Supreme Court allows appeal against High Court dismissal of judicial review regarding Tribunal inquiry procedures and delay.

THE SUPREME COURT

Macken, J.

Finnegan, J.

O’Donnell, J.

[S.C. No. 258 of 2006]

BETWEEN

JOHN CALDWELL

APPLICANT/APPELLANT

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY AND JUDGE GERALD KEYS, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO

CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS/RESPONDENTS

Judgment of Macken J. delivered on the 9th day of June, 2011

This is an appeal from the judgment of the High Court (Hanna, J.) delivered on the 28th day of June, 2005. The respondents to the

appeal comprise, as to the first named, the Chairman, and as to the remaining persons, the other members of the Tribunal of Inquiry

into Certain Planning Matters and Payments (“the Tribunal”) commonly known for some years (since it was originally established in

November, 1997 under the Chairmanship of Flood, J.) as “the Mahon Tribunal”. The appellant is a former practising solicitor and former

managing partner of a firm of solicitors in Dublin. At the time relevant to the events the subject of this appeal the appellant had an

interest in or a connection with certain lands at Carrickmines in County Dublin, which, inter alia, were the subject of what was called

the Carrickmines Module of part of the work of the Tribunal.

On the 13th December, 2004 by order of the High Court (McKechnie, J.), the appellant was granted leave to apply for judicial review

of a decision of the respondents to embark on, or continue, certain public hearings. The reliefs in respect of which leave was granted

included:

(i) a declaration that the respondents decision to embark on the above public hearings without giving the appellant

an opportunity to make submissions thereon, acted unlawfully and in breach of the requirements of natural and

constitutional justice;

(ii) in the alternative, an order of mandamus directing the respondents to hear such submissions prior to holding

any, or any further, public hearings;

(iii) a declaration that the respondents, in deciding to hold such public hearings, acted and/or was acting ultra vires

and/or without or in excess of jurisdiction;

(iv) a declaration that the respondents, in deciding to hold such public hearings had acted, or was acting,

irrationally and without or in excess of jurisdiction; and

(v) the costs of the proceedings,

all of which reliefs are set out in the High Court Order made on that date.

The grounds upon which the order was sought were, briefly, the following: the respondent (a) in refusing to hear submissions on

behalf of the applicant as to whether it should, or should not, exercise its discretion to hold, or not to hold, public hearings, acted in

breach of the audi alteram partem rule, and of the requirements of fair procedures and natural and constitutional justice; (b) was

acting ultra vires in deciding to hold such public hearings, because it was neither mandated nor empowered to inquire into, or

establish, the beneficial ownership of the lands in question; (c) even if it had such power so to do, it was not necessary to conduct

the same unless and until it had been concluded that corruption occurred in relation to those lands and that such corruption benefited

the lands, which was not the case; (d) in deciding to hold such hearings, had acted irrationally because there was no rational basis

on which it could be concluded that hearings into the phases in question would be other than of no, or very limited, probative value;

(e) in deciding to hold such public hearings had failed to take into account relevant considerations and had thus acted without and/or

in excess of jurisdiction, in particular in failing to consider (i) the likely duration and cost of such hearings; (ii) whether such hearings

were likely to provide evidence which would enable the respondent to make findings of fact or recommendations, and to draw

conclusions; and (iii) whether there were other factors which would, or would likely, render such hearings inappropriate, unnecessary,

wasteful of resources, unduly costly, unduly prolonged or which would be of limited or no probative value.

The above reliefs all relate to a decision by the respondents made on the 27th November, 2004 to embark upon, or to continue, public

hearings into Phases 2 to 8 (inclusive) of the Carrickmines II and Related Issues Module (“the Carrickmines II Module”), without

hearing submissions on behalf of the appellant, and to a second decision made to similar effect, in early December, 2004.

The High Court proceedings were subsequently determined after a hearing which lasted five days. By a judgment delivered on the

28th June, 2005, the High Court dismissed the appellant’s claims in their entirety. Consequential upon that judgment, and upon a

supplemental judgment delivered on the 15th February 2006, dealing with an issue of privacy and the retrospectivity or otherwise of

provisions of the European Convention on Human Rights Act 2003, an order of the High Court was made on the 5th April, 2006, by

which order all the reliefs sought by the appellant were refused and he was directed to pay the costs of the proceedings. Notice of

Appeal, dated the 29th June, 2006, from the above two judgments and the order of the High Court, was filed on behalf of the

appellant, on the grounds therein set out, seeking to have the same set aside.

The Scope of the Appeal

The matter now comes before this Court in unusual, but not unknown, circumstances. It is accepted by both parties that the subject

matter of the appeal itself is now moot, by virtue of the passage of time, and the fact that events have overtaken the appeal. The

Tribunal has already concluded its oral hearings of the relevant parts of the Carrickmines II Module. Because, however, the appellant

also seeks to set aside the order for costs made against him, it is necessary to consider the main issues raised in the appeal, so as to

determine if the findings of the learned High Court judge were correct, and whether the costs order was properly made, or ought be

set aside. On the written as well as the oral submissions, there are three primary issues which arise on the appeal. They may be

described in the following terms, as derived from the pleadings and the Notice of Appeal:

(1) The natural justice issue

“A declaration that the respondent, in deciding to embark upon public hearings in relation to Phases 2 to 8, inclusive, of

the Carrickmines II and Related Issues Module without giving the applicant/appellant the opportunity to make submissions

as to whether the respondent should hold such public hearings, acted unlawfully and in breach of the requirements of

natural and constitutional justice.”

(2) The ultra vires issue

“A declaration that the respondent, in deciding to hold or to continue public hearings into Phases 2 to 8, inclusive, of the

Carrickmines II and Related Issues Module has acted and/or is acting ultra vires and/or without or in excess of

jurisdiction.”

(3) The delay issue

This issue arises from the respondent’s Notice of Objection which raised a timing issue in the following terms:

“… the applicant’s case must fail on grounds of delay for failure to comply with the provisions of Order 84 of the Rules of

the Superior Courts”.

The General Context giving rise to the Dispute

Before considering the issues, it is necessary to set out the factual context in which they arose. The original Terms of Reference,

when the Tribunal was first established pursuant to resolution of the Oireachtas and a Ministerial Order in late 1997, were relatively

narrow, and confined to examining, inter alia, the beneficial ownership of various lands in North Dublin, referred to in a letter from a

Mr. Michael Bailey to a Mr. James Gogarty, their planning history, relationships between the owners of the various lands and the

Planning Authority, and/or members of the Oireachtas, and the possible existence of corruption. The Terms of Reference were

amended in 1998 to include another named party, a Mr. Raymond Burke, and again subsequently in 2002. The second and third interim

reports of the Tribunal are dated the 30th September, 2002. The fourth interim report, relevant to this appeal, was submitted to the

Dail in Spring 2004.

