(with whom Geoghegan J & Finnegan J concur)
These are judicial review proceedings in which Owen O'Callaghan, John Deane, Riga Limited and Barkhill Limited, the applicants/appellants, hereinafter referred to as "the applicants", have appealed to this Court from the judgment and order of the High Court (Smyth J.) delivered on 10th October, 2006, which order refused the applicants the reliefs they sought. Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys, are members of the Tribunal of Inquiry into Certain Planning Matters and Payments, and are hereinafter referred to as 'the Tribunal'.
In these proceedings the applicants seek to stop the Tribunal from investigating further, or making any findings against, the applicants, on the basis of bias, partiality and/or unfairness by Tribunal.
Inspite of the fact that these are judicial review proceedings, a significant feature of this case is the very high level of factual detail in the pleadings and in the submissions, as to the proceedings before the Tribunal. To address fully the issues submitted by the applicants I consider that it is necessary to refer in some detail to the allegations.
The applicants were granted leave to apply by way of judicial review for the following reliefs:
an order of prohibition by way of judicial review prohibiting the Tribunal from further investigating or making any finding in relation to matters affecting the applicants;
an order of certiorari by way of judicial review quashing the decision of the Tribunal whereby the Tribunal refused to desist from further investigating or making any findings in relation to matters affecting the applicants.
The grounds upon which the applicants were granted leave to seek judicial review were lengthy, replete with facts, and as follows:
The first named applicant is a property developer and is a director of Barkhill Limited having its registered office at Mahon Industrial Estate, Cork and Riga Limited having its registered office at Mahon Industrial Estate, Cork. The second named applicant is a solicitor acting as a consultant to the firm of Ronan Daly Jermyn, Solicitors, 12 South Mall, Cork and is a property developer and a director of Barkhill Limited and Riga Limited.
(i) The applicants have been granted representation at the Tribunal. The Tribunal was established by the Oireachtas in October 1997 and its terms of reference has been expanded on a number of occasions to investigate alleged improper payments to politicians in connection with the planning process. The Quarryvale I Module of the Tribunal commenced in public session on the 3rd of March 2004 being day 455 and is entitled "Arlington/Quarryvale and related matters". The said module was concerned with allegations of corruption relating to lands at Bachelor's Walk in Dublin City and Quarryvale in west County Dublin.
(ii) The Quarryvale I Module deals with the years 1987 to 1990.
A further module of the Tribunal was due to commence on the 29th of November 2005 to deal with Quarryvale lands thereafter, from the years 1990 to 1996. The Tribunal had not yet commenced public hearings into the Quarryvale 2 Module and while the majority of the public hearings dealing with the first module have been completed, it was envisaged that the Tribunal would resume further hearings to complete outstanding issues.
Prior to the commencement of the Quarryvale I module, the Tribunal caused to be distributed to relevant interested parties a brief containing statements and documents. The brief was accompanied by a letter from the Tribunal. This brief was intended to consist of all evidence to be adduced before the Tribunal for the first module and was distributed to the applicants before they were granted representation. The brief was subsequently thereafter supplemented by the Tribunal on a number of occasions.
On the 12th of December 2003 the Tribunal circulated a document entitled "An explanatory memo re: Rezoning Module". This document purported to describe the procedure adopted by the Tribunal in the conduct of the inquiries in public. This indicated that relevant material would be circulated as part of the brief.
The brief for the Quarryvale I Module was circulated to interested parties and contains statements from various proposed witnesses with relevant documentation. It included a lengthy statement from Tom Gilmartin dated the 25th of May 2001, large parts of which were redacted apparently on the basis that they did not concern that particular module. The only allegation made as against Owen O'Callaghan in the portion disclosed suggested that he was present in Buswell's Hotel when a demand of Tom Gilmartin for £100,000 by Councillor Finbarr Hanrahan [was made].
The said statement was subject to a letter of correction by A & L Goodbody, solicitors acting on behalf of Tom Gilmartin.
The evidence of Tom Gilmartin to the Tribunal commenced in public on the 3rd of March 2004. During the course of his evidence serious allegations were made as against the applicants apparently for the first time which affected the applicants' good name and reputation in business. In the course of the testimony of Tom Gilmartin the Tribunal did not directly or through its counsel prevent him from making these allegations. Amongst the allegations made by Tom Gilmartin for the first time he alleged that an agreement of the 31st of January, 1989 entered into by the said Tom Gilmartin with Owen O'Callaghan had been falsified by Owen O'Callaghan and John Deane so as to alter the terms thereof. He alleged that on the 7th of December, 1988 Owen O'Callaghan had told Tom Gilmartin that the line of Lee Tunnel has been altered to suit a site which he owned at Mahon and that he had just previously been at a dinner for the opening of the tunnel. He also alleged that one of the reasons why £50,000 was paid by him to the Minister for Environment, Padraig Flynn by way of a cheque in which the payee was left blank was for the purposes of stopping the activities of Owen O'Callaghan. He alleged that Owen O'Callaghan gave false information to the British Revenue resulting in Tom Gilmartin being declared bankrupt. He alleged that Owen O'Callaghan had bribed Councillor Sean Gilbride. He also alleged that the purchase by Tom Gilmartin of Owen O'Callaghan's interest in a site at Balgaddy, County Dublin was the result of Owen O'Callaghan holding Tom Gilmartin to ransom. He alleged that Owen O'Callaghan with the connivance of Allied Irish Banks Plc stole Tom Gilmartin's money and used it to bribe councillors to block re-zoning for the Quarryvale Scheme. He also alleged that Owen O'Callaghan encouraged Tom Gilmartin not to co-operate with a Garda investigation into his allegations.
These allegations appeared to the applicants at the time to be made by Tom Gilmartin for the first time in the course of his testimony and were profoundly serious and impugned the good name of the applicants and each of them. The allegations are false.
Tom Gilmartin was thereafter cross-examined by counsel on behalf of An Taoiseach and in the course of this cross-examination it emerged for the first time that Tom Gilmartin had had meetings with members of the Tribunal team and had made certain oral statements and furnished at lease one prior written statement to the Tribunal. None of these documents had been circulated in the brief. Tom Gilmartin accepted there were probably inconsistencies between his statement and testimony and earlier statements made to the Tribunal. This emerged by chance. The Tribunal then ruled that it would not conceal from interested parties information which would suggest that there was a glaring inconsistency between an account given on a previous occasion privately to the Tribunal and one given publicly because that would be wrong. Nevertheless, it refused to allow counsel to pursue the issue of prior statements or their contents in cross examination with Mr. Gilmartin.
On the 18th of March 2004 solicitors acting on behalf of Owen O'Callaghan sought a copy of the earlier statements submitted by Tom Gilmartin with confirmation that no other statements to the Tribunal relevant to the first module existed. This request was made on the day before cross-examination was due to commence by senior counsel retained on behalf of the applicants.
On the 24th of March 2004 the Tribunal issued a ruling on the application and referred to two categories of documents. The first were documents prepared in the course of private investigative stage of the inquiry by members of the Tribunal's legal team and the second were documents provided by Tom Gilmartin's then solicitor Mr. Noel Smyth. The Tribunal refused to disclose any of these documents. The Tribunal indicated that it had received documents from Mr. Gilmartin on the basis of confidentiality and that there were no exceptional circumstances in existence which would merit a departure from the existing procedures of the Tribunal and it determined that in accordance with these procedures it would not permit the documents or statements to be disclosed.
The refusal of the Tribunal to disclose the statements and documents to Owen O'Callaghan to facilitate the cross-examination of Tom Gilmartin failed to respect the principles of natural and constitutional justice and basic fairness of procedures and was in breach of Article 40.3 of the Constitution of Ireland 1937.
As a consequence of the ruling of the Tribunal made on the 24th of March 2004 an application for access to the documents was made by way of application for Judicial Review. This application was fully resisted by the Tribunal in the High Court. The application succeeded before the High Court. The Tribunal appealed the whole of the judgment to the Supreme Court. In the course of its appeal to the Supreme Court the Tribunal filed written submissions denigrating the importance of Owen O'Callaghan's proceedings and suggesting that he was simply seeking access to documents to use as ammunition for cross examination of Mr. Gilmartin. The Supreme Court ruled in favour of Owen O'Callaghan.
Consequent upon the judgment, and for the first time, the Tribunal raised the question of redaction. The Tribunal sought to redact large segments of documents. This was challenged by Owen O'Callaghan in the said proceedings which were remitted to the High Court for consideration. On the 29th of July 2005, the High Court determined that certain segments of the documents ought not to have been redacted. This decision has not been appealed by the Tribunal to the Supreme Court. Certain documentation was made available to the applicants following upon the determination of the Supreme Court. Further documentation has been made available to the applicants since the subsequent judgment of the High Court on 29th July 2005.
The documents in total disclosed were extensive and consisted of 57 documents, some of which were lengthy.
As a result of the disclosure of these documents it is evident that Tom Gilmartin was in contact with senior counsel for the Tribunal on at least 36 occasions. The Tribunal legal members travelled to London to meet him. A draft affidavit was prepared for Tom Gilmartin with assistance from Tribunal counsel. The applicants were never allowed the opportunity of coming to meet the Tribunal in private session despite offers so to do. The ruling of the Tribunal on the 24th of March 2004 indicated that all written and oral statements received from Tom Gilmartin were accepted on the basis of an undertaking as to confidentiality other than the statements circulated. No such undertaking was offered to the applicants. Tom Gilmartin sought and obtained immunity from prosecution. No such immunity was offered to the applicants. The terms of the immunity have never been disclosed. Further, it appears that the Tribunal formed and expressed a view to Mr. Gilmartin at a comparatively early stage in the preliminary investigation as to his veracity saying that he did not need immunity. By way of contrast, during the preliminary investigations, the Tribunal formed and expressed the view to Mr. Gilmartin that it would prove fraud against Owen O'Callaghan. Thereafter, on at least two occasions, the Tribunal disclosed confidential information to Mr. Gilmartin during the preliminary investigation.
The Tribunal was in possession of a considerable volume of information emanating from Tom Gilmartin which was known to the Tribunal and must have been known to contain inconsistencies which would undermine Tom Gilmartin's testimony but which was nevertheless not circulated and only emerged following compulsion by order of the Court. The Tribunal proceeded to conduct the first module of public hearings and Tom Gilmartin was called to testify by the Tribunal, examined in chief and cross-examined without the existence or content of this information being made known.
The information not disclosed by the Tribunal was highly relevant and revealed serious inconsistencies, giving rise to serious concerns for the applicants as to the approach of the Tribunal to Tom Gilmartin and in comparison, to the applicants. The documentation now revealed discloses a serious disparity in treatment between that afforded to the applicants and that afforded to Tom Gilmartin. Of serious concern was the extent of the serious inconsistencies between the evidence given by Tom Gilmartin and statements made by Tribunal counsel during the course of the public sessions. The Tribunal ignored these inconsistencies notwithstanding that it knew of such matters. Further the Tribunal in public session determined that there were no inconsistencies between that documentation which the applicants had received and the evidence given by Tom Gilmartin on the one hand, and that which was in the Tribunal's possession, unknown to the applicants on the other. Had Owen O'Callaghan not pursued this matter through the courts he would never have known of the extensive body of documentation held by the Tribunal which contains serious inconsistencies with the evidence given by Tom Gilmartin and of the grievously wrongful nature of the determination of the Tribunal on the 24th of March 2004.
Further during the course of the hearings of the Quarryvale I module senior counsel on behalf of the applicants was cross-examining Tom Gilmartin on an issue concerning a discussion between Tom Gilmartin and on Finbarr Hanrahan at Buswells Hotel when objection was taken to this line of cross-examination. When counsel pointed out that Tom Gilmartin's credibility was being challenged one of the members of the Tribunal commented that he had no doubt that Owen O'Callaghan knew Mr. Hanrahan quite well. This was a disturbing comment and it was pointed out that Owen O'Callaghan did not know Finbarr Hanrahan quite well at that time but knew him only to see. In light of the large number of false allegations by Tom Gilmartin present on the Tribunal files, the existence of which has only come to the attention of the applicants now for the first time since the documents have been unredacted the applicants are concerned that the Tribunal held a certain view of Owen O'Callaghan.
The Tribunal took no steps to prevent untrue testimony being adduced when it knew that contradictory and inconsistent statements had been made by Tom Gilmartin. An allegation was subsequently withdrawn, such as that made as against Mary Harney TD, by Tom Gilmartin several days after it was made when the Tribunal must have know from statements in its possession that the allegation from the moment it was made in evidence was untrue. Nevertheless, the Tribunal did not correct the record at the time. The applicants became concerned that the Tribunal may have been involved directly or indirectly in informing Tom Gilmartin that his evidence in relation to this topic was capable of being objectively and definitively contradicted, although the Tribunal denied it in subsequent correspondent.
In relation to a number of matters it appears to the applicants that the Tribunal sought to protect Mr. Gilmartin from the consequences of the disclosure of earlier statements that he had made to the Tribunal. Meanwhile, while possessed of information in which the most serious and untrue allegations were made against the applicants, it invited the first and second named applicants to testify, exposed them to examination and cross examination and proposed to sit in judgment on the credibility of their testimony without having disclosed or afforded them the opportunity of disputing the material contained in the aforesaid allegation.
Having regard to the investigative nature of the Tribunal and in particular its statutory obligation to investigate the facts, it was required, as a matter of law and constitutional justice to put to Mr. Gilmartin his prior inconsistent statements and in particular prior statements containing a glaring and/or significant inconsistency. The Tribunal's failure so to do constituted a breach of its statutory obligation and/or its obligation under the Constitution and in particular its obligation to ensure fair procedures and equal treatment and/or gives rise to a reasonable apprehension of bias.
On the 13th day of September 2005 the applicants through their solicitors wrote to the Tribunal requesting it to confirm that it would desist from further investigating or making any findings in relation to the matters affecting the applicants or any of them.
On the 26th day of September 2005 the Tribunal responded indicated that it would refuse to provide such confirmation and indicating that it intended to continue with the investigation into the affairs of the applicants. In the course of that letter, the Tribunal stated that it had been lead to the conclusion that "you" have elected to pursue a course of dealing the Tribunal which is intended to create the false impression that "you" have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issue involving "your clients". The applicants understood (and reasonably understood) this statement to be an expression of conclusion by the Tribunal to the effect that the concerns that they had expressed through their solicitors in correspondence were not sincere or genuine and that their concern as to the capacity of the Tribunal to deal fairly and impartially with the issues against them were not legitimate. They were greatly disturbed that in circumstances where they had to face into a lengthy hearing before the Tribunal which would ultimately make findings on allegations against them, the Tribunal had already reached a conclusion which was so damning in terms of their bona fides. They also felt intimidated by the tone and content of the entire reply. In subsequent correspondence with the Tribunal, the Tribunal stated by letter of the 27th October 2005 that the conclusion of the Tribunal referred to related to the conduct of the solicitors acting for the applicants and not of the applicants themselves. This placed the applicants and their solicitors in an even more invidious position as pointed out to the Tribunal in subsequent correspondence.
The applicants cannot have and do not have any faith in the fairness of the process or the procedures of the Tribunal. They are of the view and are entitled to form the view that the Tribunal cannot fairly adjudicate upon allegations of impropriety against them. The applicants reasonably suspect bias and partiality on the part of the Tribunal in the treatment of Tom Gilmartin on the one hand and of the applicants on the other hand. Alternatively there is a real likelihood of such bias or partiality.
This case follows upon earlier proceeding brought by Mr. Owen O'Callaghan against the Tribunal. That earlier case arose in the following circumstances. On the 3rd March, 2004, Mr. Tom Gilmartin began giving evidence at a Public Hearing of the Tribunal on Quarryvale I. During his evidence he made many very serious allegations against Mr. Owen O'Callaghan. Mr. Owen O'Callaghan had had no notice of these allegations. Indeed, there was a degree of surprise by the Tribunal also. In cross-examination it emerged that there was other written material with the Tribunal, other than that which had been circulated in the Tribunal's brief for the module. Requests were made to see the relevant documents. Subsequently the solicitors for the applicants wrote to the Tribunal seeking documents. On the 24th March, 2004 the Tribunal formally ruled that the documents were not available because of their rule of confidentiality. Mr. O'Callaghan commenced proceedings and in O'Callaghan v Mahon  IESC 9 hereinafter referred to as "the earlier O'Callaghan case", this Court held that the applicants had been denied their constitutional rights pursuant to In Re Haughey  I.R. 217 and that they were entitled to the documents which they had sought. Geoghegan J., with whom Murray C.J., Denham J. and Fennelly J. agreed, stated:
For the purposes of disposing of this appeal .... I think it is sufficient to rely only on In re Haughey  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 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.
The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In particular having 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. I would dismiss the appeal.
Thereafter there were proceedings in the High Court as to redactions in the documents disclosed. On 29th July, 2005 the High Court (O'Neill J.) ruled on the issue of the redactions by the Tribunal, disallowing some and permitting some. This decision was not appealed to this Court. I shall return to this matter later in the judgment.
It was the disclosure of these documents after the earlier O'Callaghan case which has formed the foundation for the applicants' claim in this case. After an exchange of robust correspondence these proceedings were commenced when the High Court (Abbott J.) on the 28th November, 2005 granted leave to apply by way of judicial review for an order of prohibition and/or certiorari.
This case was at hearing before the High Court for fifteen days, during various dates in March, April and May, 2006. In a reserved judgment delivered by Smyth J. on 10th October, 2006 the application was refused. The learned High Court judge referred to two central claims made by the applicants:
The applicants contended that the documents, and related fact documents obtained by them pursuant to previous court orders, demonstrated that the applicants have not been treated fairly by the Tribunal in the Quarryvale I Module, and have been denied fair procedures, in that they have been treated in an unequal manner compared to Mr. Tom Gilmartin. The applicants contended that Mr. Tom Gilmartin is a person who has made very serious allegations against them, and that this unfairness, denial of fair procedures, and unequal treatment, represents a serious infringement of their rights.
In addition, the applicants contended that there is an appearance of bias and partiality on the part of the Tribunal, and that the approach by the Tribunal to date gave rise to a reasonable apprehension or suspicion of bias.
The applicants contended in the High Court that the documentation which has been disclosed now as a result of the earlier O'Callaghan case contained a number of important matters which were significantly inconsistent with the statement of Mr. Tom Gilmartin and that it could not be credibly contended that such inconsistencies were not 'gross or glaring or significant'. The learned High Court held:
In my judgment it is now irrelevant what assurances(s) (if any) were considered to have been given to the court and such as did arise had their origins in counsel's submissions – because in the events the materials have now been disclosed as a result of the court orders, and any erroneous assessment or adjudication as to the inconsistencies or degrees thereof stand as set aside and can be addressed by the Applicants in open session at any future hearing by the Tribunal.
The learned trial judge stated that the point of departure for adjudication in this case is from full compliance by the Tribunal with the judgment in the earlier O'Callaghan case and from the order for leave granted by Abbott J. on 28th November, 2005 in this case. The learned trial judge referred to the judgment of Geoghegan J. in the earlier O'Callaghan case where he held:
.... 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 learned High Court judge in this case stated that when the documents were duly produced these proceedings began with a view, not to give effect to the order sought and obtained by the applicant in the earlier O'Callaghan case, but to prohibit the Tribunal from further investigating or making any findings in relation to matters affecting the applicants.
The learned High Court judge pointed out that while many of the public hearings regarding Quarryvale I have been completed, it appeared to be the intention of the Tribunal to resume hearings and complete that module. The learned trial judge held:
In my judgment it is incumbent on the Tribunal to recall Mr. Gilmartin so as to enable the applicants (now in possession of all the requisite documentation) to exercise the effective cross-examination which they claim to have been denied to them in the past. The Quarryvale II module has as yet not been embarked upon by the Tribunal and in this regard the Tribunal, in its circulation of documents has followed the guidance of the courts as set out in [the earlier O'Callaghan case]. Indeed counsel to the tribunal will have a role in this regard in order to test the credibility of the evidence.
The learned trial judge considered the specific issues which have been raised before him and which it was claimed illustrated unfair procedures and bias. He dismissed the application, having referred also to the doctrine of necessity.
Grounds of appeal
From the decision of the High Court to refuse the application the applicants have appealed. The applicants filed forty grounds of appeal, submitting that the learned trial judge erred in law or in fact or on a mixed question of law and fact:
In holding that the appellants were not entitled to an Order prohibiting the Tribunal from further investigating or making any finding in relation to matters affecting the appellants.
In holding that the appellants were not entitled to an Order of Certiorari quashing the decision of the Tribunal whereby the Tribunal refused to desist from further investigating or making findings in relation to matters affecting the appellants.
In failing to address the individual and specific issues raised by the applicants and the significance of same and to consider and determine in the light of the said issues whether there had been a failure to observe fair procedures in relation to the applicants such that the reliefs sought by the applicants ought to be granted.
In failing to address the individual and specific issues raised by the applicants and the significance of same and to consider and determine whether in the light of same the words and actions of the Tribunal complained of gave rise either individually or collectively to the appearance of bias in the eyes of a reasonable observer.
Wrongly treated as irrelevant inconsistencies between Tom Gilmartin's testimony and statement even where significant or glaring.
Wrongly treated as irrelevant the Tribunal's repeatedly stated view that inconsistencies in Tom Gilmartin's testimony and statements were insignificant or were not glaring.
Failed to attach any or any significant weight to the comment of the third named respondent as to how that comment (either alone or in combination with other matters complained of) might be perceived by the reasonable observer in the context of the applicants complaint of objective bias.
Wrongly found that what the applicants had sought to do in these proceedings was in part to seek to relitigate [the earlier O'Callaghan case].
Wrongly inferred that a case of actual bias was advanced at the leave stage and later "abandoned" when a case of objective bias only had been advanced.
Misunderstood the applicants' case as to the relevance of the Tribunal's view that inconsistencies in Tom Gilmartin's statement were insignificant.
Attaching weight to certain averments in an affidavit of Susan Gilvarry (while ignoring other averments) as to the view of the Tribunal instead of the appearance that the words and actions of the Tribunal would create in the mind of a reasonable onlooker.
Attaching or appearing to attach weight to a view that the outcome of [the earlier O'Callaghan case] may require the Tribunal to adopt a method of proceeding which was less orderly when this was not based on submissions by either party and was irrelevant.
In holding that in effect the applicants' case was that the individual members of the Tribunal have deliberately and consciously decided (and therefore conspired together) to favour and protect Mr. Gilmartin with a view to making a case against the applicants, the learned trial judge confused the concepts of subjective and objective bias.
In holding that there was an adequate explanation before the Court as to why the matter should proceed the learned trial judge erred in addressing an irrelevant question and drew the wrong inference in terms of the adequacy of the alleged explanation.
The learned trial judge drew the wrong inference as to the apparent meaning of the particular comment by the third named respondent the subject of the challenge.
The learned trial judge's observations as to the meaning and consequences of this Court's decision in [the earlier O'Callaghan case] (and in particular the judgment of Hardiman J.) were inappropriate and irrelevant and not the subject of argument before the learned trial judge but nevertheless appeared to influence his evaluation of the merits of the applicants' case.
In the context of the complaint by the applicants of the view expressed by the Tribunal in their letter of the 26th of September 2005 the finding that it was pardonable or that the Tribunal could reasonably have come to certain views failed to address the consequences in terms of fair procedures and/or objective bias of the Tribunal reaching, expressing and communicating a conclusion in the terms expressed in that letter.
In requiring the conclusion to the letter of 26th September 2005 to pass a test of being expressed "in such extreme and unbalanced terms as to throw doubt on the ability of the tribunal to try the issue that it is entrusted to try with an objective judicial mind" the learned trial judge applied the wrong test, or alternatively drew the wrong inference on the basis of the application of such a test.
