to Mr. Burke was

made for a corrupt purpose or otherwise, although it accepts that Mr. Gogarty’s credibility as a witness would be

damaged by such a finding."

Thus the credibility of Messrs Murphy and Mr. Gogarty was at the core of the analysis by the Tribunal.

24. The Tribunal considered Mr. Gogarty's evidence that Mr. Murphy Jnr. attended three meetings in Dublin between the

end of May, 1989 and the 15th June, 1989 and Mr. Murphy's evidence that he was working in London on the 8th June,

1989.

25. The Tribunal held at paragraph 14-100:-

"The Tribunal is satisfied that Mr. Murphy Jnr. could have attended a meeting in Dublin on the 8th June 1989

notwithstanding the evidence that he had received telephone calls in London, both that morning and that night. A

meeting could have taken place at JMSE’s premises on the afternoon of the 8th June provided Mr. Murphy Jnr. had

flown from London to Dublin and returned on the same day."

[Emphasis added]

26. From the finding that Mr. Murphy Jnr. could have attended the meeting, the Tribunal "was not convinced by the alibi

evidence offered" that Mr Murphy could not have attended the meeting. It was from this platform that the Chairman made

his ruling on costs. Thus, the issue of the credibility of witnesses impinges on all the matters raised.

The Second of the Agreed Issues – Obstruction and Hindrance

27. I shall consider next the second issue on this appeal, being,:

(ii) Was the Tribunal entitled to make findings of obstruction and hindrance either:

(a) as a matter of vires; or

(b) in the manner in which it did?

Vires

28. The Tribunal is entitled to make findings of non co-operation.

29. The terms of reference explicitly state that where there is a failure to co-operate costs should, so far as is consistent

with the interests of justice, be borne by the individuals. The terms of reference thus give to the Tribunal an express

jurisdiction and power to consider a failure to co-operate with the Tribunal as a factor in the issue of costs.

30. Further, s.6 of the Act of 1979, as inserted by s.3 of the Tribunals of Inquiry (Evidence)(Amendment) Act, 1997,

gives to the Chairperson a statutory power in relation to costs. This includes a specific reference enabling regard to be

had to a failure to co-operate with the Tribunal.

31. However, the findings of the Tribunal were not limited to findings of non co-operation. The Tribunal made specific

reference to the crime of obstruction and hindrance and then proceeded to make findings of obstruction and hindrance.

32. Chapter 17 of the Second Interim Report of the Tribunal of Inquiry is headed "Co-operation with the Tribunal". But, in

paragraph 17-03, it is stated:-

"Any person, duly summoned to do so, who gives evidence to the Tribunal which is material to its inquiry, which

that person wilfully knows to be false or does not believe to be true or who by act or omission obstructs or hinders

a Tribunal in the performance of its functions, commits a criminal offence".

[Emphasis added]

33. However, the Tribunal has no authority to determine that any person has committed such a criminal offence. Any

such determination must be in a court of law.

34. The Tribunal went on, in paragraph 17-04, to state:-

"There is an obligation upon every witness called to the Tribunal to give a truthful account of the matters upon

which they are questioned, and failure to do so can amount to a failure to co-operate with the Tribunal, which can

have serious consequences both as regards costs, and otherwise. In its review of the evidence proffered to the

Tribunal in the modules in which the Tribunal has heard evidence to date, the Tribunal has concluded that the

following persons and corporate entities have hindered, obstructed or not co-operated with the Tribunal to the

extent set out hereunder. The findings made against Mr. Joseph Murphy Snr and Mr. Joseph Murphy Jnr. apply pari

passu to the companies within the Murphy Group to whom legal representation was granted including Joseph

Murphy Structural Engineers Limited, Lajos Holdings Limited, The Grafton Construction Company Limited, Reliable

Construction (Dublin) Limited, Barrett Developments Limited (in Liquidation), Turvey Estates Limited, Finglas

Industrial Developments Limited (in Liquidation), Helmdale Limited (in Liquidation), Gaiety Stage Production Limited,

Gaiety Theatre (Dublin) Limited, Finglas Industrial Estates Limited and Wexburn Limited. The findings made against

Mr. Michael Bailey, Mr. Tom Bailey and Mrs. Caroline Bailey apply equally to Bovale Developments Limited."