As far back as 2002 or 2003, the Tribunal had identified what became known as the proposed Carrickmines II Module as being among

the matters it proposed to investigate. That particular module was said by the Tribunal to have eight proposed phases, mentioned

below, each consisting of separate land banks. The purpose of each proposed module was to identify the beneficial ownership of the

lands in question, at least of the various land banks making up the different phases, and, in particular, so far as this appeal is

concerned, the beneficial ownership of Jackson Way lands. The adoption of these Phases was not based on any allegation of

corruption having been made in relation to any of them, or their owners, or indeed any other persons, unlike the position in relation to

Carrickmines lands. Rather, it was because the Tribunal considered that the answer to the question as to the beneficial ownership of

those land banks might reasonably be expected to throw some light on the true ownership of the Carrickmines lands. At the relevant

time, the Tribunal had already investigated possible corruption in respect of what was called, at that point in time, “Carrickmines

lands”, but had made no findings of corruption or otherwise in relation to them. One major issue it was considering was the true

ownership of certain lands known as the “Jackson Way” lands.

The Jackson Way lands, whose beneficial ownership was of interest to the Tribunal, was, or is still, registered in the name of a

company, of which the appellant allegedly is, or was, a 50% owner. The Tribunal did not know whether a Mr. Liam Lawlor (now

deceased) was or was not one of, or even the only, beneficial owner of those lands, or whether those lands were owned only by the

appellant and/or another man called Kennedy, as was contended. Details of these matters are more fully set out in the High Court

judgment.

In the fourth interim report the Tribunal at Chapter 6, paragraphs 6.02 to 6.08, drew particular attention to the need for far greater

leeway or discretion in determining what enquires the Tribunal could or should proceed with, what it could abandon, or not commence

at all, and pointed out that its obligation to investigate “all such matters” as required by the then Terms of Reference, placed a very

onerous and unnecessary burden on the Tribunal. A discretion to deal with these various matters was sought by the Tribunal in

proposed terms. The Tribunal had been required to produce a definitive list of all the areas it was working on and to choose from that

list (including a specific reference to Carrickmines and other areas) on the criteria set out at J6, which ones would go to public

hearing.

A key event, therefore, in this general context was the decision by the Oireachtas, in late 2004, to amend the Terms of Reference of

the Tribunal, subsequent to its receipt of the Tribunal’s Fourth Interim Report in Spring 2004. The Minister for the Environment and

Local Government, in consequence of that decision, made an Order on the 3rd December, 2004 which added a new paragraph J or

J(6) to the Tribunal’s existing Terms of Reference. That amendment gave the Tribunal, inter alia, a new or greater discretion, inter

alia, to discontinue or abandon its inquiries, even if these came within its existing, very broad, Terms of Reference.

The Terms of Reference, as subsequently amended, and as extant when the application for judicial review was made, include the

following:

“J 1. The tribunal shall, subject to the exercise of its discretion pursuant to j(6) hereunder, proceed as it sees fit to

conclude its inquiries into the matters specified below, and identified in the fourth interim report of this tribunal, and set

out its findings on each of these matters in an interim report or reports or in a final report:

(a) the Carrickmines I Module;

(b) the Fox and Mahony Module;

(c) the St. Gerard’s Bray Module;

(d) the Carrickmines II Module and Related Issues;

(e) the Arlington-Quarryvale I Module;

(f) the Quarryvale II Module;

(g) those modules that are interlinked with the modules set out at paragraphs (a) to (f), and that are referred to in

paragraph 3.04 of the fourth interim report of the tribunal.”

This last reference is a reference to the Tribunal’s intention, on the completion of (f) above, to resume hearings on a number of

“interlinked modules” in the above remaining phases 2 to 8.

Paragraph J(6) of the amended Terms of Reference provides as follows:

“1. The Tribunal may in its sole discretion - in respect of any matter within paragraphs J(1), J(2) and J(3) of these

amended Terms of Reference - decide: …” (emphasis added)

…

(i) to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under

the Acts, to determine whether sufficient evidence exists in relation to the matters to warrant proceeding to a

public hearing if deemed necessary, or

(ii) not to initiate a preliminary investigation and/or a public hearing of evidence in relation to the matter

notwithstanding that the matter falls within the tribunal’s terms of reference, or

(iii) having initiated a preliminary investigation in private, and whether same has been concluded, but prior to the

commencement of any public hearing of evidence in the matter, to discontinue or otherwise terminate its

investigation notwithstanding that the matter falls within the tribunal’s terms of reference.

2. In exercising its discretion pursuant to this paragraph the Tribunal may have regard to one or more of the factors

referred to below:

(i) the age and/or state of health of one or more persons who are likely to be in a position to provide useful

information ...

(ii) the likely duration of the preliminary investigation or public hearing into any matter;

(iii) the likely cost (or other use of the resources of the Tribunal) of such investigation or any stage of the

investigation into any matter;

(iv) whether or not the investigation into the matter is likely to provide evidence to the Tribunal which would enable

it to make findings of fact and conclusions and/or to make recommendations;

(v) any other factors which in the opinion of the Tribunal would, or would be likely to, render an investigation, or

the continued investigation into any matter inappropriate, unnecessary, wasteful of resources, unduly costly,

unduly prolonged or which would be of limited or no probative value.

3 (i) Where the Tribunal believes that the continued conduct of its inquiries is of limited or no further value in discharging

its mandate to inquire into the specific and general matters referred to in its Terms of Reference, it may so report to the

Clerk of the Dail and request him to convey to the Oireachtas the wish of the Tribunal that its investigations and inquiries

should terminate on a date to be specified by the Tribunal.

(ii) In the event that the Oireachtas accedes to a request made of it by the Tribunal to terminate its investigations and

inquiries as of a specified date, the Tribunal will thereafter cease all further inquiries and will thereafter furnish to the

Oireachtas its final report and recommendations after which the Tribunal’s functions will be limited to the making of

ancillary orders including matters relating to costs”.

The amendment to the Terms of Reference also directed the Tribunal to conclude its inquiries into named matters, including the

Carrickmines II Module, subject to its discretion under J(6) above, by March, 2007.