In placing a benign interpretation on discrete aspects of what the Tribunal said and did whilst failing to address properly or at all how such words or conduct might appear to the reasonable onlooker.
In holding in respect of Mr. Gilmartin that the Tribunal was "entitled to assume that the man did not set out to deliberately perpetrate falsehood" when there was no factual or legal basis for this finding and the suggested assumption flew in the face of the evidence before the High Court. The trial judge was also incorrect to characterise such an assumption as the Tribunal being "entitled to approach their task with an open mind". Having an open mind does not equate with a presumption that persons making serious allegations are telling the truth. A presumption that a particular person making serious allegations against another is telling the truth is the antithesis of fair procedures and also, by definition, amounts to a presumption that a person denying such allegations is not telling the truth. Having found that the Tribunal had and exercised this presumption of truth the learned trial judge should have granted the applicants the reliefs they sought.
In failing to make a single finding that was critical of the manner in which the Tribunal has conducted itself which said failure flew in the face of the evidence before the learned trial judge.
In failing to give any or sufficient weight to the incorrect assurances which the Tribunal gave the courts on previous occasions and in particular in failing to consider whether such conduct might reasonably appear to evidence a disposition on the part of the Tribunal against the applicants.
In holding that it was now irrelevant what assurances the Tribunal gave the courts on previous occasions.
In holding that any erroneous assessment or adjudication by the Tribunal which led to the assurances the Tribunal gave the courts on previous occasions are a matter that could be adequately addressed in open session at any future hearing by the Tribunal.
In holding and/or attaching weight to a finding that the Tribunal "is anxious that the first named Applicant is provided with the opportunity for a full and effective cross-examination".
In holding that the recalling of Mr. Gilmartin at this stage is an answer to the applicants' complaints and in giving weight to the suggestion that "counsel to the Tribunal will have a role in this regard in order to test the credibility of the evidence" and in failing to give any or sufficient weight to the consistent failure of the Tribunal to meaningfully test Mr. Gilmartin's credibility in the past.
In failing to consider whether or not there is any reality to the Tribunal engaging in a "review [of] whatever earlier preliminary views it may have expressed in any form" on Mr. Gilmartin given its previous conduct including its giving of incorrect assurances to the courts.
In failing to give sufficient or any weight to the earlier failure of the Tribunal to disclose that Mr. Gilmartin had been offered immunity.
In holding that it was premature for the Court to prohibit the Tribunal from hearing the evidence. The previous conduct of the Tribunal and in particular the consistent failure of the Tribunal to meaningfully test Mr. Gilmartin's credibility in the past were more than a sufficient basis for prohibiting the Tribunal from further investigating or making any finding in relation to matters affecting the applicants.
In failing to give sufficient or any weight to the manner and number of times in which Mr. Gilmartin met the Tribunal or their legal advisors and in placing a benign interpretation on such conduct.
In holding that Mr. Gilmartin was not given any special or privileged status by the Tribunal and that there was no inequality of treatment.
In holding that the decision of the courts in the [earlier O'Callaghan case] meant that the applicants' concerns about the fairness of the procedures in these proceedings had been addressed.
In accepting and treating as relevant the averments on behalf of the Tribunal that they were open-minded and in failing to test those averments either at all or adequately against the perception that actual conduct and pronouncements of the Tribunal and their legal advisors gave rise to in the mind of the reasonable observer.
Having regard to the proved and admitted facts in drawing an incorrect inference as to the perception of the reasonable person as to whether there was a real possibility that the Tribunal was biased against the applicants.
In mischaracterising the objective bias case being made by the applicants simply as one to the effect that a reasonable observer would conclude that there was a real possibility that the Tribunal wished to vindicate Mr. Gilmartin at the expense of the applicants and/or doing so on the basis of an incorrect paraphrasing of a dictum of Barron J. in the Orange Case.
In failing to apply either at all or properly the principle that any doubt on the question of an appearance of bias should be resolved in favour of the applicants.
In particular, in failing to apply either at all or properly the principle that any doubt on the question of an appearance of bias should be resolved in favour of the applicants the Tribunal's letter dated 26th September 2005.
In characterising the applicant's case in relation to the Tribunal's letter dated 26th September 2005 as "worrying over the misuse of infelicitous use of language" and in failing to interpret the letter in the light of the previous conduct of the Tribunal or to determine the effect of the contents of that letter on the perception of the reasonable observer.
In treating the issue of the rights of third parties to have such allegations as are made against them dealt with as soon as is possible as being relevant to the issue as to whether or not objective bias had been established by the appellants.
In holding that the doctrine of necessity would be an answer to an existence of objective bias and unfair procedures.
Issues on this appeal
While the earlier O'Callaghan case held that the applicants were entitled to the specified documents, it is now submitted by the applicants that the previous refusal of the Tribunal to disclose certain documents lays a foundation upon which may be established unfairness, partiality and/or bias on behalf of the Tribunal against the applicants.
There were two fundamental issues raised on this appeal, as they were in the High Court, being:
allegations of unfair procedures and inequality of treatment, and
In making these submissions the applicants have referred to a number of specific matters, which it is claimed are examples of the unfairness and bias. These
were considered by the High Court, and in the circumstances of the proceedings, I find it necessary to refer to them also.
Extensive written submissions were filed on behalf of the applicants. Mr. Paul Gallagher S.C., counsel for the applicants, in oral submissions made two central claims; (1) that the documents and related facts demonstrate that the applicants have not been treated fairly by the Tribunal with regard to the module Quarryvale I and have been denied fair procedures. Further, that they have been treated in an unequal manner compared to Mr. Gilmartin, the person who made very serious allegations against them. (2) He contended that there is an appearance of bias on the part of the Tribunal and that the approach by the Tribunal gives rise to a reasonable suspicion of bias.
While relying on the entirety of the written submissions, counsel for the applicants referred to seven specific examples which, it was submitted, illustrated the applicants' claim and which put their case at its height. I shall return to these matters later in the judgment.
Extensive written submissions were also filed on behalf of the Tribunal and oral submissions were made by counsel. The claims made by the applicants were denied in detail.
I shall refer to specific submissions where relevant in the course of the judgment.
The Tribunal was established by resolution of Dáil Éireann and appointed by instrument of the Minister for the Environment and Local Government in November, 1997. The terms of reference were set out in 1997 and amended in 1998. The composition of the Tribunal was altered to three members and one reserve by statutory instrument in 2002. The Tribunal as it is now comprised has been in existence since July 2003. The three named respondents are members of the Tribunal and are judges of the Circuit Court. The Tribunal is, pursuant to the terms of reference, mandated to inquire into certain matters of urgent public importance. The Tribunal is an inquisitorial body, to inquire into the matters set out in the terms of reference. While the Tribunal is not a court of law, the members are judges of the Circuit Court.
The Tribunal has formulated its own procedure. The inquisitorial stage of the inquiry is directed toward the gathering of information to enable a decision to be made as to whether the matter merits a public inquiry. Thereafter there may be a public inquiry on a matter. As to the ultimate decision of the Tribunal, the Tribunal has ruled that it would sit in public hearings and hear evidence as to the issues; that the ultimate decision of the Tribunal will be based on the evidence in the public inquiry stage; that information from the private inquiry stage will form no basis for a decision of the Tribunal.
Policy, procedures and rulings of the Tribunal as to disclosure
The terms of reference did not set out procedures, except in a broad principle. The Terms of Reference state:
The Tribunal has developed its own procedures and policies, which include the preliminary investigation stage and the subsequent public inquiry.
The procedures of the Tribunal as an inquisitorial body were described in the affidavit of Susan Gilvarry, sworn on the 23rd day of January, 2006, as follows:-
The Tribunal has made rulings as to its procedures. I shall cite several to show the approach adopted by the Tribunal as to the issue of confidentiality and as to disclosure of public documents for a public hearing. It must be noted that these rulings were made prior to the decision in the earlier O'Callaghan case, in which case the Tribunal was held to be in error in its decision as to confidentiality, so the precise ruling on confidentially is not in itself in issue. What is in issue is whether the rulings assist the applicants' case.
In the opening statement the then Chairman of the Tribunal, before hearing applications for representation, addressed issues of procedure, the investigative stage, confidentiality and disclosure of documents. The points made were:-
On 13th January, 1999 at 2.15 p.m. the Chairman stated:-
This Tribunal in the course of its investigation has received in confidence a considerable volume of material. As with all Tribunals, material is provided on the basis that its confidentiality will be maintained. It is only when a particular document has been found by me to be relevant to an issue before me that it is circularised to persons other than the source from which the document emanated. The confidentiality of the documents, which are deemed not to be relevant to the issues before the Tribunal, remains.
On 14th February, 2000, having referred to some legal authorities, the Chairman stated:-
In summary the functions and duties of the Tribunal are to inquire, to endeavour to seek out the truth and report to the Oireachtas on the matters referred in the terms of reference. No party or person comes before the Tribunal as an accused person, in other words, no person or party is on trial before the Tribunal and no person or party can be found guilty of a criminal offence by the Tribunal. Finally, the Tribunal is inquisitional in nature unlike a court of law.
As to the general organisation and representation, the Chairman described the process, which included the following:-
At the outset, it was decided to send detailed questionnaires to serving and former members of Dublin County Council, Dublin Corporation, Dáil Eireann and Seanad Eireann, members and employees, past and present, of An Bord Pleanála and Local Government Officials in an effort to elicit relevant information. 406 questionnaires were sent out to past and present members of Dáil Eireann and Seanad Eireann of which 390 were returned completed. 200 questionnaires were sent out to past and present members of the relevant Dublin Local Authorities of which 175 were returned completed. 138 questionnaires were sent out to employees and past and present members of An Bord Pleanála of which 135 were returned completed. 514 questionnaires were sent out to Local Authority officials of the various Dublin Local Authorities of which 422 were returned completed.
Following evaluation of the questionnaires, a large number of potential witnesses were identified. To-date, more than 210 persons have been interviewed by the Tribunal in this regard and hundreds more have been spoken to or communicated with by members of the legal team. Following the amendment of the Terms of Reference, a further large number of interviews were conducted in relation to matters arising under paragraphs A.5 and E.1 and E.2 of the Terms of Reference as amended. Interviews in relation to matters arising from the Terms of Reference are continuing.
In addition to issuing the questionnaires and analysing the replies received, the Tribunal sought and obtained files and records from planning authorities and others and sought and obtained copies of Garda files on earlier investigations carried out by the Gardai into allegations of corruption in the planning process. The Tribunal sought to interview persons who were believed to be in possession of information which might be of assistance to the Tribunal and this interview process is continuing.
A passage from the 1944 Report of the Tribunal of Inquiry into Dealings in Great Southern Railways Stocks is equally applicable to this Tribunal:-
The huge amount of documentation, and the method by which the Tribunal was dealing with this in a fast computer-based retrieval system was described thus:-
The Tribunal has received a huge number of documents and files from various planning authorities, government departments and financial institutions within the State. In some cases, the Tribunal has received documentation from financial institutions outside the State, where the consent of the relevant parties has been forthcoming. This documentation has had to be considered and analysed in detail by the Tribunal as part of its confidential preliminary inquiries in private and this process is continuing.
Due to the huge volume of documentation involved, the Tribunal was obliged to develop a fast computer-based document retrieval system. The document retrieval system, designed and developed by this Tribunal, has since been used by the Dáil Public Accounts Committee, is at present being used by the Lindsay Inquiry and by the Inquiry being conducted by Inspectors appointed by the High Court to inquire into Ansbacher (Cayman) Limited. The Tribunal’s work in relation to the document retrieval system has been publicly acknowledged by the Dáil Public Accounts Committee.
The complexity of dealing with applications for disclosure, and the Tribunal's response, may be illustrated in the rulings of the 20th November, 2002 and the 4th of February, 2003.
On the 24th March, 2004, in relation to Mr. Tom Gilmartin, the Tribunal made a ruling:-
I will now read the ruling of the Tribunal. This ruling is in response to requests made by a number of parties to whom representation has been granted that the Tribunal should release to them all information, statements or other documents or information provided to the Tribunal by Mr. Gilmartin and the same be circulated to the interested parties so as to enable Mr. Gilmartin to be cross-examined in relation thereto. In accordance with its established procedure, the Tribunal has in advance of Mr. Gilmartin's evidence already circulated to such parties Mr. Gilmartin's narrative statement of the facts upon which the Tribunal has determined that a public hearing is merited.
In addition to this statement, the Tribunal has further documentation which includes details of communications between Mr. Gilmartin and his solicitors and members of the Tribunal's team. In addition, the Tribunal has been provided with a document prepared following a question and answer interview between Mr. Noel Smyth, a solicitor then acting on behalf of Mr. Gilmartin, and Mr. Gilmartin. This document was provided to the Tribunal by Mr. Smyth at the request of Mr. Gilmartin in 1998.
The Tribunal legal team was neither present at this interview nor instrumental in the preparation of the record of such interview. The document was provided to the Tribunal upon express terms as to confidentiality which would be set out in detail later in this ruling.
The general issue of the confidentiality of documentation and information furnished to the Tribunal in the course of its inquiries has already been ruled upon and explained in detail in the Tribunal’s initial ruling on confidentiality delivered at the commencement of the Tribunal on the 14th of January 1998 and has been elaborated upon in subsequent rulings of the Tribunal, including those delivered on the 20th of January 1999, the 20th of November 2002, and the 4th of February 2003.
The Tribunal recognises that it has a duty of confidentiality to persons from whom it has received documents or information in confidence. Documents will only be circulated where the Tribunal has determined that they are relevant, admissible and probative. Save in exceptional circumstances, the Tribunal will not circulate documents or information where such documents or information was provided to the Tribunal upon specific terms or conditions or limitations imposed or agreed at the time that the documentation or information was furnished to the Tribunal.
The Tribunal remains at all times the appropriate authority to decide what documentation is relevant, admissible and/or probative in its proceedings, and in particular to decide whether any exceptional circumstances exist such as to warrant a departure from the established rules of confidentiality in any particular instance.
The documents now sought to be considered fall into two categories. Firstly, those prepared in the course of the private investigative stage of the inquiry by members of the Tribunal’s legal team following interview or contact with Mr. Gilmartin and, secondly, the documents provided by Mr. Gilmartin’s then solicitor, Mr. Smyth, to the Tribunal.
The Tribunal has determined that the first category of documents remain confidential to the Tribunal and have ruled that they will not b circulated. The Tribunal is satisfied that there are no exceptional circumstances in existence which merit a departure form the Tribunal’s established procedure.
In relation to the second category of documents, the Tribunal notes that this documentation was provided to the Tribunal upon specific terms set out by Mr. Gilmartin’s then solicitor and are quoted verbatim as follows:
The Tribunal is satisfied, having reviewed the circumstances in which this second category of documentation was furnished to the Tribunal, that it is subject to specific assurances on confidentiality and nondisclosure by the Tribunal. The Tribunal does not at this time consider that there are circumstances which merit or which allow for a departure from the terms upon which the document was provided to the Tribunal and, accordingly, refuses the application for its circulation.
The Tribunal is mindful of the fact that it is essential for the efficacy of the Tribunal’s investigation that it has the capacity to treat documentation provided to it in confidence on a strictly confidential basis. Without such capacity, persons providing information to the Tribunal would undoubtedly be dissuaded from providing information which is necessary to the Tribunal to carry out its task. The conduct of private interviews by members of the Tribunal’s legal team, with potential witnesses, and the receipt of information and documentation of a strictly confidential basis are part and parcel of the investigative and information-gathering process with which the Tribunal is charged. It is only in exceptional circumstances that the Tribunal will consider departing from it established procedure.
In an Explanatory Memorandum of January, 2004, referring to the then pending phase of public sittings of the Tribunal concerning the business dealings of Mr. Tom Gilmartin between 1987-1990, taking place under paragraph A.5 of the Terms of Reference of the Tribunal, as amended, to be known as "Arlington/Quarryvale", the Tribunal made a ruling as to the procedure:-
The public inquiry involves the taking of oral evidence of witness on oath and, in the course thereof, the examination of relevant documents obtained by the Tribunal. The Tribunal conducts its inquiries in "modules" relating to specific parcels of lands or other specific subjects.
The following steps are involved:-
The foregoing is not intended to be a comprehensive guide, but rather to outline what takes place. If you have any queries in relation to the foregoing, please do not hesitate to contact me or another member of the legal team.
This is only a small example of many rulings and procedures, established by the Tribunal. They are not illustrated to consider whether they are wrong or right. Rather they are described to show the Tribunal's general approach. Having considered them carefully I am satisfied that they illustrate that:-
Care and consideration was taken in the drafting of the rules.
The different stages of the Tribunal are reflected in the rulings.
The investigative stage, so different from any proceedings in a court of law, is addressed carefully. It is at this stage the Tribunal itself investigates whether a public hearing/inquiry is merited.
The issue of confidentiality was addressed. These rulings were made before the earlier O'Callaghan case which found that the Tribunal had erred. But these rulings are noted not for their inherent ruling but for the approach of the Tribunal to the applicants, to consider whether there is any pattern of bias, partiality or unfairness.
The vast volume of documentation is referred to and the methods for dealing with it addressed.
The issue of the credibility of witnesses is addressed and it is repeatedly stated by the Tribunal that no decision on the credibility of a witness is to be reached prior to the conclusion of the public hearing.
A policy of confidentiality was established.
A policy of disclosure was established and applied.
A policy of assistance was established at the commencement of the Tribunal. I shall return to this issue later also.
On this aspect of the workings of the Tribunal, I am satisfied that the general rules and procedures do not indicate any bias, inequality, partiality or unfairness on behalf of the Tribunal against the applicants or in favour of Mr. Tom Gilmartin.
Stages of a Tribunal
A tribunal works by way of a number of different stages. The very nature and process of its work distinguishes it from a court of law. First, having been established, it has an investigative stage. This, of its very nature, is intrusive on people's rights and is only required by the Dáil because of the deemed necessity of establishing such a tribunal. This necessity was described in the report of the Royal Commission on Tribunals of Inquiry, 1966, in the United Kingdom under the Chairmanship of Salmon L.J., hereinafter referred to as "the Salmon Report" in paragraph 27 and 28 as follows:-
The stages of the work of a tribunal was analysed by Hamilton C.J. in Haughey v Moriarty  3 I.R. 1 at p. 54 where, having referred to the Salmon Report, and the specific paragraphs quoted above, he stated:
Those considerations are also applicable in this jurisdiction. There are various models which may be availed of by the Oireachtas and the executive in the form of commissions or committees, in the latter case, either within the Oireachtas or external to it, for the purpose of advising them as to the desirability of legislation on particular topics. The essential purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of urgent public importance which it is to inquire into and report those findings to parliament or the relevant minister.
Hamilton C.J. described the stages of a tribunal, at p. 74, as follows:-
A tribunal of inquiry of this nature involves the following stages:
At issue in this case are matters arising in stages 1, 2 and 3. The matters raised were set out in detail in paragraph 5(a) to (y) of the grounds for the judicial review.
I regard it of significance that this judicial review relates to events rooted in the investigative stage of the inquiry by the Tribunal. At such a stage of the work of a Tribunal the Tribunal is conducting its inquiry into information in private. As Hamilton C.J. stated in Haughey v Moriarty  3 I.R. 1 at pp. 74-75:-
Neither can it be submitted that the public or any portion thereof are entitled to be present at the preliminary investigation of the evidence for the purposes of ascertaining whether it is relevant or not.
If these inquiries in this investigation were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby...
The Court is satisfied that the Tribunal was entitled to conduct this preliminary investigation in private for the purpose of ascertaining what evidence was relevant and to enable the Tribunal in due course to serve copies of such evidence on the plaintiffs which it is obliged to do in order to enable them to exercise their constitutional right to be present at the hearing of the Tribunal where such witnesses will give evidence on oath and be liable to cross-examination.
In commenting on this statement the Law Reform Commission's Consultation Paper on Public Inquiries Including Tribunals of Inquiry (March 2003) noted:-
It seems that the word "evidence" was not used in a particularly technical sense in this passage. This is unsurprising since it formed part of a judgment in which the different issue of the entitlement of persons to be present at proceedings of a tribunal was being considered. There is no indication that the Supreme Court intended to reject any distinction between "information" and "evidence". The Commission suggest that in the first three stages "information" could be substituted for "evidence" without doing any violence to the passage.
I am satisfied that this is the correct analysis and that in the first three stages of the work of a tribunal it is considering information to enable it to proceed to the giving of evidence at a later stage.
It is a matter for the Tribunal as to whether to proceed to public hearing. In Bailey v Flood, (Unreported, High Court, 6th March, 2000) Morris P. considered the test, to be applied in reviewing a decision of a Tribunal as to whether evidence was relevant and whether it should be heard in public, as being whether the decision plainly and unambiguously flies in the fact of fundamental reason and common sense: State (Keegan) v Stardust Victims Compensation Tribunal  1 I.R. 642; O'Keefe v An Bord Pleanála  1 I.R.39. At p. 27, in Bailey Morris P. stated:-
The parties have proposed and I am prepared to accept this as the correct statement of the test that the Court ought to apply when reviewing a decision that impinges on constitutionally guaranteed rights. However, it must at all time be borne in mind that the jurisdiction of this Court is limited to the review of the decision. The fact that the constitutional rights of a person affected by the decision are implicated is not a licence for the Court to stand in the shoes of the decision-maker and to speculate as to whether or not it would have come to the same conclusion. The function of the High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal, not whether or not is was correct. The freedom to exercise a discretion necessarily entails the freedom to get it wrong; this does not make the decision unlawful. Consideration of the alternative position can only confirm this view. The effective administration of a tribunal of inquiry would be impossible if it were compelled at every turn to justify its actions to the High Court. The legislature has entrusted a broad measure of discretion to such tribunals, including the discretion to decide how the inquiry will proceed and what evidence will be admitted, and it is no part of the duty of this Court to whittle down that discretion, with the inevitable deleterious effects that would have the effective discharge of the important public tasks with which tribunals of inquiry are burdened.
I am satisfied that this is the correct approach, and adopt and apply it where relevant to the current case. The Court does not stand in the shoes of the decision maker and speculate if it would make the same decision. The jurisdiction of the Court is limited to review the process of decision making. The Oireachtas has given to the Tribunal a broad discretion.
The fundamental legal issues before the Court are bias and unfair procedures. There is a degree of overlap on the facts of the case. It was part of the applicants' case that the decisions of the Tribunal refusing to disclose matters (now disclosed as a consequence of the earlier O'Callaghan case) indicated decisions on relevance or consistency from which a reasonable person would believe that the Tribunal had decided that Mr. Tom Gilmartin was a credible witness and Mr. Owen O'Callaghan was not, and that this established objective bias, the appearance of bias.
Incomplete decision making process
It is very relevant that the decision making process of the Tribunal is not yet complete, that it is still at the investigative stage and the stage of public hearings. At issue are matters relevant to the Quarryvale I Module, which has not yet completed public hearings. As a consequence of this Court's decision in the earlier O'Callaghan case, the applicants have documents which they may now use in this module, especially for the cross-examination of Mr. Tom Gilmartin. Any analysis of the situation has to be on the basis that the Tribunal is still at this stage of the process and that the entirety of the process should be considered in determining the principles of law in issue. In Ainsworth v Criminal Justice Commission (1992) 175 C.L.R. 564, Mason C.J. stated:
It is not in doubt that where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if the decision-making process viewed in its entirety entrails procedural fairness.
I adopt and apply this as an appropriate approach and shall return to its application to the circumstances of this case at a later stage in the judgment.