[Emphasis added]

35. The Tribunal considered several modules. For example, in relation to Mr. Joseph Murphy Jnr., it stated in paragraph

17-16:-

"The Tribunal is satisfied that Mr. Joseph Murphy Jnr, obstructed and hindered the Tribunal by:

(a) Failing to give a truthful account of the circumstances in which he came to attend a meeting at

the home of Mr. Burke in June 1989, at which he handed to Mr. Burke a sum of not less than £30,000.

(b) Failing to give a truthful account of his dealings with Mr. Michael Bailey with regard to the

participation proposal, in which it was envisaged that Mr. Michael Bailey would receive 50% of the

value of the Murphy’s North Dublin lands in return for procuring planning permission and building bye

law approval in respect thereof.

(c) Giving a false account of the involvement of Mr. James Gogarty in the sale of the Murphy lands and

the role played by him in connection with the payment of JMSE monies to Mr. Burke.

(d) Giving a false account of his dealings with Mr. Michael Bailey subsequent to the publication of the

Sunday Business Post articles.

(e) Falsely constructing an alibi which was untrue."

[Emphasis added]

36. These findings relate to the statements in paragraph 14 – 100 that Mr. Murphy Jnr. "could have" attended the

meetings in Dublin on the 8th June, 1989. While these findings are in a chapter headed "Co-operation with the Tribunal",

they are specific findings that a named person "obstructed and hindered" the Tribunal. Furthermore, they were made after

a reference to the existence of a crime of that nature. The Tribunal may have considered that there was a lack of co-

operation, however, the findings of the report are not expressed in that fashion.

37. The power and authority of the Tribunal is limited to that given to it by the terms of reference and the law, and so

the Tribunal may make findings of a lack of co-operation. There may be degrees of lack of co-operation, from minor to

major. I would not attempt a list of activities or omissions which may be deemed to be a lack of co-operation. However,

the Tribunal did not have jurisdiction to make findings of obstruction and hindrance in the context of a reference to a

criminal offence.

38. While the Tribunal has jurisdiction to determine that there has been a lack of co-operation with the Tribunal it does

not have jurisdiction, under its terms of reference or the statutory law, to determine that in effect criminal offences

occurred.

39. I am satisfied that the Chairman did not have power to make an order in relation to costs in the context and in the

terms in which he did.

The Manner of Making the Findings

40. Although the issue does not arise, in light of my decision on the "vires", I would also state that, in all the

circumstances, the decision of the Tribunal was made in breach of fair procedures. On well established principles of fair

procedures the appellants should have been given notice of an intended ruling on obstruction and hindrance in relation to

the issue of costs and an opportunity to make submissions. No notice was given of the intention to address the issues of

obstruction and hindrance, and so the appellants had no opportunity to make submissions on such matters. Thus the

manner in which the Tribunal made the rulings was in breach of fair procedures.

41. I would allow the appeal on the second issue, and quash the decision of the High Court.

Opinion

42. Those findings are sufficient to determine this appeal. However, there are a number of matters upon which I express

an opinion.

The First of the Agreed Issues – Substantive Findings

43. The first issue before the Court was:-

"(i) Was the Tribunal entitled to take into account its substantive findings of corruption when exercising its

jurisdiction in respect of costs?"

It is not necessary to address this issue but as it was debated in considerable detail by counsel before the Court, and as

it is a matter which will arise presently before the Tribunal, I express an opinion,

44. The Tribunal made substantive findings of corruption. There was no challenge by the appellants to the findings of

corruption by the appellants made by the Tribunal. This was specifically acknowledged by counsel for the appellants in

answer to questions from the Court. Thus the determinations made by the Tribunal as to corruption stand.

45. For example, in the Second Interim Report of the Tribunal, the summary and conclusion on the payment to Mr. Burke

at Briargate, Swords, in the week prior to the 15th June, 1989, was:-

"16-16 The meeting at Mr. Burke’s home at Briargate, Swords, Co. Dublin, in the week prior to the 15th June 1989,

was specifically arranged by Mr. Michael Bailey and Mr. Burke so as to allow for the payment of money to be made

to Mr. Burke. The meeting was not arranged in order to receive a political donation, but was arranged for the

purpose of paying Mr. Burke money to ensure his support, and his influence over others, so as to achieve the

alteration of the planning status of the Murphy company’s North Dublin lands, described as lots 1-6 in Mr. Bailey’s

letter of the 8th June 1989 addressed to Mr. Gogarty.