The Background to the Decision of the 27th November, 2004

On the 20th January, 2004, following notification to relevant parties in November, 2003, public hearings of the Carrickmines II Module

started. This commenced in the usual way with an opening statement by counsel on behalf of the Tribunal. Counsel for the appellant

immediately sought clarification, on the following day, as to the scope and intent of this Module. In reply counsel for the Tribunal

indicated, inter alia, that the inquiry was directed towards “examination of the system” used in other lands with regard to the parties

involved, and of devices, entities, business modules or structures used in those transactions, with a view to enquiring if they

established a relationship between the appellant, Mr. Lawlor and Mr. Kennedy, thereby assisting the Tribunal in its consideration of

the true ownership of the Jackson Way lands. The focus of the inquiry was to be directed towards their possible relevance to the

Carrickmines I Module, and the true ownership or control of those lands, by the persons who had been named in connection with

them. At that point, counsel for the appellant expressly reserved the appellant’s position in relation to the intent of the Tribunal, and

the scope of same, as then expressed by its counsel, and did not resile from the position.

The Tribunal then proceeded to hear evidence from some witnesses in the Carrickmines II Module, which continued up until the 13th

February, 2004, at which point the matter was adjourned to the 23rd July, 2004, due to unrelated matters. Considerable

correspondence then took place between the appellant’s solicitor and the solicitor for the Tribunal. The relevant content of that is set

out in appropriate detail in the High Court judgment. The exchanges included a debate on whether or not, inter alia, the Tribunal had

any power at all to investigate non-Carrickmines I lands, in respect of which the appellant’s solicitor sought an opportunity to make

oral submissions to the Tribunal. On the 18th November, 2004 a letter from the Tribunal invited written submissions from the

appellant’s solicitors with a view to considering “whether or not further oral submissions would be permitted”. This was responded to

on behalf of the appellant on the 25th November, 2004.

At the hearing on the 27th November, 2004, before the above formal order was made by the Minister in December, 2004, but after

the Resolution of the Oireachtas, counsel for the appellant sought to address the Tribunal on the exercise by it of its discretion under

the proposed extended Terms of Reference. The essential content of the Resolution did not come as any surprise, since the problems

created by the existing Terms of Reference, and, more particularly, the absence of any clear discretion concerning the

commencement, pursuit, termination or conclusion of enquiries, had been the subject of the above Fourth Interim Report, in which the

Tribunal had itself requested an amendment to its Terms of Reference, so as to grant a broader discretion to it.

The thrust of the submissions which counsel wished to make had been set out in the above letter of the 25th November, 2004. Those

submissions advanced a number of arguments about the interpretation of the original Terms of Reference on the issue of vires, and

also addressed the specific issue of the benefits of any further investigation of the proposed Carrickmines II module, having regard,

inter alia, to the time constraints upon the Tribunal, the issues involved, the likely effect and outcome of matters referred to in the

amended Terms of Reference, and the likely oppressive effect of this on the appellant, all coming within the range of factors or

criteria which could be taken into account by the Tribunal in exercising its discretion under the amended Terms of Reference.

At the outset of the hearing, on the 27th November, 2004, the Chairman of the Tribunal stated that the Tribunal would not entertain

any submissions sought to be made as to how the Tribunal should exercise its discretion. In the course of this appeal, the written

submissions on behalf of the Tribunal state that “a decision was made not to entertain any submissions”. That decision was clearly a

considered one. The decision, as delivered, was in the following terms:

“Good morning. We have made a decision, the tribunal made a decision to allow you make such oral submissions based on

your written submissions as you wish to make, but with this condition.

The tribunal is not prepared to hear any submission as to how the tribunal should exercise its discretionary powers

provided for in the new Terms of Reference. How that discretion is exercised is solely a matter for the tribunal because

the tribunal alone has access to the information, [and] documentation which allows it to exercise that discretion. It is not

a matter on which the tribunal intends taking submissions or hearing submissions from any party. It is a discretion which

only the tribunal can exercise in its own wisdom, and we are quite firm that that is the position and should be the

decision.” (emphasis added)

The Chairman concluded this portion of the Tribunal’s ruling by stating:

“So it is for that reason that only we can exercise that discretion and we must do it based on our own wisdom.”

(emphasis added)

Counsel for the appellant objected, contending that a party was “at an absolute minimum entitled, as a matter of fair procedures of

administrative law, to be heard, simply to be heard in relation to that matter”. He said that his client:

“wished to put before the tribunal, so that it may be taken into account, and properly taken into account, in the overall

exercise of its discretion, a number of relevant matters.”

The chairman then amplified the Tribunal’s position by suggesting that there “had always been a discretion” on the part of the

Tribunal, but that “there was never an entitlement, in our view, for any party to make submissions to the tribunal as to why their

particular interests should not be [sic] undergo public investigation”. Counsel for the appellant replied that the Tribunal appeared to

have “reduced the role of counsel, allegedly representing the role of an affected party, to nothing, which seemed to make

representation a meaningless event”.

The Chairman then stated:

“There are possibly tens, possibly hundreds of potential parties, not just involved in the immediate public inquiry, who, if

the tribunal was of a mind to hear submissions as to why particular avenues of inquiry should be pursued or closed, there

are possibly hundreds of individuals who would be equally entitled to come to the Tribunal to make submissions as to why

their particular inquiry should not be pursued. So we would have a situation where we would spend weeks and weeks just

listening to submissions as to why a particular individual should not have to face an inquiry”.

A fresh attempt to make submissions was made on behalf of the appellant on the 8th December, 2004, but this also came to nought.

It is against the foregoing background that the appellant, on the 13th December, 2004, obtained leave of the High Court to

commence these judicial review proceedings.

The High Court Proceedings

The essential content of the High Court claims are set out above, as well as the grounds on which leave was granted. In his

judgment, the learned High Court judge referred to the application in the following terms:

“This application arises from the Tribunal’s investigations conducted in private, public hearings and future proposed public

hearings of and concerning, certain lands at Carrickmines, County Dublin, and other lands. The Tribunal has engaged in

the practice of dividing its inquiries into separate modules and, within those modules, separate sections or phases. The

module with which we are concerned is referred to and known as the Carrickmines II and Related Issues Module.”

A helpful note of what the learned judge considered the issues before the High Court to be is also set out in the judgment of Hanna,

J., and is worth repeating:

“The applicant contends that the respondents have acted ultra vires, in breach of the requirements of natural and

constitutional justice, and are in breach of the applicant's constitutional right to privacy and the right to respect for his

privacy under Article 8 of the European Convention on Human Rights in that:

• Phases 2-8 of the Carrickmines II Module are outside the terms of reference of the Tribunal.

• The holding of public hearings into phases 2-8 of the Carrickmines II Modules constitutes an unjustified,

unnecessary and disproportionate invasion of the applicant's right to privacy under Article 40.3 of the Constitution

and Article 8 of the European Convention on Human Rights.

• The Tribunal erred in holding that it did not have a discretion under the amended terms of reference not to

proceed with the inquiry into phases 2-8 of the Carrickmines II Modules and/or in not considering whether to

exercise that discretion.

• The Tribunal acted in breach of natural and constitutional justice in refusing to hear submissions from counsel for

the applicant as to whether it should proceed with phases 2-8 of the Carrickmines II Modules.