Unfair, partial and bias
While the applicants in the written proceedings made submissions as to allegedly unfair, unequal, partial and biased decisions, in essence the claim is one of objective bias. On this appeal it was not alleged that there was subjective, or actual, bias by the Tribunal, although counsel for the Tribunal did suggest that there was a claim of actual bias 'bubbling' under the surface. What is alleged on behalf of the applicants is objective bias, and in fact it is the specific bias of prejudgment. This is the claim of unfair procedures, in that it is submitted that by its previous decisions the Tribunal has favoured Mr. Tom Gilmartin and that the applicants no longer consider that they will obtain fair procedures from the Tribunal. From whatever aspect one considers the submissions, the nub of the claim is one of objective bias by the Tribunal, of prejudgment.
The law on objective bias has been well established in Ireland. In O'Neill v Beaumont Hospital Board  I.L.R.M. 419 at p. 438 Finlay C.J. stated:
The bias alleged in this case is a bias consisting of pre-judgment. The plaintiff's case, in very brief summary, is that a consideration of the question of the making of the decision as to the continuance or termination of his service as a consultant in the hospital cannot fairly be carried out by reason of the fact that the persons who should carry it out have pre-judged his case. There is no suggestion of personal animosity, personal gain or personal self-interest in any member of the board as a form of bias. The sole form of bias alleged is pre-judgment ....
I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different from the standard which was applied in the High court, is the question as to whether a person in the position of the plaintiff, Mr. O'Neill, in this case who was a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of the pre-judgment of the issues which are involved in that by the members of the board. That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description.
That standard was applied in Dublin Wellwoman Centre Ltd. v Ireland  1 I.L.R.M. 408 where I stated at p. 420:
That standard is applicable to this case. In the High Court there was no suggestion of personal favour or personal interest, i.e. subjective bias of the learned High Court judge. The actual state of mind of the judge was and is not in issue. What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge on issues which are at the kernel of this case.
The test applies the view of the reasonable person. It is an objective test. It refers to a person with knowledge of all the relevant circumstances of the case. An assumption may be made that a party is such a reasonable person, however, the test does not refer to the subjective view of a party, or to a party who is a reasonable person. The test refers to the objective view of a reasonable person. This is clear from the famous dictum of Lord Hewart C.J. in R. v Sussex Justices, ex parte McCarthy  1 K.B. 256 at p. 259:
.... a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.
The appearance of what is being done is critical. It is essential that justice be seen to be done. Therefore, the test refers to a reasonable apprehension by a reasonable person, who has knowledge of all the facts, who sees what is being done. It is this reasonable person's objective view which is the test. This is the criterion which is required to be applied. It is not the apprehension of a party.
At one stage it appeared that a case might be advanced by the applicants on the basis of previous erroneous decisions made by the Tribunal. However, quite correctly, this argument was not advanced by counsel at the oral hearing. For, a series of erroneous decisions is not a basis upon which to ground bias. Such a claim was dismissed in Orange v Director of Telecoms  4 I.R. 159, where Geoghegan J. stated at p. 251:
It seems clear from the case law in Ireland and England that an allegation of bias must be made on foot of circumstances outside the actual decisions made in the case itself. I would accept that in a situation where there was an arguable case of bias based on traditional proofs the added factor of cumulative wrong decisions all one way might be tantamount to corroboration of alleged bias and be a relevant factor in that restricted sense in the proving of bias. But of itself and by itself it can never be evidence of bias.
In Spin Communication Limited v I.R.T.C.  4 I.R. 411 Murray J., as he then was, referred to the distinction to be drawn between the existence of factors external to the decision making process and the manner in which that process is conducted. He stated that external factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. Referring to the judgments of Keane C.J. and Barron J. in Orange he stated at p. 433:
My understanding of the judgments of Keane C.J. and Barron J. is that should a decision-maker pursue a line of enquiry concerning a matter relevant to the decision to be made in a tendentious or unfair manner, this does not in itself permit, as a matter of law, the decision to be impugned on the grounds of bias but rather it falls to be reviewed in accordance with the requirements of fair procedures or natural justice. This is because the ‘factor’ involved is internal and not external or extraneous to the decision making process.
Thus erroneous decisions made by the Tribunal previously, in not disclosing the documents, the subject of the earlier O'Callaghan case, may not be a basis for a successful claim of objective bias.
Thus, expressly referring to this line of case law, the test to be applied in determining whether there is objective bias is whether a reasonable person, with full knowledge of the circumstances, would consider that there are external factors which would cause the decision maker to make a particular decision, or would inhibit him from making a decision impartially, as would give rise to a reasonable apprehension of bias.
In this case the essence of the applicants' submissions is that there has been prejudgment by the Tribunal. The test is similar to that set out above for objective bias, it is a particular aspect of objective bias. In this case it was submitted that the (erroneous) decisions indicate a decision on credibility, that it is a case of prejudgment. That in the circumstances a reasonable person would have a reasonable apprehension that the Tribunal had decided the issue of the credibility of Mr. Tom Gilmartin and Mr. Owen O'Callaghan in favour of the credibility of Mr. Tom Gilmartin.
In addition to the law previously cited, and relevant, two further cases may be noted. Thus, in R. v Watson, ex parte Armstrong,  136 CLR 248 where a judge had stated that he would not accept the evidence of the parties without corroboration, it was held that the judge was not entitled to form a settled view of the credibility of witnesses but that a reasonable person observing would have considered that he had done so. State (Hegarty) v Winters  I.R. 320 was also cited to the Court. In that case an arbitrator visited the lands he was assessing with a witness of one party but not of the other. This Court determined that the fundamental rule that not only must justice be done, but that it must be seen to be done, had been broken and the award was not allowed to stand.
Burden of proof
The burden of proof arises in the framework of the application for judicial review by the applicants. Counsel for the Tribunal submitted that the Court should ask the question, of each of the seven specific examples submitted:-
Is this a decision by the Tribunal which adjudicated upon the credibility of Mr. Tom Gilmartin?
Is it a decision in favour of Mr. Tom Gilmartin's credibility and contrary to Mr. Owen O'Callaghan?
Even if it is such a decision, is there some extra ingredient which would cause a reasonable man to believe that the Tribunal had closed its mind on credibility?
It was submitted that these are the criteria by which to determine whether there were circumstances of a reasonable apprehension of bias or prejudgment by the Tribunal. Whether the burden needs to be quite so pedantically stated and applied, there is no doubt but that the burden rests upon the applicants to prove their case on the balance of probabilities. They carry the onus of proof. The terms of the legal test to be applied has been stated previously.
This appeal arises within the framework of an application for judicial review. The procedure by way of judicial review is not an appeal on the facts and law. In this case the applicants have sought an order of prohibition, prohibiting the Tribunal from proceeding with any further investigating or making any findings in relation to the applicants, and they have also sought an order of certiorari quashing the Tribunal's decision refusing to desist from further investigating the applicants.
The nature of the remedy of certiorari was described by O'Higgins C.J. in State (Abenglen Properties Ltd) v Dublin Corporation  I.R. 381 at 392, as follows:-
Today it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it a court or otherwise), having legal authority to affect their rights and having a duty to act judicially in accordance with the law and the Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and extension, however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not available to correct errors or to review decisions or to make the High Court a court of appeal from the decisions complained of. In addition it remains a discretionary remedy.
This describes clearly the necessary approach of a court. The Court is asked to supervise decisions of the Tribunal and to control any of its actions in excess of jurisdiction. This process is not a procedure by which to correct errors, nor is it a court of appeal. Notably, it is also a discretionary remedy.
The learned trial judge made some general oberservations on the nature of judicial review:-
Judicial review is not an appeal process (O'Keeffe v An Bord Pleanála  1 I.R. 39 at 71).
The Tribunal has been found in error in [the earlier O'Callaghan case]; the policy which was adopted by the Tribunal long predated the commencement of hearings involving Mr. Gilmartin or Mr. O'Callaghan: It had been universally applied to everyone prior to the earlier O'Callaghan case.
It is inappropriate for the court to examine in minute detail a large number of issues which relate to factual events or to carry out a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in relation to particular documents or events:-
We do no service to the public in general if we subject every decision of every administrative Tribunal to minute analysis.
(per O'Flaherty J. in Faulkner v Minister for Industry and Commerce)
Procedural decisions of the Tribunal are reviewable – and a fortiori post the earlier O'Callaghan case must be so.
The individual decisions challenged must be examined only to the extent necessary to determine whether such indicates a particular frame of mind by the Tribunal.
A court can strike down a decision of a Tribunal which is in error – it does not substitute its own view for that of the decision maker, even if constitutional rights are affected –
It is not a licence for the courts to stand in the shoes of the decision maker.
(per Morris P. in Bailey v Flood  IECH 169).
A procedural or policy error on the part of the Tribunal which constituted a failure or infringed In re Haughey rights (in according fair procedures and constitutional justice) does not ipso facto amount to bias on the part of the Tribunal or any of its members.
I would adopt and apply these principles to the appeal.
Seven specific examples
While the pleadings refer to over 50 documents, now disclosed to the applicants as a consequence of the earlier O'Callaghan case, which it is alleged illustrate the applicants' claim of unfairness, inequality, partiality and/or bias, counsel for the applicants did not ask the Court to make a microscopic examination of each of such matters. Seven matters were advanced and submitted to be the height of the applicants' case and to show unfairness, partiality and bias. It was submitted that a reasonable person would consider that the credibility of Mr. Tom Gilmartin and the applicants, but essentially Mr. Owen O'Callaghan, had been prejudged and that to proceed further with the work of the Tribunal in relation to the applicants would be unfair and biased.
(i) Buswell's Hotel and Councillor O'Hanrahan "Did he tap you" Judge Keys view
On behalf of the applicants it was submitted that in evidence Mr. Tom Gilmartin had testified to the Tribunal that he attended a meeting with Councillor Finbarr Hanrahan at Buswells Hotel in Dublin on 28th December, 1988. He said that when he entered he noticed Mr. Owen O'Callaghan, Mr. John Deane and Mr. Liam Lawlor present at the bar, with Mr. O'Hanrahan sitting alone at another part of the bar. He said that Mr. O'Hanrahan requested £100,000 from him and that when he, Mr. Tom Gilmartin, left Buswells he was followed out by Mr. Owen O'Callaghan, who asked him "Did he tap you?"
Mr. Owen O'Callaghan's evidence was that he was indeed present as was Mr. John Deane – but that Mr. Liam Lawlor was not present. He said that he was asked to be present by Mr. Tom Gilmartin who asked him to point out Mr. Finbarr Hanrahan. Mr. Owen O'Callaghan said that he never said "Did he tap you?"
When the case was opened to the Tribunal, John Gallagher SC told the Tribunal that Mr. Tom Gilmartin would testify that following this meeting in "late December 1988" and while he was on his way out of the bar, Mr. Owen O'Callaghan said to him, "Did he tap you?"
Mr. Tom Gilmartin, for his part, testified that as he was walking out, Mr. Owen O'Callaghan turned and said to him "Did he tap you?" to which he replied "What do you think?" and that he then walked up the stairs and out of the building. He was specifically invited by counsel by the Tribunal to say what he understood by the words "Did he tap you?", to which he answered "I understood that as if he had tapped me for money, asked me for money".
He was cross-examined on these allegations and it was put to him that this was a word that Mr. Owen O'Callaghan would not use. At one stage an objection was made to Mr. Tom Gilmartin being pressed in cross-examination. It was submitted that the Tribunal's interventions at this stage demonstrated a very keen interest on the part of the Tribunal as to the detail of what happened, including what happened after the meeting, and suggested that the Tribunal regarded this level of detail as important.
During that objection, counsel for Mr. Owen O'Callaghan pointed out that Mr. Tom Gilmartin's credibility was being challenged on the basis of different versions of this alleged event given at different times.
It was submitted that during that intervention, Judge Keys commented "I have no doubt your client knows Mr. Hanrahan quite well". However, the Tribunal pointed out, in reply, that the words "Does he?" followed, but did not come out on the transcript. Counsel for Mr. Owen O'Callaghan pointed out in reply "He didn't know him quite well at the time but he knew him to see at the time". Judge Keys followed this up and asked counsel " "Well, did he check out the story with Mr. Hanrahan at a later stage?" to which counsel replied "I don't think so". Judge Keys observed "He didn't. That's somewhat surprising".
On behalf of Mr. Owen O'Callaghan it was stated that both he and Mr. John Deane were concerned about the remark .... as indicating a certain view that had already been formed by at least one member of the Tribunal of Mr. Owen O'Callaghan and his alleged connections with various Councillors at a very early stage in the Tribunal's inquiry and before he had even testified. He stated that they were inclined to pass it off as an isolated remark to which it might be unwise to attach too much significance, but that it now appears to them, from the material now disclosed by the Tribunal, that apart from the additional material that the Tribunal had an abundance of information emanating from Mr. Tom Gilmartin which would reasonably cause Tribunal Members to form that view. Mr. Owen O'Callaghan also deposed that it seemed clear that Judge Keys appeared to attribute significance to the attribution of the words "Did he tap you?" to Mr. Owen O'Callaghan and appeared to express pre-judgment of Mr. Owen O'Callaghan's state of knowledge of Councillor O'Hanrahan. The Chairman commented that counsel for Mr. Owen O'Callaghan was, in particular, challenging the suggestion that Mr. Owen O'Callaghan used the words "Did he tap you?". The Chairman showed interest in the use of those words by asking questions to Mr. Tom Gilmartin.
In direct testimony, Mr. John Deane was asked whether or not Mr. Tom Gilmartin had asked that question. He said it did not happen. Mr. Owen O'Callaghan was asked about it and denied it also.
On behalf of the applicants it was submitted that the documents now produced show that Mr. Tom Gilmartin had spoken about this meeting on 30th September, 1998, at a meeting in which John Gallagher SC, Pat Hanratty SC and Des O'Neill BL were present. At that meeting Mr. Tom Gilmartin was noted as saying:-
I met O'Hanrahan in Buswells Hotel one day in January 1989 at 4.30pm. I met Seamus Brennan on the following day. On Wednesday 29th January 1989, I met O'Hanrahan. O'Callaghan was standing at the bar with Ambrose Kelly. I was told I had to meet Councillors and this was arranged.
It was submitted that this is entirely inconsistent with the evidence of Mr. Tom Gilmartin to the Tribunal. In his evidence the meeting was allegedly held on 28th December, 1988. Much cross-examination of various parties (with attendant costs) concerned the possibility of them being present over the Christmas period for such a meeting. Indeed, Mr. Tom Gilmartin had produced to the Tribunal a diary entry showing an appointment with Mr. O'Hanrahan on 28th December, 1988. The case had been open by John Gallagher SC on the basis that Mr. Gilmartin would tell the Tribunal that the meeting was "in late December 1988". When he examined him for the Tribunal, he referred in the question to the meeting taking place on a date "you believe on 28th December 1988". He then went on to lead the witness to the effect that the meeting (amongst others) was "on that date". In the course of his replies, Mr. Tom Gilmartin became adamant about the date of the meeting, "Absolutely, 100% certain. Mr. O'Callaghan demanded a meeting on 28th December".
It was pointed out that there is no reference to Mr. Liam Lawlor being at that meeting, and that there was no reference to an allegation that Mr. O'Hanrahan allegedly requested £100,000 from Tom Gilmartin at the meeting. More importantly, there is no reference to the uttering of the words "Did he tap you?"
Furthermore, it was submitted that the fact that Mr. Tom Gilmartin made this allegation for the first time in his statement of 25th May 2001, when he had a large number of opportunities to mention it during earlier discussions with the Tribunal, is clearly relevant to the credibility of the allegations.
It was submitted by counsel for the applicants that the attribution of the words "Did he tap you?" to Mr. Owen O'Callaghan, carries with it the clear inference that Mr. Owen O'Callaghan was well aware at the time that Councillors were seeking bribes and, if he was not aware that the purpose of the meeting with Mr. Tom Gilmartin was to solicit a bribe from him, that he was at the very least aware that it was likely to happen. It was submitted that the evidence was lead by Tribunal counsel for that purpose and that not only was it so lead, but that the Tribunal did not disclose Mr. Tom Gilmartin's earlier statement to the applicants.
It was submitted that the date of the meeting concerning certain persons and Mr. Finbarr Hanrahan in Buswell's Hotel was critical. That Mr. Tom Gilmartin had virtually no documents, except a diary. Mr. Owen O'Callaghan and Mr. Deane had denied that the meeting could possibly have taken place on that date. It was submitted that the later note of the meeting affects the status and evidential value of the diary. It was submitted that the failure to refer to this document and its content was a desire to protect the credibility of Mr. Tom Gilmartin by the Tribunal.
Mr. O'Callaghan deposed that:
It now appears that the Tribunal has reached a conclusion herein which is adverse to me and did so without any notice to me of this issue. The Tribunal states at paragraph 155 that it did not regard the existence of a difference in dates as significant. It appears to have reached this conclusion without proffering to me relevant information and appears to have omitted to consider the fact that the reason why the date is significant is that there is a substantial difference between the parties about the accounts of this meeting. Mr. Gilmartin is incorrect on this date then it has implications for the credibility of his subsequent account of the meeting and his testimony generally. The Tribunal has now determined that the existence of a difference in dates is not significant. This conclusion has been reached without affording me an opportunity to cross-examine Mr. Gilmartin on the documents which have recently been made available to me. I regard this conclusion as serious and fundamental and I do not understand how cross-examination at this stage would be of assistance to me in circumstances where the Tribunal has already formed this conclusion in relation to a very important matter.
The evidence was that the Tribunal took the view that as there was no dispute between the parties that the meeting had taken place the Tribunal did not regard the existence of a difference in dates as significant. Consequently, the Tribunal considered that the fact that Mr. Tom Gilmartin may have suggested that the meeting occurred at the different date to the one mentioned in his testimony did not constitute a significant or glaring inconsistency. In addition the Tribunal considered that some of the material in respect of this allegation was already in Mr. Gilmartin's statement of intended evidence. Furthermore, insofar as it appears to be alleged that the Tribunal somehow concealed from the applicants Mr. Tom Gilmartin's attribution of the words 'Did he tap you?' to Mr. O'Callaghan, those words are contained in paragraph 19 of Mr. Gilmartin's narrative statement. As regards the claim that the note did not contain all the information about which Mr. Tom Gilmartin subsequently gave evidence, and thus constituted a significant or glaring inconsistency, the Tribunal was of the view that on the face of the memorandum it appeared that there was no in-depth discussion of the Buswells incident at the meeting, that the meeting with Councillor Hanrahan was simply one of a number of meetings referred to in the note. The fact that the account of the meeting noted on the short memorandum did not contain all the information subsequently contained in Mr. Tom Gilmartin's testimony and his statement was not considered by the Tribunal to constitute a significant and glaring inconsistency. The Tribunal anticipated always that matters touched on by a witness in the investigative stage would be elaborated on in greater detail in the giving of oral evidence in the public inquiry when being examined by counsel. Further, Susan Gilvarry deposed that from Day 656, and Mr. O'Callaghan's statements circulated as part of the Quarryvale I brief, it was clear that the fact of a meeting between Mr. Tom Gilmartin and Mr. Finbarr Hanrahan at Buswell's Hotel was not in dispute nor was the fact that Mr. Owen O'Callaghan and Mr. Deane met Mr. Tom Gilmartin after the meeting, nor was there an issue that Mr. Owen O'Callaghan was told by Mr. Tom Gilmartin that a request had been made of him by Mr. Finbarr Hanrahan for the payment of £100,000.
Several issues arise on this specific example.
First, the intervention of Judge Keyes, was not advanced in oral argument. It had been pointed out by the Tribunal that certain words were in the form of a question, that the words "Does he?" followed the earlier statement, but did not come out on the transcript. I am satisfied that this was a close interrogation by a judge, one of the three members of the Tribunal. Even when taken with the issue of the redacted material, to which matter I shall return later in the judgment, I am satisfied that the applicants have not established any such situation as alleged or met the burden of proof required.
Secondly, the document now disclosed and in issue is a short note of a meeting between counsel for the Tribunal and Mr. Tom Gilmartin at an investigative stage of the process. A number of factors were raised on it: the date of the meeting is different, there is no reference to Mr. Liam Lawlor being there, there is no reference to the £100,000 allegedly requested of Mr. Tom Gilmartin, nor do the words 'Did he tap you' appear. It is not a statement for the Tribunal hearing.
Thirdly, this note had not been disclosed prior to the earlier O'Callaghan case. It was submitted that this exclusion illustrated bias on behalf of the Tribunal. However, it was only a short memo of a meeting, amongst many other meetings noted. It was not a full note, or intended to be. The fuller information is in the statements.
Fourthly, the Tribunal stated that it believed the date was not relevant, as the parties agreed a meeting had taken place. I do not have to adjudicate on this decision, as if it were an appeal, or to put myself in the place of the Tribunal. I note that this was a view held by the Tribunal. Perhaps the nature of a potential cross-examination had not been fully considered. However, I do not regard this initial decision, at the investigative stage, that the date and other factors were not relevant, was a final decision of the Tribunal as to the credibility of Mr. Tom Gilmartin or Mr. Owen O'Callaghan. The matter having been investigated it is now at public hearing.
Fifthly, arising out of the earlier O'Callaghan case, the applicants now have this short memo. As stated by the learned High Court judge, the Tribunal are obliged now to give the parties an opportunity to cross-examine Mr. Tom Gilmartin with the information gleaned from the note, especially with reference to the date of the meeting.
Sixthly, I do not regard the fact that a decision was taken, prior to a decision of this Court, erroneously, as to the issue of disclosure, was final as to issues of creditability. The issue of credibility is a matter quintessentially for the Tribunal – to be taken after the public hearings and not a matter for this Court.
The enquiry is now at public hearing where there will be the opportunity to cross-examine. After that the Tribunal will proceed to its final decision, for which it will have to give reasons.
I am satisfied that nothing raised on this specific example indicates that the Tribunal has made a final decision on issues such as the credibility of Mr. Tom Gilmartin or the applicants, or indicates any unfairness, bias or partiality.
(ii) Mr. Owen O'Callaghan and AIB
".... will prove fraud against O'Callaghan and the bank"
The second specific example submitted by counsel on behalf of the applicants was referred to as 'other disquieting documentation' which has been disclosed by the Tribunal. It is full of hearsay. It was submitted that Mr. Tom Gilmartin told his solicitor Mr. Noel Smyth, that Mr. Hanratty S.C. told him that Mr. Tom Gilmartin's case against the applicants was "that strong that they would have to open it again". It is alleged that senior counsel said "that they will prove fraud against O'Callaghan and the bank". Mr. Tom Gilmartin is stated to have said "that they will prove it. But I don’t know whether he is just saying it to get me talking".
In his affidavit Mr. Owen O'Callaghan deposed that this was withheld by the Tribunal and that it was a matter of great concern to him that there appears to have been prejudgment on the part of the Tribunal, or at least its counsel, in relation to his guilt or innocence. Mr. Owen O'Callaghan deposed that this was consistent with the subsequent conduct of the Tribunal, which he alleges to have been to avoid meeting him as if he were an accused, to conduct a prosecution against him in which it assembled evidence, and attempted to prove a case against him.
On behalf of the Tribunal this was denied. Mr. Pat Hanratty S.C. has stated that at no time did he say any such thing, or make any such statement.
In reply on behalf of the applicants, Mr. Owen O'Callaghan deposed that the Tribunal's denial raised very serious issues with regard to Mr. Tom Gilmartin's credibility. He deposed:-
I find it extraordinary that Mr. Gilmartin could be allowed say to a third party that the Tribunal informed him that they would prove fraud against me and the Bank and that this statement, which the Tribunal says was totally false, was not in the view of the Tribunal a matter which fundamentally went to his credibility.