16-17 The parties present at the meeting were Mr. Burke, Mr. Michael Bailey, Mr. Joseph Murphy Jnr., and Mr.

James Gogarty.

16-18 The Murphy executives present at the meeting believed that the JMSE payment which was passed in a

closed envelope by Mr. Joseph Murphy Jnr. to Mr. Burke was being matched by an equal payment from Mr. Michael

Bailey contained in an envelope which they observed being passed by Mr. Michael Bailey to Mr. Burke.

16-19 The meeting took place with the prior knowledge of Mr. Joseph Murphy Snr., Mr. Frank Reynolds, and Mr.

Roger Copsey, each of whom was aware that it was intended to pay Mr. Burke £80,000 in order to ensure his

support in achieving the intended changes in the planning status of the Murphy’s North Dublin lands, which were at

that time the subject of a participation proposal, which if concluded, would have resulted in Mr. Michael Bailey

receiving a 50% interest in the Murphy’s North Dublin lands.

16-20 Mr. Joseph Murphy Snr. was the ultimate decision maker when it came to either selling the lands or entering

into the participation proposal with Mr. Bailey.

16-21 On a date subsequent to the 3rd July 1989 and prior to the 10th July 1989 Mr. Joseph Murphy Snr. decided

not to enter into the participation proposal envisaged by Mr. Michael Bailey, but to sell the lands outright.

16-22 The role of Mr. James Gogarty was that of a functionary only, and all actions taken by him in connection

with the sale of the lands, the participation proposal, and the attendance at Mr. Burke’s home, were taken by him

at the request of Mr. Joseph Murphy Snr.

16-23 Mr. Burke assured those present at the time of the payment of monies to him that he understood that the

payment was being made in connection with the proposal to alter the planning status of the Murphy lands and

further assured those present that he would honour his commitment to do so.

16-24 The payment received by Mr. Burke amounted to a corrupt payment and all present at the meeting were

aware that it was such."

[Emphasis added]

These paragraphs illustrate findings of corruption by the Tribunal of the appellants, which are not contested.

46. On the 30th June, 2004, the Chairman made a general ruling on the issue of costs. He addressed the issue as to

whether he could or should have regard to the substantive findings of corruption. He considered the terms of s.6 of the

Tribunals of Inquiry (Evidence) Acts 1921 to 2004, and the words of the statute "findings of the Tribunal". He ruled:-

"I am firmly of the view that the word "findings" in the context of the present inquiry means the findings of

corruption, and that I am entitled to have consideration for such findings when exercising my discretion as to

whether or not to award costs to any party to whom representation was granted. In so holding I wish to

emphasise that a finding of corruption does not of itself mean that I must, in the exercise of my discretion, refuse

the costs of a person who has been found to have been corrupt. It is a factor to which I am entitled to have

regard in determining, whether in all the circumstances, it is equitable to make an award of costs, whether in

whole or in part.

In circumstances where, for example, a party has co-operated fully with the Tribunal by providing truthful

information to the Tribunal and is subsequently reported upon by the Tribunal as having been corrupt, such a

finding will not of itself prevent such a person from recovering their costs, whether in whole or in part, if I believe

that in all the circumstances it is equitable that an order for costs should be made.

The Tribunal's task is to ascertain the facts. Anything that would act to remove, or to reduce, the incentive to

parties to assist the Tribunal by cooperating fully with the Tribunal in it's inquiries, would in my opinion be seriously

detrimental to the Tribunal's capacity to do so. Consequently a blanket refusal to award their costs to a party who

has been found to have been corrupt, but who has co-operated with the Tribunal's inquiries by giving a truthful

account of events, would be counterproductive to the purpose of the Tribunal and detrimental to the public good."

47. In a specific ruling on costs on the 9th November, 2004, the Chairman ruled on the appellants' application for costs.

This ruling is set out earlier in the judgment. The Chairman referred to the adverse ruling of obstruction and hindrance

against the appellants and concluded that they were intent to ensure the Tribunal would not find the truth. He ruled that

the conduct of the appellants was unlawful. He said that in spite of the serious findings of corruption on the part of the

appellants he would have awarded them a portion of their costs had they chosen to co-operate with the Tribunal.

