Supreme Court allows appeal against Tribunal order, awarding costs to Tribunal due to deliberate evidence destruction.

THE SUPREME COURT

No. 354 2007

Murray C.J.

Geoghegan J.

Fennelly J.

Macken J.

Finnegan J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 4 OF THE TRIBUNALS OF INQUIRY (EVIDENCE)

(AMENDMENT) ACT, 1997 AS AMENDED BY SECTION 3 OF THE TRIBUNALS OF INQUIRY (EVIDENCE) (AMENDMENT)

ACT, 2004

BETWEEN

HIS HONOUR JUDGE ALAN P. MAHON,

HER HONOUR JUDGE MARY FAHERTY and

HIS HONOUR JUDGE GERALD B. KEYES,

MEMBERS OF THE TRIBUNAL OF INQUIRY INTO

CERTAIN PLANNING MATTERS AND PAYMENTS

Plaintiffs/Respondents

-and-

COLM KEENA and

GERALDINE KENNEDY

Defendants/Appellants

RULING of the Court delivered by Murray C.J. on the 26th day of November 2009.

The Court, by its unanimous judgment of 31st July 2009, delivered by Fennelly J, allowed the appeal of the appellants

against the order of the High Court made on the 9th November 2007 requiring them to comply with an order of the

Tribunal of Inquiry into Certain Planning Matters and Payments dated 25th September 2006 and to appear before the

Tribunal and answer questions.

The Tribunal was inquiring into the source of a leaked letter, which had been addressed by the Tribunal to a potential

witness in the course of the confidential phase of its inquiry. The contents had been published in the Irish Times as part

of an article written by the first-named appellant. A copy of that letter had been sent to him anonymously. The second-

named appellant is the editor of the Irish Times.

As recorded in the judgment of this Court the first-named appellant informed the Tribunal that he could not produce the

letter. Following receipt of the order of the Tribunal of 25th September 2006 and a meeting with legal advisors, the

second-named appellant, in order to protect journalistic sources, had requested that he destroy any document in his

possession concerning the newspaper story and that he had done so. He agreed with this decision. The second-named

appellant destroyed copies of the documents in her own possession.

This deliberate act of destruction of evidence, for reasons explained in the judgment of this Court, deprived the Tribunal

of the possibility of conducting any meaningful inquiry into the source of the leaked letter. The High Court described this

as "an outstanding and a flagrant disregard of the rule of law." It said that:

"In so doing the defendants cast themselves as the adjudicators of the proper balance to be struck between the

rights and interests of all concerned.”

The High Court added:

"It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to

democratic order. If tolerated it is the surest way to anarchy."

The judgment of this Court said the appellants had “cast themselves as the adjudicators of the proper balance to be

struck between the rights and interests concerned.” It said:

“The unilateral decision of a journalist to destroy evidence with intent to deprive the courts of jurisdiction is, as

the High Court has held, designed to subvert the rule of law. The Courts cannot shirk their duty to penalise

journalists who refuse to answer questions legitimately and lawfully put to them.”

The appellants succeeded in their appeal because the Court held that the High Court had not correctly struck the balance

between the journalistic privilege derived from the exercise of the right to freedom of expression of the appellants and the

public interest of the Tribunal in tracing the source of the leak.

The appellants, having succeeded in their appeal seek the costs of the appeal and of the hearing in the High Court.

Counsel relies on Order 99 of the Rules of the Superior Courts, particularly the principle that costs should “unless

otherwise ordered, follow the event.” (Order 99, rule 1(3)). Counsel for the Tribunal counters by also asking for costs in

both courts. He relies especially on the acts of the appellants in destroying the document which was or would have been

crucial to the Tribunal’s inquiry.

This Court (per Fennelly J) dealt with the matter as follows:

“I do not disagree with the language used by the High Court in reference to the deliberate destruction by the

appellants of the very documents that were at the core of the enquiry. Nonetheless, I have to accept that the

issue is not whether that act was a wrongful one and deserving of the opprobrium applied to it by the High Court,

but the narrower question of whether, in circumstances where the documents no longer exist, there is a logical or

causal link between that act and the order made.”

Thus, it was the very act of destroying the document that decisively shifted the balance and deprived the Tribunal of any

effective power to conduct an inquiry and, by extension, deprived the courts of any power to give effect to any order of

the Tribunal. This act was calculated and deliberate and was performed with that clear purpose in mind. That

“reprehensible conduct” determined the course which these proceedings took and was at the root of balancing the issue

which the Court had to determine.

In the view of the Court the deliberate behaviour of the appellants was directly related to and was intended to achieve

the outcome of the case, which has in fact occurred.

As explained in Dunne v Minister for the Environment [2008] I.R. 775 at 780, (per Murray C.J.), there “has been no fixed

rule or principle determining the ambit of [the exercise of the court’s] discretion and, in particular, no overriding principle

which determines that it must be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a

particular class of case.” More generally, it is not in doubt that the Court has jurisdiction, to be exercised in exceptional

cases, to order a successful party to pay the costs of the unsuccessful party.

The behaviour of the appellants was such as to deprive them of their normal expectation that the Court would, in the

exercise of its discretion, award costs in their favour in accordance with Order 99. The Tribunal was, on the other hand,

fully entitled to conduct its inquiry and to seek the assistance of the High Court. The Court will, in these exceptional

circumstances, order that the respondents are entitled to recover the costs of both the High Court and this Court from

the appellants.