Mr. Owen O'Callaghan also deposed that it indicated the close nature of the relationships between Mr. Tom Gilmartin and the Tribunal, that Mr. Tom Gilmartin felt he could make this allegation to third parties and that it would not impact on his relationship with the Tribunal or his credibility. He deposed:-
At the end of the day however, I and the other applicants are left in a position where we no not know whether this was said or not.
I would dismiss this specific example as making any case for the applicants.
The Tribunal is not a court of law, it is an inquiry moving through several stages, from investigation, to public hearings, to decision making. At issue is a statement alleged to have been made by one counsel of the Tribunal at the investigative stage. It is not a statement of the Tribunal or any member of the Tribunal. It is an allegation in the circuitous form made by the applicants, which is emphatically denied by the Tribunal.
It is a document which the Tribunal had erroneously not disclosed, but it is now disclosed as a consequence of the earlier O'Callaghan case. The document is available to the applicants and may be used in cross-examination of Mr. Tom Gilmartin. Thus the situation of the applicants has been remedied.
I am satisfied that this matter is not a basis upon which to ground a claim that the Tribunal is unfair, impartial or biased to the applicants so as to order it to stop its investigations. Concerns stated by a party are not proof of bias or prejudgment by a Tribunal. If that were so any party could stop any inquiry by voicing any concerns.
(iii) Option agreement
The third specific example referred to by counsel for the applicants related to an option agreement entered into by Mr. Tom Gilmartin and Mr. Owen O'Callaghan, regarding lands at Neilstown, Baldaddy, on 31st January, 1989.
When giving evidence to the Tribunal Mr. Tom Gilmartin was shown the option agreement, he had complained that the agreement did not contain all the terms actually agreed between him and Mr. Owen O'Callaghan. He said then that the agreement which he was shown was not the agreement which he had signed and that it had been falsified by Mr. Owen O'Callaghan and Mr. John Deane so as to alter its terms.
On behalf of the Tribunal it was deposed that Mr. Tom Gilmartin's testimony to the effect that the option agreement had been falsified took counsel for the Tribunal by surprise. The allegation that the agreement had been falsified emerged for the first time in the course of the cross-examination of Mr. Tom Gilmartin by counsel for Mr. Owen O'Callaghan. The Tribunal immediately sought to acquire further information regarding the option agreement. The Tribunal gave the applicants opportunity to put their denial of Mr. Gilmartin's allegation. Also, the Tribunal indicated that it intends to return to the issue of the option agreement in the course of the Quarryvale II Module, which the applicants were aware of prior to the commencement of these proceedings because of the brief circulated re Quarryvale II Module.
A document in issue is a letter dated February 4, 1991 discovered by Mr. Owen O'Callaghan to the Tribunal. Therefore, the first named applicant was clearly aware of Mr. Tom Gilmartin's allegation as in that letter: i.e. that Mr. Owen O'Callaghan and Mr. Tom Gilmartin had an agreement which was omitted in error from their executed agreement that the final payment would not be done until the approval of the planning.
During the course of the Tribunal hearing the Tribunal instructed Mr. Tom Gilmartin to respond to questions put by counsel for Mr. Owen O'Callaghan. Also, on Day 501 and Day 504, the Tribunal permitted the applicants to give evidence of the agreement. Mr. Owen O'Callaghan gave evidence that originally it was an unconditional contract, that the question of zoning and planning was never, never mentioned, it was an unconditional contract, that then there were telephone calls and a change was made in what had been agreed, he then agreed to give him an option on the lands. There was then the meeting on the 31st January, 1989 at which the option agreement was executed. Evidence was given of the meeting on the 31st January, 1989 in Seamus Maguire's office, with Mr. Tom Gilmartin, Mr. Owen O'Callaghan and Mr. John Deane present. Mr. Owen O'Callaghan has said that the option agreement was discussed, agreed, typed signed and witnessed. Mr. Tom Gilmartin has given contrary evidence.
There was also conflicting evidence as to the agreement being subject to planning permission for the Quarryvale site. There was evidence that the first payment of 1.35m was to be 31st January, 1990 and the second of 1.35m was to be on 31st January, 1991 or the date of rezoning if earlier.
Mr. Owen O'Callaghan, Mr. Seamus Maguire and Mr. John Keane have referred to the final discussions in Seamus Maguire's office, stating that Mr. Maguire advised Mr. Tom Gilmartin that the option agreement should not be signed by Mr. Tom Gilmartin unless it was subject to obtaining a planning permission for the Quarryvale site; that Mr. Tom Gilmartin had said that this was not a term of the agreement with Mr. Owen O'Callaghan and that he did not expect Mr. O'Callaghan to wait for the money, that he was prepared to take the risk.
In referring to Mr. Tom Gilmartin's evidence Mr. Owen O'Callaghan called it a shocking lie.
In other words there has been entirely contradictory evidence on the option agreement – expressed in strong language by both sides. The allegation by Mr. Tom Gilmartin of fraud was news to the Tribunal and to Mr. Owen O'Callaghan when Mr. Tom Gilmartin gave this oral evidence.
However, the Tribunal had documentation, which the applicants did not, and which is at the core of this specific example. It is the inconsistencies of these statements and their non disclosure which the applicants raise as one of their specific grounds illustrating what they submit is bias, partiality and unfairness by the Tribunal.
In his transcript statement with Noel Smyth, solicitor, a different story was told. Mr. Tom Gilmartin said
I left it to Seamus Maguire to complete the contract and we omitted, he drew up the contract and it was totally one sided including the final payment being subject to planning and when the zoning came up for this site to go in for the zoning ....
Also, in a memorandum of a meeting with Mr. Tom Gilmartin on 8th July, 1999 in Luton attended by 2 solicitors from Eugene F. Collins, solicitors for Mr. Tom Gilmartin, Mr. Gilmartin himself and Mr. Pat Hanratty S.C. there is an allegation that the contract drawn up by Mr. Seamus Maguire did not accurately reflect what was agreed:-
.... and through the negligence of Seamus Maguire, the contract which Mr. Gilmartin actually signed, provided that £1.35m should be paid in October, 1989and a further £1.35m on 31st January, 1990.
The essence of the applicants' complaint is that the Tribunal was aware, and they were not, it had documentation which suggested negligence on the part of Mr. Tom Gilmartin's solicitor and not deliberate falsification by the applicants. These documents refer to an agreement which is one sided and contain omissions by reason of the alleged negligence of Mr. Tom Gilmartin's solicitor. It was pointed out that on 24th March, 2004 the Tribunal ruled that there was no significant gross or glaring inconsistencies between the evidence of Mr. Tom Gilmartin and the confidential documents held by the Tribunal. At the hearing a very significant time had been taken by the Tribunal, sending for Mr. John Deane's files, and all the attendant publicity. The applicants also referred to Mr. Tom Gilmartin's statements in evidence that he was reasonably certain he had told Tribunal counsel, that he was reasonably sure he had told the Tribunal.
My conclusion on this specific example is multifold. First, this is an area of conflicting evidence to be determined by the Tribunal after a full hearing on the facts – which hearing has not yet taken place. Secondly, the two documents in issue are part of a wider frame of conflict – and the parties had known of that conflict for years. Thirdly, the complaint is that the documents were not available to assist the applicants in cross-examining Mr. Tom Gilmartin. However, it is clear from the extensive cross-examination of Mr. Tom Gilmartin by counsel for the applicants that they were not disadvantaged. Indeed, the papers contain 70 pages of close cross-examination of Mr. Tom Gilmartin by counsel for the applicants. Mr. Tom Gilmartin says initially that he told Mr. Hanratty and Mr. Gallagher (counsel for the Tribunal), or he is reasonably sure he did, but he may have omitted it from his statement, he stated that the copy agreement he had furnished was not the agreement. He is closely cross-examined and at Q764 answers:
As to his allegation that it is a falsified document – he repeated that it was not the agreement he signed – that it was falsified: he alleged that he told his then solicitors, but that they had not included it in the information given to the Tribunal. He continued to make allegations against Mr. Owen O'Callaghan. Counsel addressed the apparent changing story of Mr. Tom Gilmartin thoroughly. It is quite apparent from the cross-examination that there has been disagreement and conflict between Mr. Tom Gilmartin and Mr. Owen O'Callaghan for years. Fourthly, the applicants will have an opportunity now to cross-examine Mr. Tom Gilmartin again with the benefit of these documents. If anything it puts them in a better position – a double bite at the cherry. Fifthly, this conduct, and the decision on credibility, are matters for the Tribunal, in the future.
In all the circumstances I am satisfied that no reasonable person would infer bias from the Tribunal's ruling as to the two documents referred to in this specific example.
(iv) Mary Harney and knowledge of £5m.
During the course of a public hearing Mr. Tom Gilmartin was asked to list the persons he had told about his allegations that an unidentified individual had demanded £5m after an alleged meeting between Mr. Tom Gilmartin and the Ministers named. Mr. Tom Gilmartin did not refer to Ms. Mary Harney in his reply to the question. However, later Mr. Tom Gilmartin stated that he also told Ms. Harney about the demand at a house warming party in Dalkey. As this evidence was not contained in the circulated brief, the Tribunal immediately asked Mr. Tom Gilmartin to make a supplemental statement dealing with it, so that a decision could be made on its relevance. Mr. Tom Gilmartin subsequently made a supplementary statement which was read out in the public hearing on the 24th March, 2004, by Mr. Tom Gilmartin's counsel, retracting his reference to Ms. Harney. It stated, inter alia:
In my evidence to the Tribunal, I told the Tribunal that I had told Ms. Harney about my visit to the Dáil. However, having reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and Ministers in Dáil Eireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that evidence to the Tribunal I may have been confused with another housewarming party which also took place in Dalkey a year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms. Harney was not present at the second housewarming.
He stated that Ms. Harney was not one of the people he had told. That was the situation before the Tribunal.
New documents disclosed as a consequence of the earlier O'Callaghan case decision include a telephone attendance of Mr. Gallagher S.C., Tribunal counsel, dated 3rd October, 2002, of a telephone call from Mr. Hanratty S.C., who had been a Tribunal counsel but had left approximately a year previously, who informed him that Mr. Tom Gilmartin had said that he had met Ms. Harney at a party hosted by a person, whose name was initially redacted, in Killiney, quite a few years ago and that he told Ms. Harney at the time what was going on. Consequent to the decision of the High Court on July, 2005, the redaction of the name was removed.
Also in an earlier memorandum made by Mr. Hanratty S.C. on 28th June, 2000, now disclosed, he recorded a telephone call from Mr. Tom Gilmartin. Mr. O'Callaghan had deposed:
As a result of the decision of the High Court in July 2005, the redactions were removed from this document also and it transpires that what is stated is that Mr. Gilmartin claims that he received the information from a friend of his whose name he gives and it was in the house of this friend in Dalkey that Mr. Gilmartin met Mary Harney at a party. This name is different to the name first given by Mr. Gilmartin. Therefore it is clear that on 28th June 2000, Mr. Gilmartin specifically referred to meeting Mary Harney at a party but said nothing about telling her about the £5m demand in Dáil Éireann. The party is alleged to be held by a named person in Dalkey. Two years later October 2002, Mr. Gilmartin says that the party was held by a different named person and its in Killiney. For the first time he says that he told Mary Harney at that time 'what was going on'.
Submissions were made as to the absence of this information to counsel for Mr. Owen O'Callaghan at the time of the cross-examination of Mr. Tom Gilmartin. It was pointed out that the Tribunal withheld this information from Mr. Owen O'Callaghan, from public disclosure, that the material was inconsistent with the evidence given, but was still withheld. Mr. Owen O'Callaghan deposed:
The fact is that there were two memoranda which contained a reference to this matter and yet the Tribunal in asking for a supplementary statement took no steps whatsoever to disclose these memoranda and furthermore after the Supreme Court hearing redacted these documents in the manner described in paragraph 37. For the Tribunal now to say that I can cross-examine Mr. Gilmartin and make submissions to the Tribunal on the matter gives me no comfort whatsoever particularly in circumstances where notwithstanding all that had happened and the Order of the Supreme Court, the Tribunal still took the view that I should not be furnished with the unredacted statement.
The fact is that there were two memoranda, which were not disclosed initially, but which now are, as a consequent of the earlier O'Callaghan case. Mr. Tom Gilmartin has already withdrawn this statement. The relevant issue is Mr. Tom Gilmartin's credibility. That may be queried on cross-examination using these memoranda.
Knowing why the Tribunal did not disclose these documents would the reasonable observer believe it to indicate bias by the Tribunal? I do not believe so. Indeed, this particular example illustrates how much of the claim is based on "concern" of the applicants. Concerns stated by a party are not proof of bias, partiality or unfair procedures. Indeed, if 'concerns' could derail a case no independent inquiry would ever proceed. It is to be noted that this inquiry has been the subject of several forays into litigation, this time expressly based on 'concerns' of a party. Clearly 'concerns' could not form a basis for the orders sought.
On behalf of the applicants it was submitted that the issue of Mr. Tom Gilmartin's immunity has not been covered in the documents disclosed, that the terms have not been disclosed.
In the opening statement there was reference to the fact that the Director of Public Prosecutions, at the request of the Sole Member, decided that it was in the public interest to grant Mr. Tom Gilmartin immunity from prosecution, subject to his co-operation in giving truthful evidence to the Tribunal. Mr. Tom Gilmartin indicated in evidence that he had not asked for it.
The disclosed document in issue is a memorandum of a meeting with Mr. Tom Gilmartin in Strathmore Hotel in Luton on 30th September, 1998. It concludes by referring to Mr. Gilmartin driving three Senior Counsel, acting for the Tribunal, to Luton Railway Station, two of them got out. Mr. Tom Gilmartin is recorded as turning to Mr. Hanratty S.C. and saying 'don't forget that matter we talked about". Mr. Hanratty noted he asked him what matter and he said "immunity". Mr. Hanratty noted that he said "we do not think that he needed immunity but that if he wanted it we would get it".
On behalf of the applicants it has been submitted that this is entirely consistent with the Tribunal forming a view at an early date of Mr. Gilmartin's probity and having concluded that he did not need immunity but he got immunity so as to persuade him to testify against Mr. O'Callaghan.
It was submitted that this document is inconsistent with Mr. Tom Gilmartin's evidence – that he did not seek immunity – yet it was not disclosed – and that this indicates prejudgment by the Tribunal. Further it was submitted that it appears to be an inducement by the Tribunal.
From the beginning the Tribunal has made public the fact that Mr. Tom Gilmartin had immunity, and at the request of the Tribunal. The Tribunal has not objected to the terms of Mr. Gilmartin's immunity being stated in public, it is a matter for the Director of Public Prosecutions, who granted the immunity. It is entirely reasonable for the Tribunal to approach the Director of Public Prosecutions in relation to immunity for a potential witness. Mr. Tom Gilmartin had informed Tribunal counsel at a meeting of the 30th September, 1998 that he was advised to withdraw his statement and to seek immunity. Immunity was sought by the Tribunal from the Director of Public Prosecutions as a result of this conversation. This was referred to in the opening statement of the Tribunal.
In this case two concessions were made on behalf of the applicants:
that it was not being submitted that immunity on its own was significant – but that in the circumstances it was significant.
That it was not being submitted that the Tribunal disabled itself from finding his evidence untruthful.
I would dismiss this aspect of the applicants' case.
First, a grant of immunity by the Director of Public Prosecutions is not of itself an indication of unfairness, partiality or bias by the Tribunal. Especially when it is public knowledge and there has been no refusal to give information.
Secondly, a basis for an immunity, that truthful evidence be given, is not a ground either upon which to build a case of unfairness, partiality or bias. It is farcical to consider immunity on any basis other than the giving of truthful evidence – so this requirement is infact consistent with fair procedures.
Thirdly, the disclosed document is ambiguous – and not necessarily inconsistent with later evidence of Mr. Tom Gilmartin. However, this is not significant as in its opening statement the Tribunal had disclosed the existence of the immunity granted by the Director of Public Prosecutions at its request.
Fourthly, the remark, by Mr. Hanratty S.C. noted, is a remark of one of many counsel for the Tribunal, not the Tribunal itself. By no stretch of the imagination could it be considered to be a final decision of the Tribunal as to Mr. Tom Gilmartin's credibility. I am quite satisfied that a remark by a counsel of the Tribunal of the type disclosed, may not be attributed to be the final decision of the Tribunal. Or to indicate any prejudgment by the Tribunal.
Finally, no reasonable observer would conclude that the Tribunal had made a prejudgment on the credibility of Mr. Tom Gilmartin on the issues raised in this specific example.
(vi) Contact between Mr. Tom Gilmartin and counsel to the Tribunal, including drafting of affidavit.
Counsel submitted that there was a disparity of treatment by the Tribunal to Mr. Tom Gilmartin and by the Tribunal to Mr. Owen O’Callaghan. He submitted that this was a fundamental breach of fair procedures – an inequality – a disparity of treatment which engendered such unfairness that it makes it unfair for the Tribunal to continue, that the Tribunal should not be entitled to proceed. Counsel submitted that it appeared to Mr. Owen O’Callaghan, a reasonable man, that there was apparent bias by the Tribunal.
Mr. O'Callaghan deposed that the documents disclosed as a consequence of the earlier O'Callaghan case showed that Mr. Tom Gilmartin spoke with senior counsel for the Tribunal (on most occasions without the intervention of a solicitor) on at least 36 occasions. The Tribunal legal team travelled to London to meet Mr. Tom Gilmartin. A draft affidavit of Mr. Tom Gilmartin was prepared with the assistance of Tribunal counsel. Mr. Owen O'Callaghan stated that he was never allowed such opportunities of coming to meet the Tribunal in private sessions despite a repeated offer to do so. He deposed that he was never offered any undertakings as to confidentiality, while Mr. Tom Gilmartin sought and obtained immunity from prosecution before testifying at the Tribunal. He deposed that the terms of the immunity had never been disclosed. He deposed that Mr. Tom Gilmartin appeared to have unrestricted access to counsel acting for the Tribunal who met him on regular occasions, apparently without the presence of solicitors, and who assisted in the preparation of the statement which was subsequently circulated by him. He alleged that it appeared that a relationship existed between Mr. Tom Gilmartin and one of the senior counsel for the Tribunal which enabled Mr. Tom Gilmartin to telephone that counsel privately almost a year after that counsel left the Tribunal.
On behalf of the Tribunal Susan Gilvarry deposed that the Tribunal's contact with Mr. Tom Gilmartin was motivated by its desire to have him assist the Tribunal in its inquiries. From the Garda investigation file the Tribunal believed that Mr. Tom Gilmartin had information that could progress its inquiry. Initially Mr. Gilmartin's approach to the Tribunal indicate a willingness to provide information but a reluctance to attend or participate in the public hearing. In that context a meeting took place in London between Mr. Tom Gilmartin and members of the legal team of the Tribunal, which was attended initially by the Sole Member to allay concerns expressed by Mr. Tom Gilmartin. No discussions with Mr. Tom Gilmartin took place with the legal team until the departure of the Sole Member. Mr. Tom Gilmartin was assisted in preparing his affidavit in circumstances where he had decided to dispense with his then legal team's services.
Ms. Gilvarry deposed that the practice of travelling to another jurisdiction by members of the Tribunal's legal team in circumstances where a witness was based in another jurisdiction did not happen only in relation to Mr. Tom Gilmartin. Counsel for the Tribunal travelled to meet Professor Ray Hills, a witness in the Century Radio Module, in London, in 1998. Counsel also travelled abroad to meet with Mr. Dadley and Mr. Mould, witnesses in the Quarryvale Module, in 1998 and 2002; to meet Mr. Richard Forman, a witness in the Quarryvale module in October, 1998; and to meet Mr. Patrick Taylor, a witness in the Century Radio Module. Ms. Gilvarry stated that such a practice is in keeping with the practice in other Tribunals, that it was not a practice motivated to give preferential treatment to certain parties but arose because of the exigencies of the situation. Thus the Sole Member sat in Guernsey for three weeks in 1999 to facilitate the taking of evidence from Mr. Joseph Murphy – which fact was widely known.
Ms. Gilvarry explained that the level of contact between Mr. Gilmartin and the Tribunal's counsel arose in circumstances where Mr. Tom Gilmartin said he was unhappy with his solicitor, which attitude was exacerbated when Mr. Tom Gilmartin heard that a transcript of a typed statement he had made had been made available to third parties. Ms. Gilvarry explained that the cessation of direct contact between Mr. Tom Gilmartin and counsel for the Tribunal effectively coincided with the appointment of A&L Goodbody, solicitors, to act for Mr. Tom Gilmartin: A&L Goodbody were appointed to act for Mr. Tom Gilmartin in February, 2000 and direct contact between counsel for the Tribunal and Mr. Tom Gilmartin ceased after that date.
Further, Ms. Gilvarry deposed that Mr. Tom Gilmartin's unsolicited contact with Mr. Hanratty after Mr. Hanratty had left the Tribunal, was not a matter over which the Tribunal or Mr. Hanratty had any control.
In reply, Mr. O'Callaghan, deposed that prior to Mr. Tom Gilmartin getting legal representation from A&L Goodbody, he had legal representation from Noel Smyth & Partners, and Eugene F. Collins, solicitors, yet there was direct contact. Mr. Owen O'Callaghan expressed concerns about the direct contact between counsel for the Tribunal and Mr. Tom Gilmartin, and deposed that it was inconsistent with independence and equality of treatment required of the Tribunal by law. Nor did he accept that neither Mr. Hanratty or the Tribunal had any control over Mr. Tom Gilmartin's contact with Mr. Hanratty, he stated that Mr. Gilmartin should have been told that such contact is inappropriate. Further, Mr. Owen O'Callaghan deposed that he viewed it as quite extraordinary that Mr. Tom Gilmartin would, at a time when he had his own solicitor and counsel, make contact with counsel for the Tribunal after that counsel had ceased to work for the Tribunal and deposed that it suggested a level of contact with the Tribunal and advice to Mr. Tom Gilmartin that was singular as far as Mr. Owen O'Callaghan was concerned. Mr. Owen O'Callaghan deposed that it was inconceivable that he or the other applicants would have been afforded a similar facility. Mr. Owen O'Callaghan deposed that the level of contact is difficult to reconcile with the Tribunal's duty to investigate. He stated that it created a serious apprehension on his part that the Tribunal had already developed a special relationship with Mr. Tom Gilmartin and a view of the reliability of his evidence so that it enabled Mr. Tom Gilmartin to contact the Tribunal counsel directly for advice notwithstanding that he had his own advisers.
First, I am satisfied that this submission fails.
The test to be applied is objective, the reasonable apprehension of a reasonable person, it is not subjective. It is not the subjective concern expressed by Mr. Owen O'Callaghan.
Secondly, the level of contact by a Tribunal to a particular person will depend on many circumstances, primarily the role of that person in the Tribunal's work. In this case Mr. Tom Gilmartin has made many serious allegations which are being investigated by the Tribunal. That places Mr. Tom Gilmartin in a specific role. On the otherhand, Mr. Owen O'Callaghan is one of the persons against whom allegations have been made, thus he has a different role in the work of the Tribunal. The Tribunal is entitled to treat witnesses differently, such difference is not evidence of unfairness, partiality, or bias.
Thirdly, the level of contact will also be affected by whether or not a witness had legal advisors. On many occasions in the initial years Mr. Tom Gilmartin did not have legal advisors. A tribunal will have more contact with a witness not represented by solicitors.
Fourthly, the Tribunal's counsel did assist Mr. Tom Gilmartin with his affidavit, – which is entirely consistent with the policy and rules of the Tribunal. It is not an indication of unfairness or bias. Indeed, evidence was given of assistance given to the applicants and to others.
While there has been greater contact by the Tribunal with Mr. Tom Gilmartin than with Mr. Owen O'Callaghan it is explicable in the circumstances. Differences will occur in the process of a Tribunal. When a witness is in a foreign jurisdiction, is making allegations, has no legal advisers, that presents a certain set of circumstances. The applicants were in a different situation, allegations were made against them, they had legal advisers, and the Tribunal was investigating the allegations made against them.