However, in the circumstances he did not believe it would be appropriate to award costs to the appellants. Clearly, the

key factor for the Chairman was the adverse findings against the appellants of obstruction and hindrance.

Law on Costs

48. The Tribunals of Inquiry (Evidence) Act, 1921, had no section relating to the issue of costs. The practice was that a

Tribunal could recommend that costs be paid by the Attorney General.

49. The issue of costs did appear in the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979. Section 6 provided:-

"(1) Where a tribunal, or, if the tribunal consists of more than one member, the chairman of the tribunal, is of

opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient

reasons rendering it equitable to do so, the tribunal or the chairman, as the case may be, may by order direct

that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by

a Taxing Master of the High Court, shall be paid to the person by any other person named in the order.

[Emphasis added]

(2) Any sum payable pursuant to an order under this section shall be recoverable as a simple contract debt in any

court of competent jurisdiction.

(3) Any sum payable by the Minister for Finance pursuant to an order under this section shall be paid out of

moneys provided by the Oireachtas."

50. In Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542 at p.605, McCarthy J. construed section 6 as

follows:-

"Section 6: The liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of

the inquiry. When the inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be

represented at the inquiry should have their costs paid out of public funds. The whole or part of those costs may

be disallowed by the Tribunal because of the conduct of or on behalf of that party at, during or in connection with

the inquiry. The expression "the findings of the tribunal" should be read as the findings as to the conduct of the

parties at the tribunal. In all other cases the allowance of costs at public expense lies within the discretion of the

Tribunal, or, where appropriate, its chairman."

51. Finlay C.J. stated, at p.591-592:-

"With regard to the questions of the common law precedents concerning commissions of inquiries in other

common law countries, and with regard to the other questions raised concerning the construction of ss. 4, 5 and

6 of the Act of 1979, I have had the opportunity of reading the judgment which is about to be delivered by

McCarthy J., and I agree with it."

The opinion of Finlay C.J. on this issue is fundamentally connected to the core issue of his analysis – being the nature of

a tribunal – that it is not the administration of justice.

52. Hederman J. also considered section 6, stating at p.601:-

"Reference was also made to s. 6 which gives the Tribunal power to order that the costs of a person appearing

before the Tribunal should be paid by someone else appearing before the Tribunal. It is clear that these

amendments to the Act of 1921 are to give tribunals set up under the relevant legislation further efficacy. For

example, in the past it was regarded as anomalous that the most a tribunal of inquiry could do was to

"recommend" to the Attorney General that certain costs should be paid out of public funds."

The opinions expressed in those judgments related to s.6 of the Act of 1979.

53. A change which has occurred over the last decades is the considerable increase in the costs of tribunals – to all

concerned. The Beef Tribunal was very costly. The Chairman of the Beef Tribunal ordered that, in effect, the State pay

the legal costs of the parties represented at the tribunal.

54. In the Report of the Tribunal of Inquiry into the Beef Processing Industry at p.719 the Chairman stated:-

"The Tribunal has in the course of its introductory chapter in this Report referred to a statement of Lord Justice

Salmon made in the course of the Report of the Royal Commission on Tribunals of Inquiry (1966) that a person

who is involved in an inquiry should normally have his legal expenses met out of public funds and the statement of

the late Mr. Justice McCarthy, concurred with by the Chief Justice, in the case of Goodman International and

Laurence Goodman v. The Tribunal that 'ordinarily, any party permitted to be represented at the inquiry should

have their costs paid out of public funds.'

The Tribunal is satisfied that in the exercise of its discretion to award the whole or part of the costs of any party

appearing before the tribunal, it cannot have regard to any of its findings on matters being inquired into by it but

is only entitled to consider 'conduct of or on behalf of that party at, during or in connection with the inquiry' that

unless such conduct warrants, a party permitted to be represented at the inquiry should have their costs paid out

of public funds."

The words quoted by the Sole Member of the Beef Tribunal appear to refer to the words of McCarthy J. in Goodman

International v. Mr. Justice Hamilton [1992] 2 I.R. 542, quoted previously.