The respondents dispute all of the foregoing.

• They assert they were acting intra vires.

• The applicant does not enjoy a right to privacy as far as his business and professional affairs are concerned either

under the Constitution or the European Convention on Human Rights.

• If he did enjoy such a right then any interference with that right by the State is both proportionate and

appropriate.

• The Tribunal had the discretion to proceed to public hearing in The Carrickmines II and Related Issues Module, and

so notified the respondents on the 3rd November, 2003.

• The applicant has no right to challenge or question the work of the Tribunal during its private investigative phase

nor was the Tribunal obliged to hear submissions of counsel in relation to same.

• The respondents say that Mr. Finlay was afforded every courtesy with regard to making oral submissions but that

he could not question or challenge any matter leading to and including the decision to move into public hearing

phase.

• Finally, the applicant's case must fail on grounds of delay for failure to comply with the provisions of Order 84 of

the Rules of the Superior Courts.”

In the High Court, it was contended on behalf of the appellant first, that the Tribunal had misdirected itself in law and/or had acted

ultra vires in deciding that it did not have a discretion, under its amended Terms of Reference, to decide whether to continue or

terminate its enquiries into the relevant phase of the Carrickmines II Module and/or in failing to consider whether to exercise that

discretion. Secondly, the appellant argued that a correct reading of the amended Terms of Reference makes it clear that it was open

to the Tribunal, in its discretion, to terminate any or all of the Carrickmines II Module by declining to hear Phases 2 to 8 thereof in

public, or some or other of them. Thirdly, the Tribunal itself had, in its Fourth Interim Report, indicated that it considered the existing

Terms of Reference did not afford it a discretion as to which particular “acts” it was required to investigate and report upon. The

Tribunal had itself requested that the Terms of Reference be amended so as to confer on it an express or actual discretion, inter alia,

(i) to decide which acts it could investigate, and (ii) to permit it not to pursue a particular line of inquiry or investigation, if the

Tribunal thought it appropriate not to do so. Accordingly, the appellant argued that his contentions as to the existence of the

discretion, as well as its scope, were fully justified. On his behalf, it was, finally, argued that the Tribunal was, in the context of the

amended Terms of Reference, obliged to hear submissions in relation to the exercise of that discretion, if a party affected by the

decision wished to make submissions. In particular, the appellant was entitled to bring to the attention of the Tribunal, inter alia,

matters concerning him which should properly form part of the Tribunal’s consideration in determining the manner in which it should

exercise its discretion, and the appellant had sought to do so, but had been wrongly refused a hearing.

As to the claimed right to be heard, the Tribunal submitted that, in declining to entertain submissions from the appellant’s counsel,

the Tribunal did not infringe any natural or constitutional justice right, because, pursuant to the applicable legal principles, as

established in case law, and as applied to a Tribunal of Inquiry, a person who will be called as a witness has no entitlement to make

any submissions to the Tribunal concerning the exercise by it of its sole discretion in the investigatory stage. The Tribunal is not

obliged to entertain submissions from any party or potential witness as to whether it will initiate an investigation, decide that certain

matters warrant a public hearing of evidence, or discontinue or otherwise terminate an investigation, as such matters lie within its

sole discretion at that stage.

On the issue of vires, it was argued that the current enquiries fall outside the Terms of Reference. The terms relating to an enquiry

into the beneficial ownership of any land was confined to those in North Dublin, as included in the original Terms of Reference, and the

extant Term of Reference do not mandate or require such an enquiry into any other lands. Further, even on the Tribunal’s own

argument, such an enquiry could not be necessary unless and until the Tribunal has concluded that corruption had occurred in relation

to them, which had not been determined, and it was an irrational decision. The Tribunal, on the other hand, argued that it was fully

entitled to embark on the enquiries, and they fell within the proper scope of paragraph A.5 of the original Terms of Reference. In any

event, the matter had been put beyond question by the amended Terms of Reference, and the appellant could not, therefore,

succeed on this ground.

Finally, as to the claim by the Tribunal that the appellant had delayed in bringing proceedings, and was outside the time for doing so

under the Rules of the Superior Courts., the appellant argued that time ran from the months of November or December, 2004, when

the amended Terms of Reference became known, whereas the Tribunal contended for a time running from November/ December, 2003

when it notified the appellant of its intention to proceed to public hearings on the Carrickmines II Module.

The High Court Judgment

Having heard the application over a number of days, the learned High Court judge stated that, as to the general onus which rests on

an applicant for judicial review of a decision of a tribunal of this nature, a party “has a great mountain to climb. It is by no means

unassailable, but it seems that one would need to stare irrationality in the face before it could be surmounted”. This finding was made

in purported reliance on the case of Bailey & Others v. Flood (Unreported, High Court, 6th March, 2000), in which Morris, P. cited

Finlay, CJ., in The State (O’Keeffe) v. An Bord Pleanala [1993] 1 I.R. 33.

On the issue of fair procedures and the right to be heard, having cited certain jurisprudence, he found as follows:

“In Haughey v. Moriarty, supra., in relation to a proposed discovery order in respect of a persons bank account, Hamilton

C.J. said at p. 75 of his judgment:-

‘Fair procedures require that before making such orders, particularly orders of the nature of the orders made in this

case, the person or persons likely to be affected thereby should be given notice by the Tribunal of its intention to

make such order and should have been afforded the opportunity prior to the making of such order, of making

representations with regard thereto.’

“That, in my view, seems to indicate the limits on any person making submissions to a Tribunal while it is engaged in its

private investigative phase as to how the Tribunal should conduct its inquiries in such phase or how and when it should

exercise its decision to move to a public hearing. Fundamentally, it seems to me that this is what the applicant is seeking

to do. The applicant is endeavouring to address the Tribunal on whether or not it should move from its private

investigations into public hearings. This he does notwithstanding the fact that he has already engaged in phase 1 of the

Carrickmines II Module. But even if we were dealing with this matter at a time before the commencement of Phase 1 of

Carrickmines II, it seems to me the position in law would be the same. The applicant is seeking to address the Tribunal as

to how it should exercise its discretion in the preliminary investigative stage.”

On the question of vires, he found, first, that the test to be applied was one of irrationality, secondly, that the terms of Clause 5A of

the Terms of Reference empowered the Tribunal to inquire into certain “acts” and that this was clear from Redmond v. Flood [1999] 3

I.R. 79, which confirmed the Tribunal’s “wide latitude in the interpretation of its terms of reference”; thirdly, that in light of the latter

finding, the respondent was not acting ultra vires; and, finally, the amended Terms of Reference expressly require the Tribunal to

proceed “as it sees fit” to conclude its enquiries, inter alia, into the Carrickmines II Module. However, he found that, even without

such amendment, the decision by the Tribunal was within its powers, and Phases 2 to 8 were “legitimate subjects” of inquiry within its

then existing Terms of Reference.