I agree with the learned High Court judge, that the Tribunal were entitled to assume that Mr. Tom Gilmartin did not set out to deliberately perpetrate falsehoods. However, this is a preliminary analysis, at the preliminary investigative stage, prior to the hearings in public, and prior to the ultimate decision by the Tribunal. Such an approach is not unfair. The Tribunal has consistently pointed out the preliminary nature of its work and that no decisions as to credibility have been made. The decisions were enabling of a public hearing, and not a final decision on credibility. I am satisfied that this submission fails, no reasonable person would infer bias by the Tribunal, or prejudgment as to credibility, in the circumstances.
(vii) Dáil Éireann alleged 5m demand and "gangster friends".
Mr. Owen O'Callaghan deposed that a significant issue which occupied the time of the Tribunal was an allegation by Mr. Tom Gilmartin as to his attendance at a meeting at Dáil Eireann in or about the month of February 1989. A detailed account of this meeting was given by Mr. Tom Gilmartin which was described by counsel for the Tribunal in opening the module. That account involved Mr. Tom Gilmartin being lead out of the cabinet room to find that Mr. Liam Lawlor was outside the room talking to somebody else. A man allegedly approached from Mr. Tom Gilmartin's right hand side whom he did not recognise and suggested that Mr. Tom Gilmartin make a payment of £5m and gave him a piece of paper which he told him contained a bank account number in the Isle of Man. Mr. Tom Gilmartin allegedly rejected this approach saying 'you make the f***ing mafia look like monks' and said that as he walked away the man 'tapped' him on the arm and said you could end up in the Liffey for that statement. To this, Mr. Tom Gilmartin claims he responded with an expletive and walked towards the lift and left. Mr. Liam Lawlor allegedly walked away in front of him.
Mr. Owen O'Callaghan deposed that the documents now disclosed because of the earlier O'Callaghan case show that the Tribunal had in its possession a detailed note of a telephone conversation between Mr. Hanratty S.C. and Mr. Tom Gilmartin on 3rd June, 1999. In that account, Mr. Tom Gilmartin says that:
at one stage he saw [a prominent named politician] talking in an alcove to OOC. TG had decided to leave and saw this on his way out. OOC called him back and asked him where he was going. TG said he was fed up with him and his gangster friends. OOC said that neither he nor any Unionist would put a foot on Quarryvale.
Mr. Owen O'Callaghan deposed that the reference to OOC was clearly a reference to him. That this is the only time this allegation had been mentioned by Mr. Tom Gilmartin. It was not mentioned in evidence. He deposed that this allegation is completely untrue. Despite the fact that many of the cabinet members mentioned by Mr. Tom Gilmartin as being present at that meeting were called to give evidence and despite the amount of time that Mr. Tom Gilmartin devoted to this issue in direct and cross examination, it was never suggested by Mr. Tom Gilmartin or by any other witness or by counsel for the Tribunal, that Mr. Owen O'Callaghan was present that day or spoke to Mr. Tom Gilmartin or spoke to the said named prominent politician. That politician had testified and it was never suggested to him that Mr. Owen O'Callaghan was present in the vicinity of that meeting. Neither was it suggested to Mr. Owen O'Callaghan when he testified.
Mr. Owen O'Callaghan deposed that Mr. Tom Gilmartin had sought to implicate him with this alleged demand or in some way associate him with it. It appeared to him that the allegation was relevant, admissible and probative and that it was a glaring inconsistency between the account given by Mr. Tom Gilmartin to the Tribunal and that given by him on a previous occasion. Mr. Owen O'Callaghan deposed that he found it difficult to imagine any reason why the Tribunal would conceal this information other than the fact that it could be used to undermine the credibility of Mr. Tom Gilmartin by showing that he had made an untrue allegation about him in relation to a central event. It seemed to Mr. Owen O'Callaghan that the Tribunal must have formed a view that the allegation was untrue on the basis that no other person in Dáil Éireann on that day was able to corroborate it and must have decided not to disclose it. It also appeared to him that an impartial Tribunal which had formed no fixed view as to whether the allegation was true or not would have pursued it at a public hearing.
On behalf of the Tribunal Ms. Susan Gilvarry deposed that the Tribunal was of the view that the Dáil meeting referred to in the memo of 3rd June, 1999, particularly when read in the context of the earlier memos referred to and including the memo of the meeting of the 15th, February 1999, was a different Dáil meeting and that the meeting in the Dáil at which Mr. Owen O'Callaghan was present occurred sometime in 1991 and was not the meeting which occurred in or around February, 1989, at which the demand for £5m was made. The Tribunal was of the view that an allegation was being made by Mr. Tom Gilmartin that Mr. Owen O'Callaghan was present at the Dáil on the date of the demand for £5m. As a consequence the Tribunal took the view that this was not a glaring or significant inconsistency.
Mr. Owen O'Callaghan has deposed that there is no basis upon which the Tribunal could consider it was a different meeting. Further he expressed concern that the Tribunal could decide this in private without referring to him.
Mr. Owen O'Callaghan deposed:
The statement that the Tribunal did not form any view as to the truth or otherwise of these allegations suggests that it has taken a certain view of facts which go to the core of these issues without apprising me of the view which it was taking or giving me any opportunity to make any submissions with regard thereto or indeed even apprising me of the material on which such views were based raises serious issues. Again, I note that the Tribunal has formed a view, benign to Mr. Gilmartin in a matter very important to the issues which it has to determine, without allowing me the opportunity of exploring the issue and its significance through cross-examination and without disclosing the reason for the view so formed. This demonstrates that the Tribunal at the private stage did what it is not entitled to do, namely, it formed a view as to the veracity and interpretation of Mr. Gilmartin's statements which then enabled it to conclude that a discrepancy was of no relevance. Furthermore the fact that it decided not to form any view as to the truth or otherwise of the allegations meant that I was deprived of the opportunity of demonstrating that the allegation was untrue. If I had had the opportunity and so demonstrated the falsity of the allegation, then clearly that would have been relevant to the Tribunal's consideration of the issue and Mr. Gilmartin's credibility.
I would dismiss this submission of the applicants also.
First, the Tribunal has presented evidence that it has not formed any view as to the truth or otherwise of the allegations. These are matters which will be subject to further cross-examination and evidence. It was re-iterated that the Tribunal has an open mind. While that is not conclusive of the issue it is evidence to be considered and put in the balance.
Secondly, this judicial review is not to reconsider and act as an appeal court to the decisions of the Tribunal. The Court does not step into the shoes of the Tribunal. A court should be slow to intervene in these initial stages of the process.
Thirdly, the work of the Tribunal at the investigative stage is done in private. This aspect of the work could not be done in public without great harm being done to the investigation itself and to many persons who would be put unnecessarily in the public eye.
Fourthly, on this particular example the Tribunal has explained their view, the Tribunal did not read it as an allegation against Mr. Owen O'Callaghan. It is Mr. Owen O'Callaghan who has suggested that it should be inferred that Mr. Tom Gilmartin was involving Mr. Owen O'Callaghan in the £5m issue. It is an explicable stance of the Tribunal to have considered that it was not an allegation against Mr. Owen O'Callaghan. While the view of the Tribunal is not determinative it is a factor.
In all the circumstances therefore, I am satisfied that this example does not advance the applicants' claim to prohibit the further work of the Tribunal.
Counsel on behalf of the applicants has dipped and picked issues and examples from the mountain of paperwork of this Tribunal. He cites it for the applicants' cause. However, it is necessary to consider the totality of the work of the Tribunal, not events in isolation. When looked at in the totality the appropriate analysis may be made and the appropriate test applied.
Before concluding on the seven specific examples I will refer to the issue of the redaction of documents when they were first released by the Tribunal after the earlier O'Callaghan case.
In the earlier O'Callaghan case the High Court (O'Neill J.) on 7th July, 2004 held that it would be very damaging to the public interest if there was a withholding from disclosure of material in the possession of the Tribunal relevant to the subject matter of a particular module and which a person affected by the allegations made in the inquiry, might need to establish the truth and vindicate his or her good name. The decision was grounded on breach of the applicant's right to fair procedures. The Tribunal had apprehended a threat to its management of its business by the mixing of one module with another. O'Neill J. pointed out:
In this case we are concerned only with a very limited category of documents, and of those, only those parts relevant to the current module of the Tribunal. In my view in these circumstances there is no risk of bringing the kind of chaos to the business of the Tribunal that has been mentioned.
He concluded that there had been a breach of the applicants right to fair procedures and that the encroachment this made into those rights is not necessary for the protection of the public interest. He granted a declaration but confined it to the documents relevant to the present or current module of the Tribunal. The Tribunal's appeal was dismissed by the Supreme Court on 9th day of March, 2005. Counsel indicated to the Supreme Court that the Tribunal had concerns in relation to the rights of third parties who might be prejudiced by the circulation of documents containing allegations by them which were not at this time being investigated by the Tribunal and some of which were not within the remit of the Tribunal. Counsel indicated that it proposed redacting parts of the documentation in respect of those matters. The Supreme Court indicated that if the applicants were not satisfied with the situation the matter was to be considered by the High Court. The Supreme Court ordered:
.... that the matter be remitted to the High Court to determine the question of what documents are to be made available to the applicant having regard to the nature of those documents – this Order not to operate to prevent the parties from agreeing to give or receive any such documents in the meantime.
The Tribunal collected the documents and redacted parts of the documents. Reasons were given for each redaction such as the rights and entitlements of third parties where the material related to allegations which the Tribunal would not be investigating. The applicants were not happy to accept the redactions. Therefore the Tribunal itself brought a motion to the High Court seeking a declaration that the circulation of the documents as redacted was in full compliance with the court order, or, in the alternative, seeking an order specifying the documents or parts thereof which are to be provided to the applicants. The documents in an unredacted form were made available to the High Court. The High Court heard submissions from the parties. The specific order of the High Court was that:
O'Neill J. stated:
I am satisfied that in order to vindicate the applicant's constitutional right as aforesaid, it is necessary that those who have the responsibility for defending the applicant's good name, i.e. his legal advisors and in particular counsel, should have access to this redacted material for the purpose of cross-examining the notice party.
I am satisfied therefore that the order of the 14th July, 2004, must of necessity, extend to material relevant to the issue of the notice parties credibility but not directly relevant to the factual allegations in modules Quarryvale I or II. I have reached that conclusion for the paramount reason of the necessity to vindicate the constitutional right of the applicant, to his good name.
I have come to the conclusion therefore that material redacted under categories 'D' and 'E' should be disclosed to the applicant's legal advisors.
It is appropriate in my view that the disclosure of this material should be subject to the kind of restriction that goes with the disclosure of material on discovery of documents in civil actions, namely, that the material can only be used for the purpose for which it is disclosed in the proceeding in question and for no other purpose. Accordingly therefore I would make an order restraining the applicant from using this material for any purpose other than the cross-examination of the notice party or for necessary enquiries related thereto.
There was no appeal to this Court from that decision of the High Court.
It was the Tribunal which took those proceedings to the High Court to clarify issues arising on the redactions, such as whether it meant all documents relevant to credibility but not relevant to issues on that module – i.e. extraneous material to the module but relevant to credibility.
The applicants have submitted that the redactions are yet further evidence of the Tribunal's approach to the applicants, of bias, unfairness and partiality.
I would dismiss this ground also.
This was a bone fide and open process of the Tribunal to clarify important issues. On reading the documents I am satisfied that no reasonable person would have a reasonable apprehension of bias as a consequence of this matter. To submit that the documents were redacted contrary to court orders, was incorrect. This was a difficult area of decision making, a question of important issues to be balanced, and the Tribunal sought a ruling from the High Court. Inspite of this process the applicants have submitted that the redactions by the Tribunal were yet further examples of bias, partiality and unfairness by the Tribunal. I am satisfied that this is not so. Indeed, the submissions by the applicants on this point hint a significant refusal to work with the Tribunal, and consequently to cause delays in the work of the Tribunal. In the circumstances, I am satisfied that a reasonable person, having knowledge of all the facts, would not infer bias, partiality and unfairness on behalf of the Tribunal.
Decision on the seven specific examples
At issue is whether a reasonable person would have a reasonable apprehension from these seven specific examples that the Tribunal was acting unfairly, or was biased or had made a prejudgment, a final determination, on the credibility of Mr. Tom Gilmartin and/or the applicants. Having considered the examples I am satisfied that such a person would not. The evidence of the rulings and procedures, and stages of the Tribunal process, and decisions made as to matters to be included in the brief, and the specifics of these seven matters, may have illustrated some errors, but not objective bias. A reasonable person, having knowledge of all the facts, and perceiving these decisions of the Tribunal, at these early stages, would not have a reasonable apprehension of bias, impartiality or unfairness on behalf of the Tribunal, would not have a reasonable apprehension of prejudgment on the issue of credibility by the Tribunal. An apprehension on behalf of the applicants is not the applicable test, it is that of the reasonable person.
These examples have been given to the Court for the purpose of asking the Court to infer objective bias by the Tribunal on the issue of credibility, the Tribunal has not expressed an explicit view on the issue of credibility of the persons yet. This is entirely consistent with the current early stage of the Tribunal. In fact, the Tribunal has expressly stated that it would not make a decision on credibility until after the public hearings. For the reasons given in relation to the seven specific examples and above, I am satisfied that, a reasonable person, who has knowledge of the relevant facts, would not infer bias, partiality, prejudgment or unfairness by the Tribunal.
These documents may now be used in the cross-examination of Mr. Tom Gilmartin. Counsel for the applicants submitted that it is now too late. However, I am satisfied that that is not the case. If anything, indeed, a cross-examination now, on foot of the documents newly disclosed, after the earlier examination, will be memorable, and, in the circumstances, perhaps even stronger than if it had occurred as part of the initial cross-examination. It is not a criminal court of trial with a jury. It is an inquiry by a Tribunal – the process of which is not yet completed.
(i) The decision in this case is made in the context of many relevant factors which require to be considered.
(ii) The applicants have come to Court seeking an order stopping the Tribunal from investigating them further. The basis for seeking such an order is alleged bias, partiality and unfairness by the Tribunal against the applicants. For the reasons which I have and will give I would not order the Tribunal to cease its inquiries.
(iii) This appeal arises within the framework of an application for judicial review. It is not an appeal de nova of decisions. The applicants have chosen a process which exists to supervise the exercise of the jurisdiction of the Tribunal. It is not a process available to correct errors nor to make the Court a court of appeal. It is not appropriate for a court on such review to carry out a microscopic analysis of the decisions made by the Tribunal. The decisions of the Tribunal are analysed – not to determine whether they were correct, but to see if they illustrate a bias. An error by the Tribunal is not relevant in this process.
(iv) The mountain of detail and microscopic analysis of decisions made by the Tribunal in its preliminary phase, which has been brought before the Court in this appeal, immediately raises my concern. Even if it is, as submitted, that the analysis of the decision-making process is not being taken to require this Court to make a decision on the individual issues, but to show unfairness, partiality, and bias, the level of detail raised rings an alarm bell, both as to the future work of Tribunals, and as to the use of the process of judicial review.
(v) An important factor is the nature of the decision maker. In this case it is a Tribunal of Inquiry into Certain Planning Matters and Payments, appointed by instrument of the Minister for the Environment and Local Government on Resolution of the Dáil. The Tribunal was established under the Tribunal of Inquiry (Evidence) Act, 1921 as amended. The Tribunal is to inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit into definite matters of urgent public importance, as set out on the Terms of Reference. It is the choice of the people's representatives that this instrument, the Tribunal, be utilised to investigate matters of public concern – corruption in the planning process. A court should be slow to intervene in such an inquiry. As the learned trial judge said:-
The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running.
I would affirm this principle.
(vi) Further, the judicial review relates to the early stages of the Tribunal.
The fact that the Tribunal works in stages was considered previously in this judgment. Theses are exceptional inquisitorial powers given to the Tribunal. They necessarily expose private matters.
The very institution of the Tribunal with its powers risks baseless allegations being made. Because of this and other dangers a tribunal is only established for matters of vital public importance. A tribunal works in stages. As Hamilton C.J. described in Haughey v Moriarty 3 I.R. 1 at p. 74, these stages are
preliminary investigation of the evidence available;
the determination by the tribunal of what it considers to be evidence relevant to the matters into which it is obliged to inquire;
the service of such evidence on persons likely to be affected.
There then follows the public hearing in regard to such evidence, and the cross-examination of witnesses, and then the preparation of a report with recommendations based on the facts established at public hearing. This case relates to claims relating to the early stages. The investigative stage is necessarily held in private. Decisions as to the contents of the briefs are also made at an early stage and are not final, but may be added to at times.
(vii) To make the point that this review relates to decision-making in a Tribunal a different way; the decisions in issue do not arise in a criminal trial. This is not a review of a criminal trial. Rules of procedure appropriate in a criminal trial are not appropriate in a tribunal – at any stage of the process. It would be entirely wrong to require of a tribunal that it conduct its business in the manner of a criminal trial. The protection of constitutional rights does not require an entitlement to procedure as in a criminal trial, at any stage of a tribunal.
(viii) It is a significant factor also that this case follows the earlier O'Callaghan case. In O'Callaghan v Mahon IESC 9 this Court held that the Tribunal had applied its own policies too rigidly and infringed the Constitution. As a consequence of that decision the applicants were given disclosure of over 50 documents. Arising from that disclosure, and with reference to those documents, the applicants are now alleging that the Tribunal has acted unfairly, partially and with objective bias.
(ix) As the Tribunal is still at early stages of its procedure – investigation and public inquiry – the ultimate process of decision-making (which comes at the end of the various stages) has not yet arrived. The Tribunal is not a stage at which final decisions are made.
The Tribunal has stated on many occasions, evidence of which is before this Court, that the issue of credibility is a matter which will be decided after all the evidence is gathered, after the public hearings. That stage has not yet been reached. Those statements are not determinative of the issue – but are factors to be considered. Such an approach is consistent with the various stages of a tribunal as described previously in this judgement. Yet the applicants have submitted that objective bias should be inferred.
I am satisfied that a reasonable person, with knowledge of the relevant facts, would not make such an inference in the circumstances, would not have a reasonable apprehension of bias on this basis, that final decisions on the issues of the credibility of Mr. Tom Gilmartin or Mr. Owen O'Callaghan have been made.
(x) The Tribunal has itself established a procedure, none having been given to it in its terms of reference. Earlier in this judgment, at paragraphs 25-38, I have set out in detail some examples of the policies and procedures of the Tribunal as to disclosure and confidentiality. Of course, these rulings were prior to the earlier O'Callaghan case, which held that the Tribunal erred on applying its rules on disclosure and confidentiality. However, they are relevant in that they illustrate a careful approach taken by the Tribunal. The fact that the Tribunal fell into error in its application of its own rules does not detract from the fact that a careful general procedure was established, that the different stages of the Tribunal are reflected in the rulings, that the investigative stage is acknowledged and addressed, that provisions are made for the excessive amount of documentation, that it is stated that no decision on credibility will be taken prior to the conclusion of the public hearing, and that specific policies of confidentiality, disclosure and assistance were established.
(xi) A further factor relevant is the mountain of documents before the Tribunal. This is not a situation where the documents disclosed refer to a routine court case – even it if has many documents. These are documents, often counsel's notes or memos, often very short, taken over the last decade, and contained in a mountain of paper. Indeed, the volume of paper work has been so extensive that special IT retrieval systems have been developed. In other words, this Court, having ordered that these documents now be disclosed, the documents should be considered in context. The context is that the Tribunal, and the applicants, are working with an incredibility large volume of documents and papers.
(xii) Also, in context and relevant are the particular positions of the parties in the Tribunal. Mr. Tom Gilmartin has made allegations which are being investigated by the Tribunal. The first named applicant's position as a witness to the Tribunal arises out of allegations made to the Tribunal and his involvement with lands at Quarryvale, individually and through corporations, notably the third and fourth applicants. The second named applicant is a director of the third and fourth applicants and a consultant in the firm Ronan Daly Jermyn, which is solicitor for all the applicants.
The lands at Quarryvale did not have zoning for a town centre in the 1983 Dublin Development Plan. In 1987 a review of the 1983 plan commenced and as a consequence the 1993 Development Plan for Dublin was created. In the course of this the Quarryvale lands were zoned and they included provision for a limited town centre. Eventually the Liffey Valley Shopping Centre was built on these lands.
In April 2000, Mr. Frank Dunlop, at a public hearing before the Tribunal, gave evidence stating that substantial payments were made to public representatives to influence their votes in land zoning. He stated that he made payments to councillors in order to secure the zoning of Quarryvale.
The applicants have informed the Tribunal that at no time did they pay any money to secure any votes, nor did they authorise anyone to do so. As deposed to by Ms. Gilvarry, in response to queries from the Tribunal, Mr. Owen O'Callaghan has provided details of payment as follows:-
Mr. Owen O'Callaghan accepts that the aggregate sum of £1,808,541 (€2,296,847) was paid by him, or companies of which he was a director, to Mr. Frank Dunlop or Mr. Dunlop's companies.
Mr. Frank Dunlop has stated that some of the payments made to him by Mr. Owen O'Callaghan were lodged in accounts from which he paid alleged bribes to named councillors for their support for rezoning, including the lands at Quarryvale. Mr. Owen O'Callaghan has stated that he neither instructed nor authorised Mr. Frank Dunlop to pay councillors for their votes nor was he aware that any payments had been made to members of Dublin County Council other than those political donations notified by Mr. Dunlop to him.
Mr. Owen O'Callaghan has stated that the aggregate sum of £35,000 (€44,450) was paid directly by him, or companies of which he was a Director, to Mr. Liam Lawlor (deceased) between 18th November, 1991 and 13th March, 1995.
Mr. Owen O'Callaghan has stated that the aggregate sum of £60,500 (€76,835) was paid directly by him, or by companies of which he was a director, to Dublin City Councillors, between 1989 – 1993.
(xiii) In relation to the documents now disclosed because of the earlier O'Callaghan case, the applicants now allege bias, partiality and unfairness by the Tribunal.
While denying, finally, that it was asking the Court to infer bias from a pattern of erroneous decisions, in fact the applicants have brought the Court through a microscopic analysis of decisions. This, at first appearance, is asking the Court to step into the shoes of the Tribunal, to evoke an appeals process. Such is not the role of the Court in judicial review. I would dismiss this aspect of the appeal insofar as it in fact sought a microscopic analysis of individual decisions of the Tribunal.
It was, in light of the serious nature of the claims made by the applicants, because of the form which the case took in the High Court, and this Court, because of the highly nuanced submissions presented that, I have addressed the specific examples submitted.
(xiv) Seven specific issues
In this context the seven specific matters were referred to by counsel. Counsel submitted that they represented the height of the applicants' case and he therefore, while relying on the entire written submissions, submitted that if he did not succeed on the seven specific issues his case would fall.
I am not satisfied that the applicants case has been made out on these seven matters, as stated previously in some detail in this judgment. For the reasons stated I am not satisfied that they establish a basis for an order stopping the Tribunal from proceeding with its work.
In general it is undesirable that a court intervene with the process of a Tribunal while it is at hearing. As Geoghegan J. stated in O’Callaghan v Mahon  I.E.S.C. 9:
In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly intervene.
It is unfortunate that the necessary intervention by this Court in that case has spawned this litigation – which relates to the same investigative and public hearing process of the Tribunal.