55. Section 6 of the Tribunals of Inquiry (Evidence)(Amendment) Act, 1979, was amended by s.3 of the Tribunals of

Inquiry (Evidence)(Amendment) Act, 1997, referred to hereafter as "the Act of 1997", which substituted a new subsection

(1) as follows:-

"(1)Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of

opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the

resolution passed by each House of the Oireachtas relating to the establishment of the tribunal or failing to co-

operate with or provide assistance to, or knowingly giving false or misleading information to, the tribunal), there

are sufficient reasons rendering it equitable to do so, the tribunal or the chairperson, as the case may be, may,

either of the tribunal's or the chairperson's own motion, as the case may be, or on application by any person

appearing before the tribunal, order that the whole or part of the costs –

(a) of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of

the High Court, shall be paid to the person by any other person named in the order;

(b) incurred by the tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any

other person named in the order."

Subsection (2) provides that the amendment effected by subsection (1) does not apply to costs incurred before the

passing of the Act of 1997.

56. In Haughey v. Mr. Justice Moriarty & ors [1999] 3 I.R. 1, at p.14, Geoghegan J. said, obiter dictum:-

"As the question of costs does not really arise yet, I am reluctant to make any comments on it but as it has

featured so prominently in the arguments I think I should say this. In my opinion, power to award costs under the

Act of 1997 is confined to instances of non co-operation with or obstruction of the Tribunal but that of course

would include the adducing of deliberately false evidence and that is why the statutory provision specifically

requires regard to be had to the findings of the Tribunal as well as all other relevant matters. However, I merely

express that view by way of obiter dicta because, in my opinion, the issue of costs can only properly come before

the High Court by way of some kind of judicial review or injunctive proceedings after costs have been awarded. I

accept that the first plaintiff and perhaps the other plaintiffs may have to incur cost in providing the Tribunal with

the necessary information and without there being any advance guarantee of indemnity, but there is a guarantee

that justice will be done in relation to costs at the end of the Tribunal. It would not be practical or reasonable to

expect an advance promise of indemnity. Any monetary loss incurred on this account is simply an unfortunate

consequence of the legitimate right to hold such an inquiry."

I agree with the analysis that power to award costs under the Act of 1997 is confined to instances of non co-operation

with the Tribunal.

57. The Law Reform Commission in the Consultation Paper on Public Inquiries Including Tribunals of Inquiry [LRC CP 22-

2003] considered the issue of costs at a tribunal, as did the Report on Public Inquiries Including Tribunals of Inquiry [LRC

73-2005]. The Report recommended that the chairperson of an inquiry should be required by amended tribunals legislation

to have regard to the need to avoid any unnecessary costs in making any decisions as to the planning, procedure or

conduct of an inquiry. It recommended that sensible arrangements regarding the division of subject matter and the

sequence in which topics are taken should be followed so as to minimise wasted time and control costs. It recommended

that the sponsoring department, following consultation with the Department of Finance, should set a broad budget figure

at the outset of the tribunal, such estimates to be used for internal control purposes and need not be made public at the

outset of a tribunal. The Commission considered that flexible arrangements should be put in a place in relation to the

engagement and remuneration of lawyers and other personnel involved in tribunals which may involve a fee structure and

a tendering process where either of them are appropriate.

58. The context for the analysis of the law on costs is that a tribunal does not constitute the administration of justice:

Goodman International v. Mr Justice Hamilton [1992] 2 I.R. 542.

59. A tribunal is given its terms of reference by the Houses of the Oireachtas and does not trench upon the judicial

domain. A tribunal does not administer justice.

60. In the seminal case on the nature of the activities of a tribunal, Goodman International v. Mr Justice Hamilton [1992]

2 I.R. 542 at p.589, Finlay C.J. stated:-

"The meaning of the constitutional concept of the "administration of justice" involved in this Article was identified

in the tests set out in the judgment of Kenny J. in the High Court in McDonald v. Bord na gCon [1965] I.R. 217 in a

passage which was later accepted by the decision of the Supreme Court in the judgment of Walsh J. I, like Costello

J. in the course of his judgment in this case, would adopt them as being appropriate tests. The passage is as

follows:-

'It seems to me that the administration of justice has these characteristic features:

1. A dispute or controversy as to the existence of legal rights or a violation of the law;

2. The determination or ascertainment of the rights of parties or the imposition of liabilities or

the infliction of a penalty;

3. The final determination (subject to appeal) of legal rights and liabilities or the imposition of

penalties;

4. The enforcement of those rights or liabilities or the imposition of a penalty by the Court or by

the executive power of the State, which is called in by the Court to enforce its judgment;

5. The making of an order by the Court which as a matter of history is an order characteristic of

Courts in this country.'