Finally, as to delay, the learned High Court judge found the relevant date was either November, 2003 or February, 2004, or possibly at

the latest July, 2004 when the views of the Tribunal on the substantive issues were clear. The application for judicial review was

therefore outside the time prescribed by the Rules.

The Appeal

In light of the foregoing, the Court now deals with the above three issues.

The Natural Justice Issue

By far the most important ground raised by the appellant, in both the High Court proceedings, and on this appeal, as accepted also by

counsel for the Tribunal, is the allegation that there was a breach of natural and constitutional justice on the part of the Tribunal in

relation to the exercise of the discretion undoubtedly vesting in it pursuant to its amended Terms of Reference. In essence, the

appellant contended before the High Court, and now repeats in this Court, that it is a breach of natural and constitutional justice to

refuse outright to hear any submissions of counsel (or otherwise), on behalf of an affected party, as to whether the Tribunal should

exercise its discretion, or not, to proceed with Phases 2 to 8 of the Carrickmines II Module. Senior counsel for the appellant, Mr.

Gardiner relies in that regard on several cases, including In Re. Haughey [1971] I.R. 217, Haughey v. Moriarty [1999] 3 I.R. 1,

O’Callaghan v. McMahon [2005] IESC 9, Lawlor v. Flood [1999] 3 I.R. 107 and others. It is submitted that on two occasions the

Tribunal refused, wrongly, and in breach of the appellant’s constitutional right to fair procedures, to hear any submissions whatsoever

as to why it should not proceed, as it intended, with public hearings in respect of Phases 2 to 8 of the Module in question. Further,

the Tribunal had wrongly done so on the apparent basis, first, that the discretion was a matter solely for the Tribunal, because it

alone, as opposed to the appellant, or any other party, had access to the information and documentation in question, and secondly,

that if it permitted counsel on behalf of the appellant to make submissions, it would be necessary to allow others, perhaps even a

very large number of people, to do so. Counsel for the appellant submits that neither is a good reason, in law, and that neither

provides a justification for refusing to entertain any submissions whatsoever.

Counsel further contends that the Tribunal accepted, very belatedly, it is said, and only shortly prior to the High Court proceedings,

and contrary to its stance up to that time, that the amended Terms of Reference did indeed confer on it the discretion which the

appellant contended for. As a consequence, the Tribunal also had a discretion which could be exercised so as to terminate its

inquiries, or not proceed further with them, even after the end of the private segment of its work. The appellant was refused an

opportunity to make submissions directed precisely towards the exercise of that discretion. The appellant submits, that at the time of

the refusal in November and December, 2004, the Tribunal apparently considered no useful purpose could or would be served by

hearing any submission, because regardless of what submissions might be made, the Tribunal was, contrariwise, required to proceed

to hear and conclude the entirety of all of Phases 2 to 8 of the Carrickmines II Module. That view of the nature of its discretion was

subsequently accepted by the Tribunal, it is said, as being wrong. Indeed, the appellant contends that, had his counsel been

permitted to make submissions, his position concerning the discretion vesting in the Tribunal being correct, would have been

disclosed, and the Tribunal could have reconsidered its then contrary, and erroneous, stance.

The appellant argues that the decision to proceed with the public hearings in relation to the relevant phase of the Carrickmines II

Module had, or was likely to have, as its consequence, inter alia, serious adverse implications for the appellant, including those as to

time, cost and utility, upon which the appellant wished to make submissions. That being so, it is submitted in this appeal that the

learned trial judge was incorrect in finding that there had not been a breach of fair procedures, and that no unfairness had resulted

from the refusal of the Tribunal to hear submissions, the learned trial judge finding, in that regard, that the Tribunal was correct in

constraining counsel’s address to it in the manner in which it did, on the following rationale:

“The Tribunal has its own way of doing things and is entitled to order its own procedures subject, of course, to the legal

and constitutional rights of persons before it in public phase. It entertains both oral and written submissions as it had

done in the instant case. The Tribunal had indicated that area of debate to which it did not intend to go and it was within

its rights so to do. Certainly, no discrete ground of unfairness was visited upon the applicant by the refusal on the part of

the Tribunal to revisit legal argument which it, rightly in my view, considered to be over and done with.”

It is submitted by counsel for the appellant that this part of the High Court judgment fails to set out any legal basis as to why the

Tribunal was entitled to refuse to afford the appellant his legal right to fair procedures by permitting his counsel to make submissions

in relation to the very matter which would have a serious adverse impact on him.

On behalf of the Tribunal on this ground, senior counsel, Mr. Michael Collins argues that the learned trial judge was correct in law, and

that there was, in fact, and in law, no entitlement on the part of the appellant to be heard. The Tribunal did not infringe any natural

or constitutional justice rights. The following had been stated in its written submissions to the High Court – relied on also in this

appeal - on this aspect of the matter:

“… the Tribunal did not infringe any natural or constitutional justice right of the applicant because the principles of natural

or constitutional justice as applied to a Tribunal of Inquiry set up under the Tribunals of Inquiry (Evidence) Acts, 1921 –

2004 do not require that a person who will be called as a witness (if the Tribunal should decide not to terminate its

preliminary investigation and to proceed to a public hearing of evidence) has any entitlement to make submissions to the

Tribunal concerning the exercise of its sole discretion in the investigatory stage as to whether the Tribunal will terminate

that investigation or proceed to a public hearing of evidence. Unless orders are proposed to be made against a person

during the investigatory stage (e.g. a discovery order), the Tribunal is not obliged to entertain submissions from any party

as to whether the Tribunal will initiate an investigation, decide that certain matters warrant proceeding to a public hearing

of evidence, or discontinue or otherwise terminate an investigation, as such matters lie within the sole discretion of the

Tribunal at the investigatory stage, which it may exercise without being obliged to hear submissions from a potential

witness.” (emphasis added)

Counsel for the Tribunal also contends that the appellant continues to misunderstand its stance on precisely what discretion it has,

including the discretion once counsel for the Tribunal opened the hearing at the end of January, 2004, and argues it had not changed

its position, either shortly before the hearing in the High Court, or at any stage, and has not since changed its stance, which

corresponds, and has always corresponded, with the above submissions.

Conclusion

In relation to tribunals such as the one involved in these proceedings, it is critical to point out that they have, and must be permitted

to have, a considerable margin of appreciation in relation to the manner in which they organise their procedures and affairs. That

margin of appreciation must be, and always has been, recognised and respected by courts. This principle is well established in the

case law, and has been repeated by this Court and by the High Court in several judgments, which are not necessary to cite at this

stage.