(xvi) The width of the terms of reference are also a relevant factor. The Tribunal was established by resolution of the Houses of the Oireachtas to investigate corruption in relation to certain planning matters. Its terms of reference are very wide, and, arising from the experience of this and other Tribunals, I doubt whether such wide terms of reference will be drawn again. Nor is there is an explicit time frame, and, arising from the experience of this and other recent Tribunals, it may be that in the future, time limits or dates may be established in establishing such inquires. However, that did not occur in this case.
(xvii) The work of the Tribunal is of great importance to the community. This was recognised by the Dáil on its establishment. It is not a legislative body, or a court of law, but rather it is a tribunal of inquiry, established under the Tribunal of Inquiries Act, 1921, as amended, with all the dangers of such an inquiry, such as a person's privacy. It is inquiring into matters of public importance, into issues of corruption in the planning process. Planning in a community is at the heart a civilised society, and thus the issues being inquired into are of great importance to the people who live in the community. It is in that context that the people's representatives chose this tool of inquiry.
(xviii) The redaction of the documents initially by the Tribunal after the earlier O'Callaghan case was explained fully by the Tribunal, which itself brought a motion to the High Court to obtain an order as to how it should proceed. The High Court ordered that some matters be redacted and others not. This decision was complied with and not appealed. I have dealt with the matter fully earlier in this judgment. That this was a ground for the applicant's claim illustrates the frailty of its case, and the nature of this claim illustrates a degree of antagonism to the Tribunal. I have no doubt in dismissing this ground of appeal.
(xix) It was part of the applicants' case that decisions of the Tribunal refusing to disclose documents (now disclosed as a consequence of the earlier O'Callaghan case) indicate decisions on relevance or consistency by the Tribunal from which a reasonable person would have a reasonable apprehension that the Tribunal had decided that Mr. Tom Gilmartin was a credible witness and that Mr. Owen O'Callaghan was not, in other words that it had made a prejudgment, was biased and unfair. I am satisfied that this is not so, no reasonable person, with full knowledge of the facts, would have a reasonable apprehension of bias.
Having read the pleadings, and the many boxes of papers submitted, and heard the oral submissions, and carefully considered the case, I had an inclination to dismiss this appeal with one sentence -affirming the judgment of the High Court.
However, because of the serious allegations made, and to allay any apprehension of bias, and so that justice may be seen to be done, I have addressed the most important issues raised on behalf of the applicants, and have given express reasons for my decision.
In these proceedings the applicants have sought an order of the Court to stop the Tribunal from investigating further or making any findings against the applicants on grounds of bias, unequal treatment, partiality and/or unfairness by the Tribunal. In essence, in the circumstances, the claim is one of objective bias, prejudgment by the Tribunal.
The issues raised in this case are rooted in the early stages of the Tribunal. They reflect decisions made in the preliminary stage as to issues, as to relevancy and consistency of documents and information. They reflect decisions made as to which issues should proceed to a pubic hearing and to which module, and the relevant documents.
Plainly not all documents could be circulated. If such were to be the case the process would be inoperable. For example, the volume of documents would be excessive and persons' rights would not be protected.
A decision-making process takes place as to the content of the brief to be circulated, prior to a module of public hearing of the Tribunal. This takes place in a situation where there is an enormous volume of documents. The Tribunal has over the last ten years established policies and rules relating to issues such as relevancy, consistency, and confidentiality; and these were applied to the documents is issue. These rules have not been held to be invalid. Indeed, this Court has endorsed the necessity for policies and rules to assist the Tribunal's process. In the earlier O'Callaghan case this Court held that the Tribunal had applied its own policies too rigidly and infringed the Constitution. It was ordered that some documents which had not been disclosed be given to the applicants. Therefore, the applicants now have the documents for the purpose of cross-examining Mr. Tom Gilmartin. That decision of this Court has provided the remedy which protects the constitutional rights of the applicants.
The applicants now claim bias by the Tribunal against them. Absolute bias is not alleged. What is alleged is objective bias – the apprehension of bias. The law as to this concept has been established clearly, and set out earlier in this judgment. The test to be applied is whether a reasonable person, who had knowledge of all the relevant circumstances, would have a reasonable apprehension of bias. It is an objective test. The applicants have raised a particular type of objective bias – that of prejudgment.
The test is objective, it is not governed by concerns of the applicants, it is not determined by statements of the Tribunal. It is that objective test which I have applied.
The applicants submitted that there has been prejudgment by the Tribunal. It has been held by this Court in the earlier O'Callaghan case that the Tribunal erred in its decisions as to the disclosure of the documents in issue, that it was incorrect when it refused to disclose them. This Court has now ordered that they be disclosed. However, it is well settled law that bias may not be inferred from a pattern of erroneous decisions. So the previous errors of the Tribunal are not a basis from which to establish, by inference, objective bias/prejudgment.
There has been extensive evidence as to certain actions of the Tribunal. The question is whether there is a basis, external to the decisions of the Tribunal, from which a reasonable person would have a reasonable apprehension of bias, of prejudgment, by the Tribunal. Whether, from the documents now given to the applicants, a reasonable person would have a reasonable apprehension that the Tribunal had prejudged the credibility of Mr. Tom Gilmartin, favourably, and that of Mr. Owen O'Callaghan unfavourably. I am satisfied that a reasonable person would not have such an apprehension.
The Tribunal has not made any express decision as to the credibility of either Mr. Tom Gilmartin or Mr. Owen O'Callaghan. The Tribunal has repeatedly stated that it has not made decisions on credibility, that it would make its decisions after the public hearings. These hearings have not yet concluded. Such an approach is consistent with its policies and rules and with the staged processes of such an inquiry. Of course the statements of the Tribunal are not conclusive of the issue. An objective test has to be applied. This I have done. I am satisfied that no express or settled view has yet been reached by the Tribunal as to the credibility of Mr. Tom Gilmartin or Mr. Owen O'Callaghan. Nor could an inference of prejudgment be drawn from the circumstances, the documents before the Court. The Court was asked to infer prejudgment from the actions of the Tribunal. As the previous erroneous decisions of the Tribunal may not ground such a finding of prejudgment, it is the seven specific examples submitted which form the core of the submissions. I have dealt with these in the judgment, and found they did not establish bias and dismissed them. There is no violation of the applicants' rights in this Tribunal proceeding with its work. Insofar as there was a breach of rights this has been remedied by the earlier O'Callaghan case. Thus there is no question of needing to balance one set of rights against another.
The Court was faced with extensive facts and it was submitted these established bias by the Tribunal. I have not found this to be so. There is no doubt that there were errors by the Tribunal, but they are not a foundation upon which the applicants' claim may be built. A remedy has been given for those errors.
The extensive use of fact, to micro-analyse decisions of the Tribunal, as if this were an appeal process, together with the fact that the erroneous decision of the Tribunal have already been remedied by this Court in the earlier O'Callaghan case, and the law that such errors may not ground a finding of objective bias, indicate an inappropriate use of the process of judicial review.
The matters raised in this case refer to issues yet to be determined by the Tribunal. The applicants have not established bias or prejudgment by the Tribunal. Therefore there is no basis upon which to stop the Tribunal proceeding with its work.
For the reasons given in this judgment I would dismiss the appeal.
The respondents are the current members of the Tribunal of Inquiry into certain planning matters and payments. This Tribunal was established originally in October, 1997 with Mr. Justice Flood as its sole member. It was then to inquire into the planning history of specified lands in North Dublin. The terms of reference however were subsequently extended and in the upshot the Tribunal is still sitting. The original sole member has long since retired from it having published some reports on certain matters within its remit. The respondents are the current members of the Tribunal and they sit together to transact the Tribunal’s business.
The nature of Tribunal and the present case
The Tribunal was established by Instrument of the Minister for the Environment and local government dated the 4th November, 1997, as amended by a further Instrument dated the 15th July, 1998. These, in turn, followed resolutions of Dáil Éireann, resolving that it was expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, “to enquire urgently into and report to the clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance ....”
The Tribunal, accordingly, is intended and empowered urgently to carry out a public inquiry into matters specified in the resolutions which are regarded as being matters of urgent public importance. Notwithstanding this, however, the bulk of the Tribunal’s work in the period, extending now to almost a decade, since its establishment, has been conducted in private. The nature of this work done in private, and the basis on which it is done, are central to the present case. The applicants complain that the Tribunal dealt intensively in private with a person whose hostility to them is manifest, Mr. Tom Gilmartin. He has made allegations against them which the Tribunal is investigating. They claim that these interactions, at least 36 in number, took place at meetings in Ireland and in the United Kingdom and in a series of immensely long telephone conversations. The applicants claim that they led, just before the public hearings of March, 2004 to the production of a statement of Mr. Gilmartin’s proposed evidence which was notable (in hindsight) for the withholding of any information which might adversely affect his credibility or otherwise be of any use in cross-examining him. This course of action, however, did not have its desired effect because Mr. Gilmartin was simply incapable of confining his evidence to the terms of the statement which the Tribunal had circulated. In the course of and after an uncontrolled and possibly uncontrollable tirade of un-notified material from Mr. Gilmartin, it became clear that the Tribunal had far more by way of documentation from and relating to Mr. Gilmartin and his allegations than had been circulated. Furthermore, Mr. Gilmartin expressly conceded that this un-circulated material might contain information inconsistent with what he said at the public hearing.
This development led to the first judicial review proceedings in which Mr. O’Callaghan and the Tribunal have been involved, 2004/324 JR. As a result of these proceedings, and further proceedings in the High Court, the applicants are now in possession of a considerable volume, though not all, of the material previously withheld by the Tribunal. Having seen this material, for the first time, the applicants make a new case. Very broadly, they say that the nature and content of the withheld material is such that the Tribunal’s act in suppressing it gives rise to the reasonable inference of prejudgment of certain important matters, notably the credibility of Mr. Gilmartin. They further say that this inference is strengthened by other aspects of the history of the case, to be discussed below. The Tribunal very strongly deny this. They concede that they made a grave error in withholding from Mr. O’Callaghan and the other applicants the material which they now have as a result of the previous judicial review proceedings. But the Tribunal says that, now that the applicants have it, they can proceed to use it to cross-examine Mr. Gilmartin and to make further inquiries. They argue that the mistake which they (the Tribunal) made in withholding the material was of a legal nature; this has now been corrected; there is no reason why they should not now proceed to hear and reach conclusions upon what Mr. Gilmartin has to say about Mr. O’Callaghan and his associates.
Power to sit in private
The resolutions of Dáil Éireann mentioned above contain the following material:
And that the Tribunal be requested to conduct its inquiries in the following manner to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921-1998:
It will thus be seen that the resolution of Dáil Éireann envisaged “preliminary investigations in private” for the purpose of determining whether sufficient evidence existed in relation to particular matters to warrant proceeding to a full public inquiry in relation to them. It is indisputable that the portion of the Tribunal’s work carried out in private has gone far beyond that very restricted threshold issue. At the moment it is sufficient to say that amongst the things which occurred in private were interviews with people who are willing to be interviewed, the scrutiny of documents, the preparation of statements and, at least in one case, the preparation of an affidavit for a person who was intended to give evidence. In Mr. Gilmartin’s case, as noted above, there was also a considerable number of telephone conversations, some immensely long, on topics relevant to the work of the Tribunal. Written material prepared by him and his then Solicitor was also received in private session. An immunity from prosecution was procured for Mr. Gilmartin from the D.P.P. through the Tribunal.
The Tribunal has been dealing with Mr. Tom Gilmartin at least since 1998. This gentleman was at one time involved in assembling parts of the land which constituted the Quarryvale site in West Dublin. In the course of this he came to have dealings with Mr. Owen O’Callaghan and Companies controlled by him. The latter is a director of the two corporate plaintiffs in the present application. Mr. John Deane is a well known solicitor who has participated with Mr. O’Callaghan in certain property developments.
The business dealings between Mr. O’Callaghan and his associates and Mr. Gilmartin did not end to the latter’s satisfaction. As a result of this, as is quite clear from his evidence referred to below, Mr. Gilmartin bears a considerable animus against Mr. O’Callaghan and indeed against others who are not concerned in the present litigation. He has made allegations against those parties. All of these allegations are dramatic, and some of them are quite extraordinary. A number of them would clearly amount to breaches of the criminal law, if true.
The immediate background to the present action relates to the “Quarryvale 1” module of the Tribunal’s public sittings. These took place in March, 2004. It was preceded by the circulation in December, 2003 of and “Explanatory Memo re Rezoning Module”, a further Explanatory Memorandum of January, 2004 and an enormous “Brief” consisting of over 3,200 pages. The subject of the module was to be Mr. Gilmartin’s business dealings in Dublin between 1987 and 1990. The brief included a statement of Mr. Gilmartin more than half of which, in the form in which it was served on Mr. O’Callaghan, was blacked out or “redacted”.
Mr. Gilmartin’s oral evidence commenced on the 3rd March, 2004, and did not, as far as Mr. O’Callaghan was concerned, at all correspond to the statement which had been circulated. Mr. Gilmartin publicly abused Mr. O’Callaghan, calling him a crook and a blackmailer. He then proceeded to make eight entirely un-prefigured allegations. These are as follows:
Mr. Gilmartin was shown by counsel for the Tribunal a written agreement into which he had entered with Mr. O’Callaghan on the 31st January, 1989. This was signed by him and his signature had been witnessed by his solicitor. His previous complaint had been that the agreement did not contain all the terms actually agreed between himself and Mr. O’Callaghan, and on which they had shaken hands. In evidence, however, he said that the agreement which he was shown was not the agreement which he signed and that it had been falsified by Mr. O’Callaghan and his (Mr. O’Callaghan’s) solicitor so as to alter its terms.
That at their first meeting of the 7th December, 1988, Mr. O’Callaghan told him that he had just come from a dinner for the launch of the Lee tunnel and that he had had the line of the tunnel altered so as to suit a named site that he owned.
That one of the reasons why he had paid £50,000 to the then Minister for the Environment by way of a cheque in which he had left the payee blank was for the purposes of stopping the activities of Mr. O’Callaghan. He had not mentioned Mr. O’Callaghan in this connection in the redacted form of his statement, but had named others.
That Mr. O’Callaghan had given false information to the British Revenue which had resulted in Mr. Gilmartin being declared bankrupt.
That Mr. O’Callaghan had bribed a named councillor.
That the purchase by Mr. O’Callaghan of Mr. Gilmartin’s interests in a site at Balgaddy was the result of Mr. O’Callaghan holding him to ransom.
That Mr. O’Callaghan, with the connivance of a bank, stole Mr. Gilmartin’s money and used it to bribe councillors to block rezoning for the Quarryvale scheme.
That Mr. O’Callaghan had encouraged Mr. Gilmartin not to cooperate with the garda investigation into his allegations.
The extent to which these grave allegations transformed the case he was making against Mr. O’Callaghan is illustrated by recalling that the only allegation of which Mr. O’Callaghan had been put notice was a suggestion that he was present in Buswells Hotel, Dublin, in December, 1998, when, out of his hearing, a named councillor made a demand for a £100,000 of Mr. Gilmartin. He said he later had a conversation with Mr. O’Callaghan who, allegedly, made a remark consistent only with knowledge on his part of such a demand. The rest of what he said at the public sitting of the Tribunal was simply not in any way indicated in the statement given to Mr. O’Callaghan.
The Tribunal did not by counsel or otherwise prevent the making of these un-notified allegations. It is, however, fair to say that Tribunal counsel himself appeared surprised by the first mentioned allegation, to do with the agreement of the 31st January, 1989. When Mr. O’Callaghan denied that the document produced at the public sittings was the document which he signed, counsel remarked that Mr. Gilmartin had himself given the document to the Tribunal.
It was this very significant development – the making of multiple un-notified allegations by Mr. Gilmartin against Mr. O’Callaghan in a public sitting of the Tribunal – which has led to all the litigation and other developments which have followed. The detailed history of the events which immediately followed Mr. Gilmartin’s allegations is set out in the judgments of Geoghegan J. and myself in Mr. O’Callaghan’s earlier judicial review proceedings (2004/324 JR) which judgments were delivered on the 9th March, 2005. This case is now reported at  2 I.R. 32: the judgments are also available on www.courts.ie. I can only say that these judgments are essential reading for anybody wishing to understand the case now made by Mr. O’Callaghan. At the Tribunal, Counsel for Mr. O’Callaghan attempted as best he could to deal with these entirely un-prefigured allegations. For this purpose he sought disclosure of the withheld documents. Before this occurred, Mr. Gilmartin was cross-examined on behalf of another party and conceded that he had provided written and (recorded) oral material to the Tribunal over and above the statement which had been circulated. The Tribunal placed extraordinarily strict restrictions on cross-examination as to such material. Counsel was however permitted to ask whether Mr. Gilmartin had previously made statements to the Tribunal which contained material significantly inconsistent with the circulated statement. He answered “There is a good possibility there is”. The Tribunal absolutely closed down cross-examination on this issue beyond that point. They did so at public hearings at the Tribunal and, more formally, by a ruling delivered on the 24th March, 2004, which is set out in full in my judgment in 2004/324 JR. In substance, that statement relied on a principle of confidentiality to justify the withholding of documents.
Mr. O’Callaghan then sought judicial review of this decision. The High Court (O’Neill J.) granted this relief and his decision was upheld by this Court in March, 2005. The relief granted included a declaration that the course adopted by the Tribunal in denying access to documents, including information recorded and transcribed from Mr. Gilmartin by counsel, for the purpose of cross-examining Mr. Gilmartin amounted to a failure by the respondent to observe and protect Mr. O’Callaghan’s rights to fair procedures and to natural and constitutional justice.
After the Supreme Court decision the Tribunal disclosed certain further documents still, however, with significant redactions. The matter was remitted to the High Court to resolve disputes about undisclosed material. Further documents or portions of documents were disclosed following a further judgment of O’Neill J. It is the contents of the documents ordered to be disclosed which gives rise to the present proceedings. The applicants say, amongst other things, that the nature of the documents now revealed is such that their utility to a person, such as Mr. O’Callaghan, whose vital interests depended on contradicting Mr. Gilmartin, is blindingly obvious so that the previous decision of the Tribunal to withhold them from him can only give rise to a reasonable inference of prejudgment on its part of the issue of his credibility both in relation to specific topics and in general.
Before addressing this submission in detail (which will involve a consideration of some of the documents) it is necessary to consider the Tribunal’s stated policy, differently expressed at different times, in relation to the withholding of documents or portions of documents from persons represented before the Tribunal and Mr. O’Callaghan in particular. The purpose of this exercise is to allow assessment of the decisions to withhold in light of the Tribunal’s declared policies.
Policy of the Tribunal about withholding documents or information.
The Tribunal’s policy in this regard has been expressed in a number of different ways. The Applicants say that these are not consistent one with the other and that the Tribunal has altered its criteria for disclosure or suppression time after time in an attempt to justify what was done. The various formulations are as follows:
In the documentation accompanying the brief of documents for Quarryvale 1, redactions or omissions were explained as follows:
Please note that in some instances the Members of the Tribunal have directed that words, paragraphs or pages of statements and of documents furnished to the Tribunal be removed or blanked out. This has been done where the text is not relevant to the Inquiry at hand.
From this formulation it may be noted, firstly, that the withholding of documents was decided upon by the Members of the Tribunal and not (as apparently occurred in other modules) by counsel or other persons assisting them. Secondly, it may be noted that relevance “to the Inquiry at hand” is the sole criteria stated for the withholding of information. It appears that none of the criteria subsequently relied on were then in the mind of the Tribunal or, if they were, they were not then stated to the persons interested. The criterion quoted above was, accordingly, the sole criterion which could be in the minds of Mr. O’Callaghan or his counsel at the time when the oral hearings began. Not until the cross-examination referred to above, during which it was conceded that “there was a good possibility there were” inconsistent statements made by Mr. O’Callaghan in the possession of the Tribunal was there any hint that other considerations might apply.
In the days between Mr. Gilmartin’s making of his eight un-notified allegations and the 24th March, 2004, a number of statements were made by the Tribunal. These are summarised in my previous judgment to which reference must be made. However, they included for the first time in this module reliance on confidentiality as a ground of non-disclosure of relevant documents to a person attacked. So strongly was this relied on that counsel was not permitted to ask Mr. Gilmartin if he had any objection to the disclosure of his withheld material: the Tribunal stated that this was a matter exclusively for them. This ground was fully dealt with in the judgments in the earlier Judicial Review.
This ruling was, however, subject to an exception, also variously stated by the Tribunal at different times, but amounting to an assurance that material containing a “gross, glaring, or significant” (different adjectives were used at different times) inconsistency with what was said in evidence would be disclosed. It would, the Tribunal said, be wrong not to do so. At the hearing of the appeal in 2004/324 JR, it was confirmed that this would include an inconsistency arising by omission. No such material was in fact disclosed until after judgment in the previous judicial review.
In the Tribunal’s Solicitor’s affidavit in the earlier proceedings at paragraph 36, she conceded that the evidence of Mr. Gilmartin raised matters which had previously been advised to the Tribunal’s lawyers but justified non-disclosure on the basis that such material was “unconnected with the module of the current Inquiry”.
In a letter of the 26th September, 2005, which will be discussed below in another context, the Tribunal stated that the originally redacted material was concerned either with matters which would be the subject of public hearing in another module or with material which the Tribunal had “determined was not relevant to matters being enquired into in [the relevant] modules, which would not be the subject of the Tribunal’s Inquiry.”
There is a particular difficulty in relation to this rigid modularisation, especially in relation to matters which bear on Mr. Gilmartin’s credibility in general. As will be seen, the now disclosed material provides examples of this.
In the statement of opposition in the present proceedings the Tribunal appears to add a new criterion for disclosure by saying that, in considering whether there was a significant or glaring inconsistency requiring to be disclosed, that the Tribunal consider that for information to constitute such an inconsistency “.... it must go to the heart of the matter which was the subject of the witness’s evidence”. This appears to be a novelty by comparison to both with what the Tribunal said at the public hearing and with the position adopted at the earlier judicial review.
The material withheld
We have so far followed the proceedings of the Tribunal to the point where its members heard Mr. Gilmartin make extraordinarily damaging allegations against Mr. O’Callaghan and, to a lesser but still very grave extent, Mr. Deane, in open session. With one exception in relation to Mr. O’Callaghan, these allegations were wholly unnotified. But they were made in public and manifestly had to be responded to forthwith. From this response, and from material in the Tribunal’s possession emanating from Mr. O’Callaghan, it was clear that these allegations were hotly disputed. Their capacity to have the most destructive effect on the reputation and standing of Mr. O’Callaghan, Mr. Deane and the Companies with which they were associated was perfectly clear. It was also clear that the allegations depended substantially and in most cases wholly, on the credibility of Mr. Gilmartin. The latter had himself conceded that there might be, in the material he had given to the Tribunal, information inconsistent with what he was then saying.
The main thrust of the applicants’ case which alleges a reasonable apprehension of prejudgment against the Tribunal, is based on the nature of the documents which it had at that time, and which it withheld and continued to withhold from the applicants despite a specific request for their production. These documents must also be considered in the light of certain indications, and a formal ruling, given by the Tribunal between the 4th and the 24th March, 2004, after the existence of the statements other than that circulated had become clear.
The Tribunal’s criteria of March, 2004
Firstly, there is no doubt that the responsibility of deciding what documents were to be disclosed was wholly that of the Tribunal. When, as recorded above, counsel for another party asked Mr. Gilmartin’s consent to the inspection of prior statements the Chairman, the first-named respondent, said:
It is not a matter for Mr. Gilmartin to consent or not to consent to. It is a matter for the Tribunal to decide what documentation can be referred to.
In a further exchange the Chairman said, in a passage which is the origin of some of the phrases quoted above:
Any significant or glaring inconsistency between information furnished to the Tribunal on a confidential basis and compared to that furnished by way of a narrative statement or indeed in oral evidence would be brought to the attention of the Tribunal, and that is the extent to which we would have any cause to consider information already given by the witness .... the Tribunal would not conceal from interested parties information that would suggest that there is glaring inconsistency between an account given on a previous occasion privately to the Tribunal and one given publicly because that would clearly be wrong.