I am satisfied that with the possible exception of the first clause in this statement of the characteristics of the

administration of justice, where it speaks of a controversy as to the existence of a violation of the law, the

activities of this Tribunal of Inquiry fulfils none of the other fundamental conditions or characteristics of the

administration of justice as laid down in this case. It can be argued, I suppose, that by reason of the inquisitorial

nature of the Tribunal that it is not accurate to speak of a controversy concerning the violation of the law, but

even if it is, and I would incline to the view that it would come within that category, that fact alone could not

conceivably make the proceedings of this Tribunal an administration of justice within the meaning of Article 34 of

the Constitution.

In a sense, a positive test which can be applied, and very strikingly, is that contained in clause 5 of the principles

laid down by Kenny J. It is no part, and never has been any part of the function of the judiciary in our system of

law, to make a finding of fact, in effect, in vacuo and to report it to the Legislature. The courts do not even

exercise a function of making, in cases between litigants, a finding of fact which does not have an effect on the

determination of a right.

With regard to the suggestion that the findings of the Tribunal, if not an impermissible administration of justice by

a body other than a court, is a usurpation of the activities of courts in cases where either civil cases are pending

or may be instituted, it seems to me that again this submission arises from a total misunderstanding of the

function of the Tribunal. A finding by this Tribunal, either of the truth or the falsity of any particular allegation

which may be the subject matter of existing or potential litigation, forms no part of the material which a court

which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a

litigant who in relation to the same matter is disputing with another party rights arising from some allegation of

breach of contract or illegal contract or malpractice. I am, therefore, satisfied that the submission under Article

34 must fail."

61. This then is the context in which s.6(1) of the Act of 1997 falls to be construed.

62. There are several presumptions relevant to the construction of the section:- (i) the presumption of constitutional

validity applies to s.6(1) of the Act of 1997; (ii) if there are two or more constructions reasonably open of s.6(1) of the

Act of 1997, one construction being constitutional and one unconstitutional, it is presumed that the Oireachtas intended

the constitutional construction; (iii) also, it is presumed that the Oireachtas intended that proceedings, procedures and

discretions permitted by s.6(1) of the Act of 1997, will be conducted in accordance with the principles of constitutional

justice.

63. In applying these principles to the construction of s.6(1) of the Act of 1997, I am of the opinion that the issue for a

chairman is whether a party has co-operated with a tribunal.

64. Ordinarily any party permitted to be represented at a tribunal should have their costs paid out of public funds.

However, this may be lost if the party fails to co-operate with the tribunal. Thus a chairman has to consider the conduct

of, or on behalf of, a party before a tribunal. The power to award costs is affected by a lack of co-operation, by non-co-

operation, with a tribunal. Non co-operation could include failing to provide assistance or knowingly giving false or

misleading information.

Fundamentally the issue is whether a party has co-operated with a tribunal so as to be entitled to his or her costs. A

person found to be corrupt who fell on his sword and fully co-operated with a tribunal would be entitled to assume, unless

there were other relevant factors, that he would obtain his costs. This is to facilitate the running of a tribunal.

65. The distinction between the administration of justice and the authority of a tribunal has to be drawn clearly. A

tribunal is not administering justice, it is a fact finding inquiry, reporting to the legislature. A decision on costs grounded

on a substantive finding of a tribunal would import a liability for a party. I am of the opinion that s.6(1) of the Act of 1997

should be construed in light of the well established case law, and that consequently a chairman may not have regard to

the substantive findings of a tribunal when determining the issue of costs.

Credibility Issue Continues

66. As stated earlier in this judgment, the credibility of witnesses was a key factor before the Tribunal. Consequently, the

right to cross examine was a right of importance to those appearing before the Tribunal. In that context it was a matter

of concern to learn of the new evidence arising before the High Court.

New Evidence, a Cause for Concern

67. New evidence was provided on discovery to the High Court, and to this Court on appeal. The evidence had not been

made available to the appellants at the Tribunal, but had been redacted and ruled to be irrelevant.

68. Evidence was available on discovery in the High Court. It transpires that the Tribunal had chosen to edit the

transcripts of certain interviews with Mr. Gogarty. Deletions in the transcripts were certified by the Sole Member, Mr

Justice Feargus Flood, as being wholly irrelevant. He stated that he had edited from the tapes and the notes such

material as was either irrelevant or otherwise inappropriate for circulation and that he circulated the redacted material to

all interested parties.