The present appeal, however, does not, in reality, attack the Tribunal’s proper – even wide - margin of appreciation, nor the general

right of this, or any other, tribunal to organise its own affairs and procedures as it wishes. Rather, the appeal and the proceedings are

based entirely on the specific exercise of a particular discretion, in respect of which the Tribunal itself may have regard to particular

criteria, according to the actual wording of the extant amended Terms of Reference. These are ones which the Oireachtas, when

adopting the Resolution to amend the Terms of Reference as recommended by the Tribunal, and as incorporated into the Ministerial

Order referred to above, obviously considered would, or might be, relevant to the exercise by the Tribunal of its discretion. It cannot

be gainsaid that in this appeal the relevant criteria referred to in the amended Terms of Reference are all relevant factors which, in

particular cases may, or should, be taken into account by the Tribunal. They include, as is clear from their terms, matters in respect

of which a person, such as the appellant, would or could have particular information, even perhaps information not already known to

the Tribunal. They are not criteria which, on their face, are included in the amended Terms of Reference for the exclusive benefit of

the Tribunal, even if it is the Tribunal which exercises the eventual discretion.

Equally, there are undoubtedly occasions also when a body such as a Tribunal of Inquiry must be decisive. The Tribunal in this case

has from time to time been assailed by unjustified assertions that certain action is required by the rules of natural justice. In

hindsight, at least, however, it appears regrettable that a rather robust, perhaps even dogmatic, position was adopted by the

Tribunal in the present matter, and that much subsequent delay, expense and litigation might have been avoided if the Tribunal had

agreed to consider submissions (even in limited form). While fully recognising and appreciating the Tribunal’s desire to avoid a further

round of submissions and argument on a matter, ultimately for the Tribunal in its discretion, to decide, nevertheless, by refusing to

entertain any submissions whatsoever, in any form, on behalf of the appellant, the Tribunal set up a clear issue of law, which required

to be determined.

It seems patently clear that neither of the reasons advanced by the Tribunal on the 27th November, 2004 at the oral hearing can, in

law, justify the stance actually taken by the Tribunal, if, as is clear, the decision to be taken was one which affected, or could

adversely affect, the appellant’s interests, and could therefore be said to attract an obligation to apply the principles of natural

justice. As to the first basis invoked by the Tribunal, while undoubtedly it may have had in its possession information and

documentation to which the appellant did not have access, and of which he might have no knowledge, it does not follow from that

fact, that the appellant, or counsel on his behalf, should not be permitted to make submissions based on information and

documentation within the knowledge of the appellant, even peculiar to him, in connection with the exercise of the discretion by the

Tribunal, together with the reasons for it. As to the second basis, this too cannot, in law, constitute a good reason for refusing to

permit a person who does wish to be heard, and who is otherwise entitled to be heard, from making submissions in connection with

the exercise of the discretion. The mere fact that a large number of persons might wish to become involved cannot, of itself, alter

what is required by the rules of natural justice: that is merely a reflection of the scope of the Tribunal and the number of parties

affected by it. In fairness to the Tribunal, however, this second reason was not the principal basis upon which the Chairman rested

his ruling.

Moreover, the fact that a decision is one which is going to be taken in the exercise of a discretion, even a very wide discretion, is

also not a ground, in itself, for departing from the basic principle of audi alteram partem. Neither the breadth of the discretion, nor

the fact that it is described as the “sole” discretion of the Tribunal, and thus may only be reviewed in very limited circumstances,

could, in law, lead to the automatic conclusion that if that decision is one adversely affecting the interests of a party, it does not

attract the rules of natural justice. Indeed, it might be said that where the discretion afforded is very broad, as here, and the limits

on possible review may be correspondingly very narrow, this makes it all the more important that an affected party should have the

right to make submissions before a decision is made. If anything, the scale of the Tribunal and the fact that there is no appeal from

its findings emphasises the importance of scrupulous adherence to the rules of natural justice.

On the face of it, therefore, and as a matter of first principle, it seems clear that this issue involves a canon of administrative law of

an almost rudimentary nature – that if the decision may, or will, affect the interests of another, sufficient to require adherence to the

principles of natural justice, then a party affected - and certainly an affected party who expresses a desire to make submissions –

must be heard, at least in some form [See Dellway Investments & Others v. National Asset Management Agency & Others

(Unreported, The Supreme Court, 12th April, 2011)] in which it was stated that: “person whose interests are capable of being

affected directly by a decision of a public body exercising statutory powers is ordinarily entitled to have notice of the intention to

consider the making of the decision and to have his representations considered by the decision maker”. It was not suggested at any

time before this Court, or to the High Court, that the Tribunal was not making a “decision” which might adversely affect the appellant,

even significantly so, nor is there any question of the decision being merely a fact finding exercise, which might not otherwise attract,

overall, the Rules of Administrative Law.

In this appeal, counsel for the Tribunal, however, seeks to defend the decision on a basis not expressly invoked by it at all when

making its ruling on the 27th November, 2004, and nor was it the declared basis for the ruling, although also raised as a defence in

the High Court. On that occasion, when it made its ruling, it stated, inter alia, “The Tribunal is not prepared to hear any submissions

as to how the tribunal should exercise its discretionary powers provided for in the new Terms of Reference”. (emphasis added) The

point now made might have been detectable, but with some very considerable effort, in the reference to “nothing having changed”,

made by the Tribunal not in support of its decision, but in the course of exchanges with counsel during argument earlier in 2004 at the

opening address of counsel for the Tribunal referred to above. It is contended now on behalf of the Tribunal, however, that what was

involved here was “its decision to move from private sessions to public hearings”. This stated basis is cited in the High Court as one of

the issues between the parties before it. It is the basis for the High Court judgment and remains the basis, according to the written

submissions filed on behalf of the Tribunal before this Court, and all the foregoing in reliance on the allegation that the appellant

cannot challenge the Tribunal’s decision to move from preliminary investigation stage to public enquiry stage. It is argued that, not

only is there no authority for the proposition that a tribunal should entertain a submission as to how it should make such a decision,

but further, there was relatively recent authority, from this Court, to the contrary: Redmond v. Flood [1999] 3 I.R. 79. It is

contended that if the appellant were to succeed, this Court would have to overrule that decision.

Although not either of the bases actually invoked for the decision made, to understand counsel for the respondent’s argument on this

point – and why in this Court’s view it is, in any event, misconceived – it is necessary to look more closely at the decision invoked.