The formal ruling of the 24th March, 2004, is set out in my judgment in the first judicial review, at pp 49-51 of the Report.
The withheld documents
On the hearing of this appeal counsel for the applicants produced a list of twenty classes of withheld information. I did not understand this list, which was contained in the written submissions, to be disputed in itself, although of course the significance of certain of the material was hotly disputed. For the purpose of this hearing, however, it is not necessary to go into all of this material. Counsel for the applicants Mr. Paul Gallagher S.C. went through seven categories which he regarded as the strongest and very aptly conceded that if he did not succeed on the basis of these documents, this aspect of the case was not likely to be materially strengthened by the rest.
This material may be subdivided into two categories. The first is composed of material bearing directly on allegations made by Mr. Gilmartin in public sittings against Mr. O’Callaghan and/or Mr. Deane. The second category is composed of material which may or may not significantly involve Mr. O’Callaghan but is so serious, so dramatic, and/or so manifestly false that, it is alleged, the failure to disclose it deprived Mr. O’Callaghan and Mr. Deane of material of obvious utility in attacking Mr. Gilmartin’s credibility, as they had to do.
Most if not all of this second category of material relates to third parties and it is, in the main, material which the Tribunal has decided not to make the subject of public inquiry. Very properly, it was dealt with with great delicacy by both sides of the hearing of this appeal because of its manifest capacity unfairly to damage those parties. I propose to deal with it only in very general terms in this judgment. I shall later consider whether this aspect of the material – its potential to damage third parties – is itself a ground for withholding it from a person in the position of the applicants.
I now turn to consider certain material in the first category:
It will be recalled that Mr. Gilmartin denied that a contract shown to him by the Tribunal bearing the date the 31st January, 1989, and being an agreement between himself and Mr. O’Callaghan or the O’Callaghan interests, was in fact the document which he had signed. He said this although, as Tribunal counsel said, he himself had given the document to the Tribunal. In evidence, he stated that the document produced to him had been falsified by Mr. O’Callaghan and his solicitor, Mr. Deane, so as to alter its terms.
There is no need to emphasise the seriousness of an allegation of fraud and forgery (for that is what it indisputably amounts to) against a solicitor and a major businessman. This was an allegation of serious criminality. It would be utterly destructive of the reputations of both and of the career of the solicitor if it were accepted in the terms in which Mr. O’Callaghan made it. Judging from the record of the proceedings, the Tribunal itself took the allegation extremely seriously, secured the production of the solicitor’s file, required a statement from the solicitor and caused or permitted both the solicitor and Mr. O’Callaghan to be cross-examined at length on the subject.
At all material times, from a time long before the first making of this allegation, the Tribunal were in possession of two separate previous accounts of this document by Mr. O’Callaghan. In these, Mr. Gilmartin gave accounts wholly at variance with the allegations of fraud and forgery against Mr. O’Callaghan and Mr. Deane had been made.
The first of these is a transcript of an interview given by Mr. Gilmartin to Mr. Noel Smyth, solicitor, and which was later given by the latter to the Tribunal. In construing this and the next statement, it is necessary to distinguish carefully between the various solicitors who, at different times, acted for Mr. Gilmartin.
In the interview with Mr. Smyth, Mr. Gilmartin said:
I left it to [a quite separate solicitor acting for him in 1989] to complete the contract and we omitted, he drew up the contract and it was totally one sided including the final payment being subject to planning and when the zoning came up for this site to go in for rezoning ....
In 1998, almost five years before his public evidence to the Tribunal, Mr. Gilmartin had attended a meeting in Luton, England, with counsel for the Tribunal. Mr. Gilmartin was accompanied by two solicitors from the firm of Eugene F. Collins, who were then his solicitors. On this occasion Mr. Gilmartin was noted as saying, on the topic of why, as he claimed, the contract did not represent what was actually agreed:
.... and through the negligence of [the solicitor mentioned above, who was acting for him in 1989] the contract which Mr. Gilmartin actually signed provided that £1.35 million should be paid in October, 1989, and a further £1.35 million on the 31st January, 1990.
Accordingly, Mr. Gilmartin had made an allegation that the aspects of the contract which were unacceptable to him, because they were contrary to what had been agreed, were the result of falsification by Mr. O’Callaghan and Mr. Deane. But he had previously attributed the unsatisfactory aspects of the contract, not to falsification, but to negligence on the part of his then own solicitor. A more significant, glaring or gross inconsistency can hardly be imagined. It must be recalled that his allegations went so far as saying that the document produced was not the document he had signed, as a result of falsification. But the matter did not end there.
Mr. Gilmartin was specifically cross-examined on the question of why he had not made to the Tribunal in private session, by correspondence or otherwise, the falsification allegation he had made in public sitting. The observation of counsel for the Tribunal, quoted above, made it clear that he had not done so. But he claimed that he had in fact made the allegation:
.... I am reasonably certain that I told Mr. Hanratty and Mr. John Gallagher [both senior counsel to the Tribunal at the material time] that, and I told them that in Luton and I am reasonably sure I did.
Later on the same day he said
I did tell the Tribunal, I am reasonably sure I did get, but I may have omitted it in the statement.
It was then put to him that this allegation had surfaced for the first time in his evidence and he answered:
No, I told the Tribunal officials the full, complete statement of how Mr. O’Callaghan held me to ransom twice and how he managed to do it with the help of his, well honourable solicitor.
The effect of the cross-examination on this point was to allege that Mr. Gilmartin’s account was false, and was a recent invention. Under the Rules of Evidence which prevail in civil or criminal courts, a witness cross-examined along those lines can prove a previous consistent statement so as to rebut the cross-examiner’s allegation. The Tribunal is not bound by the ordinary Rules of Evidence, but it allowed Mr. Gilmartin to make this claim to have made a prior consistent statement and it would have been entitled to do so if what was said about the prior statement were true. I have to say that I simply cannot understand:
How, having permitted this grave allegation to be publicly made it did not disclose the prior inconsistent statements of which it was affirmatively aware. I am far from holding that the duty to disclose material is limited only to material which the Tribunal itself regards as containing inconsistencies which are significant gross or glaring. But even by that criterion this is material that required to be disclosed.
How the non-disclosure continued even after the witness had repeatedly stated that he had made the allegation previously to the Tribunal, thereby fortifying his credibility in the eyes of his listeners. This happened at a time when the Tribunal knew he had not done so, and that what he did say then was not consistent with what he said publicly in March, 2004.
How the Tribunal continued to withhold this statement and asserted their entitlement to do so in the High Court and the Supreme Court. This latter point may have a particular relevance in view of the claim in the present proceedings that the Tribunal has made no final decision as to the significance of any material or the credibility of any witness.
The Tribunal says, quite accurately, that it took steps to obtain information from the applicants about this allegation. But that in no way explains the non-disclosure by them of the prior inconsistent statements: to find the Tribunal’s answer to that one must turn to its general defence in the present case, which will be considered below. I have no doubt that a failure to discover information of this kind in a civil action based on the same facts, or to disclose it in a criminal prosecution, would be gravely wrong. The Tribunal correctly says that it is not in the position of a party to litigation and denies that it is under any continuing obligation of disclosure or discovery as a party to such litigation would be. This contention is addressed below.
Mr. Gilmartin’s account of the Buswells Hotel meeting, summarised above, will be recalled. The salient features were that the meeting had taken place on the 28th December, 1988. Mr. Gilmartin said Mr. O’Callaghan demanded a meeting on that date. Tribunal counsel suggested to him that the date did not very much matter, whether it was the 28th December or the 28th February but he said “I am quite certain it didn’t take place any other day than 28th December”. Mr. Gilmartin was asked if he was in any way uncertain about his recollection of events on that day to which he replied “No, I am absolutely certain”.
Mr. Gilmartin claimed that when he was alone with a named councillor in the bar of Buswells hotel, and Mr. O’Callaghan, Mr. Deane and another person were in the bar but not in earshot, the councillor requested £100,000 from him. He then said that when he left the bar he was followed by Mr. O’Callaghan who asked him “Did he tap you?” He said that he responded “What do you think?”.
There was no ambiguity about what the words attributed to Mr. O’Callaghan meant. According to Mr. Gilmartin “I understood that as if he had tapped me for money, asked me for money”.
The later disclosed documents reveal that Mr. Gilmartin gave an account of this meeting on the 30th September, 1998, to John Gallagher S.C., Pat Hanratty S.C. and Desmond O’Neill B.L. Counsel noted the meeting and on this topic the record is of Mr. Gilmartin speaking as follows:
I met [the councillor] in Buswells hotel one day in January, 1989 at 4.30pm. I met [a member of Dáil Éireann] the following day. On Wednesday 29th January, 1989, I met [the councillor]. O’Callaghan was standing at the bar with [a named architect]. I was told I had to meet councillors and this was arranged.
Apart from the variation as to the date of the meeting, discussed below, this note does not mention a demand for £100,000 and does not mention the remark attributed to Mr. O’Callaghan which is a damning one. It also does not mention the third person, another Dáil Deputy, who was said in evidence to be in the company of Mr. O’Callaghan and the architect.
It transpires that the salient allegations, about being asked for money and Mr. O’Callaghan’s remark, were first made in a statement made by Mr. O’Callaghan on the 25th May, 2001, almost three years after his (apparently) first mention of the meeting, when he failed to mention these topics at all.
The significance of this for cross-examination, as to the facts and in relation to credibility, is manifest. Even the least apparently significant contradiction – that between the 28th December and the 28th January – is important. It is in the nature of things unlikely that the parties implicated by Mr. Gilmartin would be able to say where they had been on a date in January some fifteen years previous to Mr. Gilmartin’s evidence. But Christmas is a special time and people may have long standing habits as to where and with whom they spend the season. Indeed, there was cross-examination of various witnesses as to the likelihood of their having been at such a meeting over the Christmas period. Tribunal counsel attempted to suggest that the actual date might not be very significant:
.... it wouldn’t matter very much in one way whether it took place on the 28th December or 28th February – Do you follow?
But it is the other contradictions that are of salient importance.
In submissions on this point the Tribunal emphasised the possible inaccuracy or incompleteness of the notes of the meeting in 1998, at which Mr. Gilmartin gave an account of the Buswells Hotel affair which did not implicate Mr. O’Callaghan. They were, said Mr. Michael Collins S.C., “jottings”. They have, however, the appearance of a full record. I refrain from attaching the text of the note to this judgment only because of material about other parties in it. The Tribunal also submitted that the inconsistency as to the date was not of great importance because the fact of the meeting was not in dispute. This submission ignores the two salient allegations and, with respect, the date of the meeting is also important because if its inaccuracy could be demonstrated other things might follow. For example, Mr. Gilmartin had apparently given to the Tribunal a diary showing an appointment with the councillor on the 28th December, 1988: if this were false an obvious line of inquiry would be opened up. Tribunal counsel’s own question, quoted above, clearly shows uncertainty, at least, as to the December date.
But the present issue is not as to how a cross-examination based on full information might have ended, but as to the fact that, even by the Tribunal’s own criteria, here was a significant contradiction, It was never disclosed, despite a specific application for its disclosure, until after the Supreme Court hearing at which its disclosure (together with all the other withheld documents) was strongly resisted. I cannot understand why it was never disclosed prior to the order of this Court and in this regard would repeat, with the necessary alterations, the comments I have made above as to the non-disclosure of the prior inconsistent statements about the allegedly altered contract.
I would add that a reading of the transcript suggests that the Tribunal took this allegation seriously and devoted considerable time to it. In the course of this, an observation was made by one of the members of the Tribunal which is independently relied upon by the applicants here. I will not however interrupt the survey of the withheld documents to consider this allegation but will return to it briefly later in this judgment.
Finally, it should be recalled that, on the hearing before this Court of the appeal in the earlier judicial review proceedings, counsel for the Tribunal specifically said that in referring to “significant gross or glaring” inconsistencies, the Tribunal had in mind, inter alia, inconsistencies arising by omission. I understand that to be a failure to state a fact, subsequently alleged in evidence, at an earlier time when one might expect it to have been stated. It has not been contended that these allegations were in fact made to counsel at the 1998 meeting but for some reason not recorded. On other topics, however, counsel’s recollection of meetings have been put in evidence.
Amongst the most memorable allegations made by Mr. Gilmartin was one about a visit made by him to Leinster House in February, 1989. He described being led into a room where he found the then Taoiseach and a number of Ministers. With one of those present in particular he had a brief conversation. As he was leaving, an unidentified man allegedly approached him in the corridor and suggested that he make a payment of £5 million, giving him a piece of paper which he said had the number of a bank account in the Isle of Man written on it. Mr. Gilmartin said that he rejected this approach in colloquial terms. As he walked away the man tapped him on the arm and said “You could end up in the Liffey for that statement”. When he described this in evidence he was asked about the manner of his leaving Leinster House and he mentioned only one person by name as having been there as he left, a man called Walsh.
Neither in the opening of this module by counsel for the Tribunal nor in the examination of Mr. Gilmartin nor in questioning any other of the numerous witnesses called on this topic was any mention made of Mr. O’Callaghan in connection with Mr. Gilmartin’s visit to Leinster House.
Notwithstanding this, amongst the documents now disclosed is a note of a telephone conversation of the 3rd June, 1999, between Mr. Gilmartin and Pat Hanratty S.C., then one of the counsel to the Tribunal.
According to Mr. Hanratty’s note what Mr. Gilmartin then said about the visit to Leinster House is as follows:
However, at one stage he saw Albert Reynolds talking in an alcove to OOC [Owen O’Callaghan]. TG [Tom Gilmartin] had decided to leave and saw this on his way out. OOC called him back and asked where he was going. TG said he was fed up with him and his gangster friends. OOC said that neither he nor any Unionist would put a foot on Quarryvale
It will be clear that this inconsistency is of a kind which is the mirror image of that identified on the Buswells Hotel issue. There, the withheld document showed that Mr. O’Callaghan had first given an account of events which did not implicate Mr. O’Callaghan, and then proceeded to implicate him later on. Here, the withheld documentation shows that Mr. O’Callaghan had originally been placed in Leinster House, in the company of a very prominent politician, at a time when an outrageous demand had allegedly just been made of Mr. Gilmartin. The conversation which Mr. Gilmartin then reported between them speaks for itself, in the context of the other evidence he gave about what was said and done when he was in Leinster House.
This allegation simply dropped out of sight. A number of very prominent witnesses were called about the visit to Leinster House, including Mr. Reynolds himself. It was never suggested to any of them, or to Mr. O’Callaghan himself, that he had been present in Leinster House on the occasion in question.
This was the second allegation by Mr. Gilmartin that Mr. O’Callaghan had been nearby, but not physically present, when a demand for a large sum of money had been made by way of corrupt payment by another person. On each occasion, there was attributed to Mr. O’Callaghan a remark consistent with knowledge of what, allegedly, had just occurred. But for whatever reason, in this instance the allegation was simply not pursued, insofar as it related to Mr. O’Callaghan.
It is not possible to think of any reason for the non-pursuit of this allegation other than that the Tribunal did not consider it credible. The £5 million demand was clearly within its terms of reference and was regarded as a significant matter, as can be seen from the transcripts.
The fact that an allegation made by a witness is regarded as untrue, or incapable of being supported in evidence, is emphatically not a reason for denying to a person against whom the same witness is making other serious allegations, knowledge of the fact that he has also made a different, implausible or insupportable, allegation. If this allegation is untrue it plainly speaks to Mr. Gilmartin’s accuracy or credibility or both.
The Tribunal submits that it was of the view that the occasion referred to in Mr. Hanratty’s note of what Mr. Gilmartin said in June, 1999 related to a different meeting to that described as happening in Leinster House in February, 1989. This would indeed have been a remarkable reading of the memorandum in question and one which it is difficult to believe could have long survived having regard to the importance of the occasion upon which the £5 million was allegedly demanded. This importance is clearly established in the Tribunal’s records.
Mr. Noel Smyth, in his recorded interview with Mr. Gilmartin described the meeting after which the £5 million demand was alleged made as the “.... famous meeting in the Dáil”. Mr. Gallagher SC, in opening the Quarryvale I Module on the 3rd March, 2004 just a few days before Mr. Gilmartin’s evidence, plainly and unambiguously said that the demand for £5 million pounds was allegedly made immediately after Mr. Gilmartin’s visit to the room where he met, or at least saw, a number of ministers. (Day 455). In Mr. Hanratty’s memorandum of a telephone conversation with Mr. Gilmartin of the 3rd June 1999, he recorded:
TG then referred to the meeting in Dail Eireann to which he was brought by Liam Lawlor. He was adamant that this took place on the 1st February 1989. There is a record of it in Tom Gilmartin’s 1989 diary.
Mr. Gallagher’s opening statement gave the background to the meeting as a conversation with Mr. Lawlor and said that Mr. Lawlor took him into the Dáil and then took him into the room where the ministers were.
Mr. Hanratty’s memorandum went on to describe Mr. Gilmartin’s attendance in the room where the ministers were and his conversation with one of those present and went on to say:
After the meeting a number of other things happened which are described in previous memos. However, at one stage he saw Albert Reynolds talking in an alcove to OOC.
The same memorandum then described his conversation with Mr. O’Callaghan as set out above.
I am driven to the conclusion that there is no scope whatever for ambiguity on the following propositions:
Mr. Gilmartin said that the meeting after which the £5 million pounds demand was made occurred on the 1st February 1989.
Mr. Gilmartin said that the demand was made after he had left the room in which there were several ministers with one of whom in particular he had a conversation.
Mr. Gilmartin said that his Dáil encounter with Mr. O’Callaghan happened after the meeting with the Ministers just described and just after the €5 million demand, as he was leaving Leinster House.
I am therefore wholly at a loss to understand how any person acquainted with the detail of Mr. Gilmartin’s accounts could seriously have entertained the view that the alleged conversation with Mr. O’Callaghan in Leinster House was attributed by Mr. Gilmartin to any day other than the day on which the £5 million pound demand was made, which was the day on which he had been brought into see the Ministers and spoken to one of them, which was the day on which he had been brought to Dáil Éireann by Mr. Lawlor, which was the 1st February, 1989. Of course, anyone can become momentarily confused about detailed matters, even those with which he is perfectly familiar. But any such confusion could only have lasted a matter of moments. It could not have lasted for the days or weeks necessary for the confusion to be the basis, as alleged, of the refusal of the disclosure of the original account. Still less could it have been shared over so long a period by the number of people necessary for it to have been the basis for the non-disclosure – the three Tribunal members and their large legal team. I am driven to conclude that the account given, on a hearsay basis, of the reason for the non disclosure of the original document [by Ms. Susan Gilvarry in her affidavit of the 23rd January, 2006] is, on the balance of probabilities, quite inaccurate. I attribute this to lapse of time, which has clouded the Tribunal’s memory.
The reason why the making of an inconsistent false or dubious allegation requires to be disclosed to a person confronted with another allegation by the same accuser is quite obvious. Depending on the context, the making of a previous false or inconsistent allegation may indicate express malice against the victim of that allegation or, if the subject of the earlier allegation was a different person, may indicate a generalised malice or a tendency to lie or to fantasise. In Wall v DPP  IECCA 140, Ms. Wall had been sentenced to life imprisonment (and a Mr. McCabe to twelve years imprisonment) for rape. The conviction was set aside by consent, and later deemed to have been a miscarriage of justice under the terms of the Criminal Procedure Act, 1993. This happened for a number of reasons, including the failure to disclose that an alleged eye witness to the rape had herself made dubious allegations of rape against another person some years earlier. Subsequently, the witness admitted that the whole of her evidence was an invention, put forward because of a grievance felt against Ms. Wall who had been a teacher of the alleged victim and the witness. But, in the absence of information (the previous false allegation) which might have undermined the credibility of the witness, her false evidence had stood up to scrutiny at trial.
I wish to emphasise that the manifest utility of evidence of previous false or inconsistent allegations is a matter of ordinary experience, by no means confined to the context of a criminal (or indeed a civil) trial. It is a matter of natural justice and elementary fair procedures that a person accused of very serious things in a public forum be given all relevant information in the possession or at the disposal of the enquiring body for use in an attempt to vindicate himself. The Tribunal, to put it mildly, seemed unimpressed by this basic proposition.
As has been seen above, the basis of Mr. Gilmartin’s animus against Mr. O’Callaghan and his associates was a belief that the O’Callaghan interests had overreached him with the assistance of his bank and put him into a position where he was compelled to sell lands, the development of which he had hoped would be very profitable to him. It was, apparently, on the basis of this belief that he called Mr. O’Callaghan a crook and a blackmailer.
Mr. Gilmartin told his then solicitor, Mr. Noel Smyth, of a conversation which he had with Mr. Pat Hanratty, a Senior Counsel to the Tribunal until 2001. He did this in the course of a long interview with Mr. Smyth which was recorded by the latter. The record of this conversation, both written and taped, was then given by Mr. Smyth to the Tribunal. It appears that Mr. Hanratty had, alone or together with other Tribunal lawyers, up to thirty private conversations with Mr. Gilmartin, between face to face interviews and telephone conversations.
Mr. Gilmartin said to Mr. Smyth that Mr. Hanratty had said that his case against Mr. O’Callaghan and his associates was:
.... that strong that they would have to open it again
Mr. Hanratty is also alleged to have said:
.... [T]hat they will prove fraud against O’Callaghan and the bank. He said that they will prove it. But I don’t know whether he is just saying it to get me talking.
Mr. Smyth’s transcript of the same conversation emerges as follows:
Hanratty – he was trying to tell me that my case was that strong that I would have to open it again.
I wouldn’t go against his view. I think that the answer is that if any revelations come out of this, it could well be something you would have to look at.
They said they would come forward against O’Callaghan and the bank. I don’t know if he is just trying to get me talking.
This conversation with Mr. Hanratty is said to have taken place on the 20th May, 1998.
The significance of this conversation is very great. If it actually took place as described by Mr. Gilmartin then it plainly provides a motive for the latter to encourage and assist the Tribunal towards a finding of fraud against Mr. O’Callaghan so that the transactions which ended so badly from Mr. Gilmartin’s point of view might be reopened. But if the conversation did not take place as alleged, the significance of Mr. Gilmartin’s statement is at least as great. It means that Mr. Gilmartin had, in his own mind, attributed something to Mr. Hanratty S.C. which the latter had never said. He had, in other words, invented it.
In its opposition to the present application for judicial review the Tribunal have stated for the first time that it has been informed by Mr. Hanratty S.C. that at no time did he say any such thing. This denial was put on record on the 23rd January, 2006. Prior to that date, the Tribunal had dealt with this matter in a neutral fashion by saying that if Mr. Hanratty had said such a thing it was at a time when the Tribunal were attempting to secure Mr. Gilmartin’s evidence for the Tribunal: he lived abroad and could not be compelled to attend. The Tribunal did not assert the falsity of Mr. Gilmartin’s statement in this regard for a period of some eight years after it was made. Subsequent to the receipt of Mr. Gilmartin’s statement by the Tribunal, Mr. Hanratty had numerous interviews with Mr. Gilmartin and, judging by the record of these interviews no contradiction or correction of Mr. Gilmartin’s statement was made.
On the hearing of this appeal the Tribunal invited the Court to accept implicitly Mr. Hanratty’s denial and I would unhesitatingly do so. This has the consequence that it must be accepted that Mr. Gilmartin invented an important statement which in fact was never made at all. He invented it, presumably, because he wished to believe that the Tribunal would establish fraud against Mr. O’Callaghan thereby allowing him to reopen his long running dispute with the very person against whom he was making grave allegations.