69. Having seen this new evidence it is clear that the redacted material contained some very serious allegations made by

Mr. Gogarty against persons other than the appellants. These allegations were deleted from the transcript which was

circulated. This redacted matter would have been material to the cross examination of Mr. Gogarty.

70. There was also a statement made by Mr. James Gogarty on the 5th November, 1997, although it is unsigned, which

was not given to the appellants at the Tribunal. Here also there are serious allegations made against persons other than

the appellants by Mr. Gogarty.

71. The fact that the above material was not available to the appellants at the Tribunal is relevant to findings of the

Tribunal, including those of obstruction and hindrance.

72. The decision to redact was taken prior to the judgment of this Court in O'Callaghan v. Judge Mahon & ors (No.1)

[2006] 2 I.R. 32. However, the issues raised are fundamental.

73. This was described by Geoghegan J. in O'Callaghan v. Judge Mahon & ors (No.1) as:-

"For the purposes of disposing of this appeal … I think it is sufficient to rely only on In re Haughey [1971] I.R. 217

and to state that the tribunal in this case did not comply with the requirements of the Supreme Court laid down in

that case. A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient

execution of its work requires that there be such a policy. A literal application of court procedures will often not be

either necessary, desirable or efficient. A tribunal is also perfectly entitled to conduct separate hearings of

separate modules and to try as far as possible to discipline counsel and the witnesses so that the evidence at any

given time is confined to the evidence relevant to that module.

This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it

may have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have

suggested and which may not be available to a court of law, it is always bound to ensure, as far as possible,

compliance with constitutional rights and obligations and that, of course, includes the vindication of a person’s

good name. For all the reasons put forward by Hardiman J. much more eloquently than I would be able to do, it

was absolutely essential that the documents and materials which were sought for the purpose of carrying out a

worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the

tribunal against Mr. O’Callaghan and of which he had no prior notice, be duly produced. The tribunal relies on an

understanding of confidentiality. It is not suggested, however, that the confidentiality was absolute nor could it

have been. The tribunal could not possibly ensure absolute confidentiality relating to information, which, for

instance, might turn out to be highly relevant to the very matters that it was investigating. Any such

confidentiality must necessarily be limited to information, in the event found not to be necessary to be used at an

oral hearing. If, however, the information becomes absolutely essential for the purposes of a cross-examination

pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can be judicially

reviewed for doing so…

[H]aving regard to the clear views of this court in In re Haughey it would not seem to me to be necessary to

consider to what extent the numerous cases and statutes relating to the law of evidence for the purposes of the

courts must necessarily be applied to every cross-examination in a tribunal.

I am satisfied that in this case the tribunal applied its own policies too rigidly and in the event infringed the Constitution."

74. The editing of material from the documents by the Sole Member of the Tribunal, and the circulation of the redacted

document only, at the Tribunal, prior to discovery in the High Court in this case, is a cause for concern.

The Fourth of the Agreed Issues

75. The fourth issue raised before the Court was:-

"Was the learned High Court judge correct to preclude an argument on the constitutionality of s.6 of the Act of

1979, as amended, by reference to the rule in Todd v. Murphy [1999] 2 I.R. 1, and/or the concept of

prematurity."

In all the circumstances of this case the fourth issue does not arise for consideration.

Prematurity

76. I am satisfied that it was not premature of the appellants to bring this application for judicial review in the

circumstances where there had been a refusal of an award of costs to them and when they were apprehensive that there

may be steps taken to make an award against them.

Conclusion

77. For the reasons given I would allow the appeal on the grounds that the Chairman did not have power to find that the

appellants had obstructed and hindered the Tribunal, in the context of a reference to a crime, which finding led him

inextricably to the determination on costs. I would allow the appeal on this, the second of the agreed issues.

Thus the order which I propose would be to allow the appeal and make a declaration that the Tribunal was not entitled to

make the findings of obstruction and hindrance by the appellants in the Second and Third Interim Reports and certiorari

the decision of the Tribunal of the 9th of November, 2004.

I have expressed an opinion on a number of related matters which were argued at some length before the Court and

which are relevant to the issue of costs.