Redmond v. Flood, supra. involved a challenge, brought in the early days of the life of this same Tribunal, to the manner in which the

Tribunal was then proceeding. Mr. Redmond had sought leave to issue judicial review proceedings. Leave was granted, however, only

in relation to a limited number of grounds, being those concerning fair procedures in relation to the public hearing, not relevant in this

appeal. That aspect of the case is not relevant to this appeal. It was, on the other hand, refused by the High Court in relation to

those concerning the interpretation by the Tribunal of its Terms of Reference. Since the appeal was against the refusal of leave on

the latter issue, the hearing in this Court was ex parte pursuant to the Rules of the Superior Courts, and this Court dismissed Mr.

Redmond’s application.

Even from the above account it is clear that the argument on which the Tribunal now relies in this case was by no means to the

forefront of the decision of this Court in Redmond. However, as is pointed out by counsel for the Tribunal, correctly, among the

grounds alleged in the Redmond case was that the Tribunal, under its Terms of Reference, if it conducted a private investigation,

could then conduct a full public inquiry, once it determined that “sufficient evidence exists in relation to that matter to warrant

proceeding to a full public inquiry in relation thereto.” It had been contended by Mr. Redmond that he was entitled to “an opportunity

to make representations in relation to the evidence available to the tribunal before the tribunal reaches a determination as to the

sufficiency of the evidence.” (emphasis added)

Hamilton, C.J., observed that fair procedures and the principles of constitutional justice did not require that the proceedings of the

tribunal be conducted in private at all. Indeed, it was the essence of such inquiries, he noted, that they be held in public, for the

purposes of allaying the public disquiet that led to their very establishment. Clearly, there can be no challenge to the well

foundedness of these observations as to tribunals, such as the present Tribunal (the subject of the observations). This point was

dealt with in the following paragraph of the judgment:

“An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, is a public inquiry. The Court in the passage quoted

accepted that it was proper for a tribunal to hold preliminary investigations in private. This would enable the Tribunal,

inter alia, to check on the substance of the allegations and in this way would protect the citizens against having

groundless allegations made against them in public. But the Court was not suggesting that the tribunal should proceed to

a public inquiry only if there was a prima facie case or a strong case against a particular citizen. It was suggesting that

the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal is not obliged to hold a

private inquiry before proceeding with its public inquiry. The allegations made against the applicant in this case could be

false. At this stage we simply do not know. But they are grounded on a sworn affidavit. In these circumstances it appears

to this Court that the Tribunal was entitled to decide that they were of sufficient substance to warrant investigation at a

public inquiry. Indeed it would have been surprising if the Tribunal had decided otherwise.

This being so this Court cannot see any basis on which it could grant leave to apply for judicial review on this particular

ground.”

The Court also observed that the fundamental nature of a tribunal of inquiry was to hold public hearings. If a public hearing was held

without any preceding private inquiry that would be perfectly lawful. This Court accepted that there was simply no other reasonable

conclusion open to the Tribunal in that case, however, but that the allegations made on sworn affidavits against Mr. Redmond, were

of sufficient substance to warrant a public inquiry. The extract makes it clear that this Court did not deal with the claim that there

was an entitlement to make representations and submissions on the decision itself, and it is not evident that that point was even

advanced, or relied on, in argument. This is particularly clear, when it is recalled that what was being sought was an opportunity to

make representation “as to the sufficiency of the evidence” prior to the Tribunal reaching a decision. Redmond is, therefore, far from

an authority for the broad proposition for which the Tribunal now contends, but which, in any event, was not the basis originally

invoked for the impugned decision.

The argument advanced on behalf of the Tribunal in this appeal, wrongly in this Court’s view, is that its starting point is to

characterise the decision to be made in the exercise of its discretion under the resolutions of the Houses of the Oireachtas of the

17th November, 2004, as essentially the same as that which was at issue in Redmond. That does not appear to be so. What was

involved in Redmond was a well recognised decision, such as those made by prosecutorial or investigative agencies that there was

“sufficient evidence” to warrant commencing proceedings, or in that case, at least, hearings in public – a decision which has never

been the subject of judicial review. The decision challenged in Redmond v. Flood, that is, whether to move from private to public

hearings on the basis of its assessment of the evidence, was one which belongs to a limited class of decisions under administrative

law, which cannot normally be challenged by way of judicial review. It cannot be said, as a general rule of administrative law, that

before a public authority or body commences proceedings against an individual, it must always or necessarily give that individual an

opportunity to make submissions as to why proceedings should not be initiated. The individual’s rights are, in general, adequately or

even fully protected by any hearing that is subsequently afforded to him. [See: Redmond v. Flood, supra., and Wiseman v. Borneman

[1971] A.C. 297].

On the other hand, the decision to be made by the Tribunal in the present case was significantly different, it being both broader and

deeper, both as to the decision itself and the criteria by which it was to be made. It was not simply whether to proceed from private

to public hearings (as the Court in Redmond observed, a low threshold for the Tribunal in the case of a public enquiry) and did not

involve any consideration of the sufficiency of evidence (itself essentially a matter of judgment for the investigators), which the

applicant in Redmond sought to do. Rather, it was whether to commence or to proceed any further with any particular investigation

at all.

Furthermore, the very basis upon which this Tribunal was to be entitled to make any such decision was also quite different to that

which arose in Redmond. There is no question here of sufficiency of evidence. Instead, there are a series of criteria set out in the

Amended Terms of Reference, which are open-ended and contestable. These are factors in respect of which interested parties might

be able to make helpful submissions, not by way of analysis of allegations or the sufficiency of evidence, but in relation to the criteria

specifically referred to in the Amended Terms of Reference, such as age, state of health of persons likely to be important, or essential

witnesses, and their likely age or state of health at such time in the future, when the matter might proceed to public hearing, and the

likely length, and even the cost, the benefit, or the utility of such hearings. As mentioned above, they are not criteria which, on their

face, are included in the amended Terms of Reference for the exclusive benefit of the Tribunal, even if it is the Tribunal which

exercises the eventual discretion. There is, therefore, a material distinction between both the issues and the findings in Redmond v.

Flood, and the decision in issue in this appeal. They cannot be characterised as essentially the same decision, or even as analogous

decisions.

These distinctions are critical. A further distinction between the decision at issue in Redmond and that at issue in this appeal, is that

the only consequence for Mr. Redmond, if the tribunal determined that there was sufficient evidence to warrant public hearings, was

a public hearing at which his rights would be fully protected, and in which he could demonstrate not only that there was insufficient

evidence, but that the evidence actually established did not justify any finding against him. In that sense, a decision on the prima

facie case which he was seeking to challenge was not at all determinative. It was simply part of a process which necessarily involved

a full public hearing at which his rights are fully protected by the procedures required by natural justice. As well as being the law, this

is also common sense. In the present appeal, however, the decision made by the Tribunal, in the exercise of its discretion, is a once

and for all decision, and is final. It will not, and cannot, be revisited or remedied in any way by public hearings of the Tribunal. In such

circumstances, it seems plain that an affected party ought to have the opportunity of addressing the Tribunal, at least in some form,

on the decision which it is about to make.

The suggestion on the part of the Tribunal that its stance has always been consistent is correct, but nevertheless erroneous. On the

question of the discretion to be exercised, it is said that this only exists, at least for present purposes, where there has been no

decision to move from private investigative stage to public enquiries by way of hearing, and this could not, in any event, arise on the

facts of this appeal. A reading of the amended Terms of Reference does not appear to support such a narrow interpretation, when all

the terms are read together. Moreover, counsel specifically reserved his position to argue fully against both the issue of vires and fair

procedures, and at the earliest possible date, and which matters were not resolved by subsequent correspondence.

The Tribunal instead made a blanket ruling not to consider entertaining submissions of any nature whatsoever in respect of its

decision, even to the extent of stating, in respect of the letter sent on the 25th November, 2004, in advance of its ruling on the

27th, that once it noted the introduction to the submissions in that letter, and realised they concerned the discretion existing under

the amended Terms of Reference, they ceased reading them. For the reasons set forth above, this approach was wrong in law. It

follows ineluctably that the High Court was, in turn, wrong to reject this part of the appellant’s challenge to the Tribunal’s decision,

and in its judgment the High Court, in reality, gave no legal basis upon which the Tribunal’s decision could be considered to have been

valid, apart from stating that the Tribunal, “has its own way of doing things” and has powers to “order its own procedures”, reasons

which do not constitute a reasoned basis for its finding.

As an addendum to the foregoing, however, the issue of the right to be heard clearly involved a matter on which it was entirely

appropriate for the Tribunal to say it would only consider, for example, written submissions, indeed even written submissions of a

limited length. The Tribunal already had submissions in written form and, on its own evidence, had considered their introduction, if

only for the purposes of deciding that it would not entertain them. The position adopted was, however, more stark, because it is a

common practice of tribunals to engage in sometimes protracted correspondence with parties in which submissions are made and

contentions are advanced and responded to by the Tribunal. In the event, however, that was not the approach of the Tribunal in this

case, which based its decision not on this ground, but on two separate grounds, both of which were also, in law, unsustainable.

The Ultra Vires Issue

This issue can be dealt with briefly. The ultra vires issue really falls into two separate parts. In the first place it is argued on behalf of

the appellant that the Tribunal asserted a competence or jurisdiction to make any inquiry into the mere ownership of lands in respect

of which no corruption was alleged. This point is argued on the basis that such competence does not come within the original Terms

of Reference. The appellant, secondly, contends that in his judgment, the learned High Court judge wrongly dealt with this issue as a

reasonableness or rationality issue, rather than as an ultra vires issue. On the issue of vires, the Tribunal argues that the subject

matter of the Carrickmines II Module fell within the proper scope of the inquiries which the Tribunal is required and/or empowered to

carry out pursuant to paragraph A(5) of the original Terms of Reference, by reason of the more general mandate given to the Tribunal

under that paragraph. In any event, the argument of the appellant is now irrelevant, it is said, because the Terms of Reference, as

amended in November/December, 2004, expressly mandate the Tribunal to proceed “as it sees fit” to conclude its inquiries, including,

in particular, the Carrickmines II Module.

Conclusion

The finding of the learned High Court judge on vires supports the appellant’s argument that he did deal with the matter as a

reasonableness or rationality issue. Such an approach is not supported by the case law, as the issue of vires is to be considered in

the context of the actual powers vesting in the Tribunal. It is not a question of considering whether, for example, the Terms of

Reference in the legislation can be read in a manner which allows these to be reasonably interpreted as coming within the powers

vested in a decision maker. In the case of the Tribunal, established within the ambit of the Tribunals of Inquiry Act 1924 as amended,

the scope or ambit of its powers are to be determined within the strict terms established by the Houses of the Oireachtas, and as

found in the Orders of the Minister made thereon.

While, however, the learned High Court judge was wrong in law in deciding that the Tribunal had the latitude he allowed in its

interpretation of the Terms of Reference, and this might, in general, permit the appellant to succeed, it is clear that on a

consideration of the second aspect of the issue of vires, that is, by reference to the amended Terms of Reference, the determination

of the learned High Court judge that the Tribunal was correct, was a good finding in law. This is because, although his reasons may

not have been correct for the actual finding made, it was a correct finding, having regard to the clear terms and specific references

made in the amended Terms of Reference to the Carrickmines II module, and specifically Phases 2 to 8 thereof. As is clear from the

above background narrative, the Tribunal had already filed the Fourth Interim Report, and had sought additional powers in that report,

including those which permitted the Tribunal to make, inter alia, the very enquiries it had been making, or proposed to make.

In the circumstances, the appellant cannot succeed in his appeal on this ground of vires.

The Delay Issue

Finally, on the issue of delay, it was argued by the Tribunal that its decision to commence public hearings in relation to the subject

matter of Carrickmines II Module was taken in November, 2003, and shortly thereafter in early 2004 objected to by the appellant on

many of the grounds upon which it is now sought to challenge that decision in these proceedings. The appellant did not seek leave to

commence judicial review proceedings, however, until the 9th December, 2004 and was, on that argument, accordingly outside the

time limits for making such an application, as laid down in Order 84, Rule 21(1) of the Rules of the Superior Courts. No application was

made to extend the relevant period, and counsel for the Tribunal argues that no grounds, in fact, exist for any such extension, had

any such application been made. Nor had the appellant acted promptly as required by the Rules and the case law in that regard. The

learned High Court judge, in finding this to be so, was therefore correct in his findings.

The issue of delay can be disposed or readily. It is true that the appellant was notified in November, 2003 of the impending public

hearings and attended, but on counsel’s opening argument for the Tribunal reserved his position on the scope of the enquiry and the

intent of the Tribunal in early 2004, immediately after counsel’s remarks. Equally, the stance of the Tribunal on the exchanges of

letters was clear by July, 2004. However, both the issue of vires and that of fair procedures depend materially on the content of the

amended Terms of Reference. While it is true the Tribunal, in its own interim report, sought changes, they were not, and could not, in

fact, be adopted or put into effect until passed by resolution of the Houses of the Oireachtas in late November, 2004.

The application for judicial review was made just after the Minister making his Order in December, 2004, and within weeks of the

Oireachtas resolutions, incorporating the specific amended Terms. The application was, therefore, well within the time prescribed by

the Rules, and also promptly. In the circumstances, it is not possible to agree that the learned High Court judge was correct in holding

that the latest relevant date was July, 2004.

Conclusion

In light of the foregoing findings, the Court concludes that the learned High Court judge erred in law on two of the three material

issues. The appeal is, therefore, allowed and the Court will set aside the High Court judgment and the Order made thereon.