As with the other documents discussed in this section of the judgment, the interview with Mr. Smyth was not disclosed until after the earlier judicial review proceedings. But even after disclosure the salient fact that what Mr. Gilmartin was said was false was not itself disclosed until January, 2006 and this disclosure occurred only in the context of the Tribunal’s defence to the present proceedings. In other words, if the present proceedings had not been taken Mr. O’Callaghan would have found himself back before the Tribunal without the knowledge that this statement was false.
The ability of Mr. Gilmartin to invent important conversations is of particular relevance because of a passage in the cross-examination which took place in March, 2004. Dealing with another allegation made without notice by Mr. Gilmartin, relating to the Lee Tunnel, counsel for Mr. O’Callaghan put it to him that his account of a meeting in December, 1988 was “a creature of your own imaginings”. To this Mr. Gilmartin made the following remarkable reply:
No. No, there is things, which was in my imagination that does exist that I invented, and if you would like to know about them I will tell you. But they were creatures of my imagination, but this definitely isn’t. I don’t need to reduce myself to petty little gossip.
The Tribunal’s submission on the issue of the alleged statement of Mr. Hanratty was to say, as outlined above, that it had been informed by Mr. Hanratty that he had said nothing of the kind. But this simply fails to address the salient point: Mr. Gilmartin’s account of the conversation is very important whether it is true or not. Indeed, it is probably more important on the basis that it is false: it is evidence, which the Tribunal must accept that Mr. Gilmartin is capable of invention, of hearing what he wants to hear and recalling that which he wants to recall.
Another un-notified allegation made by Mr. Gilmartin to the Tribunal related to the Lee Tunnel. Counsel for the Tribunal had asked Mr. Gilmartin about Mr. O’Callaghan’s “connections”. Apparently by way of illustrating those connections Mr. Gilmartin gave a circumstantial account of a conversation with Mr. O’Callaghan on the 7th December, 1988. He said that on that occasion Mr. O’Callaghan told him that he had just come from a dinner for the launch of the Lee Tunnel and that he had had the line of the tunnel altered so as to suit a named site (the Mahon site) that he owned. Counsel for the Tribunal, Mr. John Gallagher S.C. then said “You haven’t told us about this before”. Later, when counsel for Mr. O’Callaghan attempt to cross-examine on the basis that the decision to construct a tunnel was not made until 1991, work did not commence until 1995 and the tunnel did not open until 1999, another counsel for the Tribunal, Ms. Patricia Dillon S.C. objected saying:
I am not aware of any documentation furnished at the Tribunal in relation to the matters presently being cross-examined by my friend (i.e. Mr. Sreenan S.C., counsel for Mr. O’Callaghan). If there is any such documentation, and I presume there is seeing as he is being so precise about the dates, it is subject to the same rules of the Tribunal; and again this is not something that has been furnished to the Tribunal and is, I think, comes within the four walls of the previous ruling .... none of this material has been furnished at the Tribunal. And it is only the Tribunal who decides what materials will be circulated .... the Tribunal should have been provided with an additional statement from Mr. O’Callaghan that deals with this matter that could be circulated .... in other words there are no surprises here.
To this Mr. O’Callaghan’s counsel said:
Chairman I am not referring to documentation but I think this objection is quite misconceived. Mr. Gilmartin was the person who introduced this piece of evidence, it wasn’t in his statement. Ms. Dillon has not provided us with an additional statement of Mr. Gilmartin’s evidence, it seems one rule applies to Mr. Gilmartin and one rule applies to those who wish to cross-examine; on a large number of occasions he introduced additional evidence, I am not referring to any document, if I was referring to a document I would have complied with the Tribunal’s rules – provided it to the Tribunal. I am simply putting facts to the witness.
This is a very significant exchange which will be further discussed later in this judgement. But its relevance for the present purpose is that two counsel for the Tribunal, Ms. Gallagher and Ms. Dillon, asserted that “You [Mr. Gilmartin] haven’t told us anything about this before” and “I am not aware of any documentation furnished at the Tribunal in relation to the matters presently been cross-examined by my friend”. Both of these comments relate to the Lee Tunnel allegation.
In fact, based on the documentation disclosed as a result of the earlier judicial review, Mr. Gilmartin had on the 25th November, 1999, told Mr. Hanratty S.C. in the course of a telephone conversation:
.... [T]hat OO’C [Owen O’Callaghan] had more power than people realised. The original plan for the Cork tunnel was altered and rerouted so that it came out on land owned by OO’C. CJH was behind this change.
Mr. Gilmartin is then recorded as saying “.... that we can easily verify this”.
In the 4½ years between this conversation with Mr. Hanratty and Mr. Gilmartin’s oral evidence, the Tribunal, according to the affidavit of its solicitor “did not investigate that allegation at that time”.
This is bewildering. There is no assertion that the Tribunal investigated the allegation at any other time, and it certainly did not form part of the matters of which Mr. O’Callaghan was put on notice. It came within the time frame of the Quarryvale I module.
On the face of it, this is another example of the Tribunal’s practice of putting forward certain allegations while withholding the information that the accusing party has made different allegations which are, apparently, lacking in credibility. But in this case there is the added element that counsel for the Tribunal stated publicly that Mr. O’Callaghan had not told the Tribunal anything about this allegation, which is manifestly not true.
The reason given for this by the Tribunal is that “Counsel did not immediately realise” that the Cork tunnel and the Lee tunnel were the same thing. This, on any account, is an extraordinary confusion, and it is not said that it extended to the Tribunal itself, or to any of the other (numerous) Tribunal lawyers. It is not a piece of confusion that could have lasted any time at all since in fact there is but one tunnel that could conceivably be in question. It is now known as the Jack Lynch tunnel. But given that the confusion did apparently exist in the mind of counsel examining Mr. Gilmartin, it is extraordinary that in the very fraught discussions and questioning that ensued on the topic it was not corrected. This document too was withheld until after the first set of judicial review proceedings.
The next significant instance of withheld documentation related to another allegation which Mr. Gilmartin made without notice, and of his own motion, at the public sittings, but later withdrew.
It will be recalled that amongst the most significant allegations was that relating to an alleged demand for a payment of £5 million made by an unidentified person in Leinster House. After this allegation had been made, counsel for the Tribunal questioned Mr. Gilmartin as to who he had told about this. He listed a number of persons. At the beginning of a subsequent day’s hearing he stated, without being asked, that he had made:
.... a notable omission, from a question asked by Mr. Gallagher as to who I told about the visit to the Dáil .... I did inform Mary Harney at a – it was a house warming party in Dalkey and I told her about what was going on. I had just forgotten. That’s all, thank you.
The Chairman then requested a supplementary statement about this allegation. It was not revealed that, at that time, the Tribunal were in possession of a note by Mr. John Gallagher S.C., dated the 3rd October, 2002. This records that he had received a telephone call from Mr. Hanratty S.C., who had left the Tribunal in 2001, to inform him that Mr. Gilmartin had said that he had met Mary Harney at a party hosted by a named person in Killiney “quite a few years ago” and that he had told Mary Harney at that time “what was going on”.
When this note was disclosed, as a result of the earlier judicial review proceedings, the name of the person in question was redacted. As a result of a further hearing before Mr. Justice O’Neill in July, 2005 this redaction, and another to be discussed below, was removed.
The Tribunal also had in its possession, but did not disclose, a memorandum of Mr. Hanratty of the 28th June, 2000. This recorded a telephone call from Mr. Gilmartin to Mr. Hanratty in which the former said that he had received certain information from a friend of his on another topic and that it was in his friend’s house that Mr. Gilmartin had met Mary Harney at a party. There was no allegation about having told her “what was going on”. When the redaction of the names was removed by O’Neill J. it transpired that in the earlier statement of the 28th June, 2000, in which there was no suggestion of any disclosure to Ms. Harney, the host of the party in question was named. In the later statement, where there was an allegation of having told Ms. Harney what was going on, the party was said to have been in Killiney and was given by another named person with the same initials. While one can easily understand the confusion of two similar names, the distinction is a vital one, because, as it transpired, the party at which he had actually met Ms. Harney happened before the alleged events in Leinster House.
This salient fact became clear to Mr. Gilmartin or his advisers in the period after he had made the allegation about having disclosed “what was going on” to Ms. Harney. On the 24th March, 2004, Mr. Gilmartin read a statement to the Tribunal as follows:
In my evidence to the Tribunal, I told the Tribunal that I had told Ms. Harney about my visit to the Dáil. However, having reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and the Ministers in Dáil Éireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that evidence to the Tribunal, I may have been confused with another house warming party which also took place in Dalkey a year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms. Harney was not present at the second house warming.
Therefore, Ms. Harney was not one of the people that I told about a meeting with the then Taoiseach and the Ministers in the Dáil and about the demand made for £5 million.
The Tribunal’s reaction to this very significant withdrawal of a very significant allegation was simply to say “Thank you very much”. No attempt was made to explore how so grave an allegation was made in unqualified terms, after time for thought, when it was in fact quite false.
In my judgment in the earlier judicial review, given at a time when the Court had not seen the withheld documents, I commented on the above chain of events as follows at pp 42 – 43:
It is noteworthy that the notice party’s [Mr. Gilmartin] change of mind on this important matter was caused by the discovery by the notice party or his advisers of a fact in direct contradiction to the evidence he gave. This was that the party at which he had said he had met Ms. Harney actually took place prior to the date of the meeting which he alleged occurred in Dáil Éireann. It is also noteworthy that the notice party completed his statement and his initial evidence without mentioning Ms. Harney as amongst the people he had told of this truly dramatic alleged demand but he had subsequently become so convinced that he had in fact told her that he interrupted the proceedings on another day to make that point.
Having now seen the withheld documentation, further questions arise. Why were the previous statements in the possession of the Tribunal not immediately disclosed at least when the allegation was publicly made? Furthermore, even after the allegation had been withdrawn, they continue to be withheld, thereby frustrating any detailed inquiry as to how precisely Mr. Gilmartin had come to convince himself that something had happened when in fact it had not. This is a question vital to his accuracy and credibility generally. Still further, when the documents were compelled to be disclosed in the previous judicial review the Tribunal redacted the names of the two individuals, thus foreclosing further inquiry on the point.
It is clear from the terms that Mr. Gilmartin’s retraction (“Mary Harney was not one of the people that I told about a meeting with the then Taoiseach and the Ministers in the Dáil and about the demand made for £5 million”) that his earlier reference to “what was going on” related to the demand for £5 million.
Accordingly, I have difficulty in understanding the Tribunal’s submission on this topic, that there was no “explicit reference” to the “£5 million demand in the memoranda of the conversations with counsel”. It was plain from Mr. Gilmartin’s allegation that he was adding the name of Ms. Harney to those whom he had told about “the visit to the Dáil” where that demand was made. There was no other mention of any meetings with Ms. Harney in the disclosed documentation. The Tribunal also says that it was not clear to it whether one of the attendances by counsel recorded a statement by Mr. Gilmartin or an observation by counsel. This is impossible to understand as the earlier attendance states “TG said ....” and the later one states “John Gilmartin says”. Since the memorandum is of an account given by one Tribunal lawyer to another of a conversation with Mr. Tom Gilmartin, it is clear that the Christian name is an error. It is clear, in my view, that none of the statements attributed to Mr. Gilmartin in those memoranda could reasonably be construed as observations by counsel.
This is quite clearly a significant contradiction which was undisclosed.
Other withheld material
I turn now, briefly, to other classes of withheld material. In the case of this category of document, it is not desirable, for the reasons set out at the start of this section of the judgment, to go into any great detail. This is principally in the interests of third parties and their families. It must, however, be recorded in general terms that Mr. Gilmartin also at different times alleged that Mr. O’Callaghan connived at the appointment of an important public servant to a position of significance in his own interest; that three well known persons received bribes from Mr. O’Callaghan and that these were lodged into offshore accounts in various named places: that the “demise” of a deceased former office holder “was brought about indirectly by Owen O’Callaghan”, and that a named solicitor and other named parties were instrumental in seeking the resignation of another holder of public office in return for a large money payment. Only in the case of the latter allegation is there evidence of any level of investigation of these allegations, and that procured a denial from the solicitor allegedly involved.
This concludes the survey of undisclosed documentation on which the applicants principally rely.
Significance of the foregoing.
The preceding section of this judgment sets out in perhaps tedious detail examples of statements by Mr. Gilmartin to the Tribunal or its counsel which have been withheld by the Tribunal from Mr. O’Callaghan, and apparently from other people who are the subject of allegations from Mr. Gilmartin. I shall shortly turn to the general justification advanced by the Tribunal for what it did. But before doing that I intend to consider the general effect of what was done on a person seeking to defend himself against allegations by Mr. Gilmartin.
The statement of Mr. Gilmartin served on Mr. O’Callaghan represented only a tiny part of what the former had said to the Tribunal. In part this was due to the rigid modularisation adopted by the Tribunal, on which I will comment below. But it was also due to a positive decision by the Tribunal to withhold aspects of what Mr. Gilmartin had told them, even where the withheld material was directly in conflict with an allegation of his into which they were going to inquire. A striking example of this was the withholding from Mr. O’Callaghan of the earlier account of the Buswells Hotel event, which did not make any allegation at all against him. On the hearing of this appeal, counsel for the Tribunal said that they regarded the earlier material as being “of marginal importance”.
The Tribunal were thus, in March, 2004 presenting a witness (Mr. Gilmartin) whose evidence they intended to be limited to that small part only of what he had told them that they wished to present at that sitting. This plan, whatever its intrinsic merits or demerits, became impossible to follow when Mr. Gilmartin made multiple unscripted allegations against Mr. O’Callaghan. The Tribunal did not stop him from doing this.
The Tribunal then had to consider a transformed situation. It had ample time to do so between Mr. Gilmartin’s direct evidence and the eventual ruling of the 24th March, 2004. It decided, for reasons discussed below, to make absolutely no further disclosures to Mr. O’Callaghan even though it knew that it had in its possession information which in some cases was directly contradictory of allegations made and in other cases information which gravely impugned Mr. Gilmartin’s credibility.
One has therefore to consider two separate decisions which the Tribunal made in relation to the withheld documentation. The first, taken at some stage before the circulation of the “brief” for Quarryvale 1 in January, 2004, was to delete certain material on the grounds of irrelevance. No other ground was relied upon for withholding documents at that stage. The second and quite separate decision was to withhold material which manifestly related to allegations made by Mr. Gilmartin in his evidence in March, 2004 or related to his credibility which was then (if not before) manifestly a central issue for the Tribunal.
It is of great importance to note that the Tribunal says that material not circulated to those involved, as well as material relating to allegations which do not proceed to public hearing, would be entirely excluded from its considerations and that it will have no regard whatever to it at any state of its deliberations. This has the consequence, for example, that in considering Mr. Gilmartin’s allegation about the falsified contract, the Tribunal would have paid no attention whatever to the fact that he had earlier attributed the deficiencies in the contract, not to falsification by Mr. O’Callaghan and Mr. Deane, but to the negligence of his own solicitor. It would simply have ignored the fact that he had advanced an inconsistent account. Similarly, in assessing the credibility of his allegations which proceeded to public hearing it would entirely ignore improbabilities or even impossibilities in allegations which the Tribunal itself had decided not to bring to public hearing.
The applicants’ case is in a large measure based on this proposition: that a rational inference from the Tribunal’s two decisions to suppress evidential material of the sort exemplified above is that there now exists reasonable grounds to apprehend that the Tribunal have prejudged the issues to which that material relates. In order to assess this contention it is necessary now to turn to the Tribunal’s account of the reasons for what it did.
Substantive answer of the Tribunal
The Tribunal now accepts “that the approach which it took to the disclosure of documents prior to the decision in O’Callaghan v Mahon Tribunal 2004/324 JR was incorrect”. But it says that the mere fact that it proceeded in error is not sufficient to demonstrate a reasonable apprehension of bias: “The fact that it was wrong in its assessment of what was required by fair procedures cannot itself form the basis of a reasonable apprehension of bias by the applicants”. Moreover it says that its previous approach, though wrong, was not unreasonable and was adopted bona fide. It further submits that “the opportunity for cross-examination of Mr. Gilmartin is now there” (emphasis added). It says that, as a result of the earlier judicial review proceedings, “the applicant has now obtained all the documents sought by him to enable him to complete an effective and unhampered cross-examination of the party making allegations against him .... it is significant that the first-named applicant is now in the position he sought to be in and can avail of the opportunity to vindicate his good name against any false allegations which are alleged to have been made”.
Accordingly, the substantive answer of the Tribunal to the merits of the applicants’ case may be summarised as follows:
The Tribunal undoubtedly made a significant error in the period leading up to the public hearings of March, 2004 by misconceiving what the requirements of natural duty were in relation to making a person against whom Mr. Gilmartin made allegations aware of previous statements by him in the possession of the Tribunal. But this error was a bona fide one and was not unreasonable in the light of previous case law. In any event, and most significantly, it can now be rectified because, as a result of the previous judicial review proceedings Mr. Gilmartin now has precisely what he asked for in March, 2004: Mr. Gilmartin’s previous statements on the topic of the allegations he made. It is true that he had to have recourse to the High Court to get this information, and subsequently to defend the decision in his favour against the Tribunal’s appeal to the Supreme Court but that is irrelevant: the Tribunal made a bona fide error but can now sit with the appearance and reality of impartiality to conclude its business on Quarryvale 1 and address other relevant matters. Mr. Gilmartin can now conduct or have conducted any cross-examination he wishes based on the newly available material, and can make such submissions as he wishes about the facts.
The Tribunal also makes a number of submissions of a more technical kind, specifically to the effect that a decision in the course of the discharge of its functions, even a seriously mistaken one, cannot, on the basis of the legal authorities of the subject, constitute material which could ground a reasonable apprehension of bias. This will be dealt with separately below.
The case actually made by the applicants.
I did not understand the applicants at any stage to make the case that, merely because the Tribunal had made a grave error in assessing what the requirements of natural justice required in the way of disclosure, that in itself gave rise to a reasonable apprehension of bias. Accordingly, a significant part of the Tribunal’s substantive answer seems to me to address a case not actually made. The case made was a different one. It might be summarised as follows:
The Tribunal, by virtue of a grave legal error, significantly misdirected itself as to its obligations in the period leading up to the public hearings of March, 2004. Specifically, it withheld material from the applicant based on this misconceived view of its obligations.
Now, after prolonged litigation, the applicants finally have available to them a considerable body of material which the Tribunal has previously suppressed. It is the nature of that material, and not any previous legal error which may have led to its being withheld, that has caused the applicants to entertain what they say is a reasonable apprehension of prejudgment on the part of the Tribunal. The applicants say that, by the criteria for disclosure which the Tribunal had itself declared that it would apply, the failure to disclose this material gives rise to an apprehension of prejudgment which is more than reasonable.
The Tribunal’s defence both to this and to the previous application for judicial review was grounded on what it said were the appropriate legal principles, rather than on a detailed analysis of the material which it held. Indeed, on the hearing of the earlier judicial review senior counsel then appearing for the Tribunal (who was not engaged in the Tribunal hearings themselves) expressly stated that he was himself unaware of the contents of the material which had been withheld. The learned trial judge on this application considered it unnecessary to analyse this material, for the reasons he set out. But the case for the applicants was heavily based on a detailed analysis of the contents of the material and, in view of that, the Tribunal did in fact address the nature of the withheld material both in oral and in written submissions.
Necessity to look at the material
In view of the nature of the case I understand the applicants to be making, summarised above, I have found it necessary to examine certain of the withheld material and the fruits of that examination is set out at some length above. There is of course no doubt that it is now open to Mr. O’Callaghan and the other applicants to have their accuser cross-examined on the basis of the newly disclosed material, but that is not the question. The question is whether the apprehension of prejudgment which the applicants have deposed to is a reasonable one. A nuanced difference of a legal nature on the criteria to be applied to addressing this issue emerged between the parties on the hearing of the appeal and this, too, will be dealt with below.
Significance of previous inconsistent statements
In my judgment in the earlier judicial review (now reported at  2 IR 32) I explained at some length the long acknowledged significance of prior inconsistent statements of a witness, for the purpose of cross-examination. In Maguire v Ardagh  1 I.R. 385 I have previously explained the significance of the right to cross-examine itself, a right which has often been the means of the vindication of innocent people. See pp. 704-8 of the report.
In my judgment in the earlier judicial review I also discussed with citations of both statute law and case law the nature of the significance, recognised for centuries at common law, of prior statements by persons whose veracity or reliability is in question in later proceedings. I wish to incorporate this material, without setting it all out again in this judgment. I wish also to restate the conclusion: a prior statement by a witness which is inconsistent with his subsequent testimony is one of the most effective and best and longest recognised techniques for attacking that witness’s credibility. This is so regardless of whether the inconsistency is a positive factual inconsistency or takes the form of an omission to state something relevant in the prior statement. See  2 IR 32 at pp54/60.
Although a certain amount of technicality has grown up around the circumstances in which a prior statement can be put to a witness, the basic principle is not a technical one at all, but one grounded in ordinary fairness, common sense and every day experience. If a person is shown to have freely given, on two different occasions, contradictory accounts of the same matter within his own knowledge it follows that he was either lying or mistaken on at least one occasion. If the same person is shown to have given such contradictory accounts on more than one occasion, clear questions arise as to his or her credibility or reliability. Any advocate with experience of litigation with seriously contested factual allegations will have seen cases won and lost on this basis. Since the Tribunal seems insensitive to the very great importance of prior inconsistent statements I propose now to refer to a number of very recent examples taking place over a short period of time, to illustrate firstly, the significance of such inconsistencies and secondly, how frequently that significance is demonstrated. These are in addition to the cases discussed in my judgment in the first Judicial Review. I propose also to refer to an old Irish case, of great legal and political significance in its day, further to emphasise that the significance of prior inconsistent statements has been recognised for centuries.
On the 30th January, 2007, the English newspapers reported the withdrawal of a libel action brought against the Sun newspaper by a woman called Patricia Tierney. See, for example “Rooney Prostitute exposed as liar”, The Times, Tuesday January 30th, 2007. This woman had been named as a prostitute by the tabloid newspaper in an article which she said meant that she had provided services in that capacity to the well known footballer Wayne Rooney. She hotly denied this and issued libel proceedings. The collapse of these proceedings occurred precisely because The Sun was in a position to prove a prior statement by Ms. Tierney inconsistent with her claim not to be a prostitute. It appeared that in May, 2002 she had made a statement to police who were investigating possible misconduct within the police force. She was told that the statement would be private unless it was used for disciplinary or criminal proceedings. In her statement on that occasion she stated that she was a prostitute. In the later libel action, the Sun obtained a copy of her previous statement by a process of third-party discovery. When the statement was produced, Ms. Tierney’s lawyers withdrew from the case, on the basis that their client had misled them and the judge declined to permit the action to proceed. It would, in my view, have been inconceivable that any court would have looked at this prior inconsistent statement and then withheld it from the defendants. The statement did not, of course, positively prove that Ms. Tierney was a prostitute but it made the case for that proposition so strong that her action became untenable. If the previous statement had not been produced, then a case based on a total falsehood would have proceeded with the defendant grossly and unfairly handicapped in its defence by being unable to prove the statement.
In late February and early March, 2007 the Moriarty Tribunal, which is a tribunal of inquiry legally and structurally very similar to this one, was pursing certain inquiries as to whether or not a former office holder had an interest in certain English property. A statement had been made to the police in the United Kingdom about issues relevant to this inquiry. Between the 28th February and early March the person who had made this statement was intensively questioned by counsel for the Tribunal as to alleged differences between the final version of the statement to the police and two earlier drafts of the same statement: this is recorded in the Tribunal Transcript for 7th March, 2007, and reported in “O’Brien snr. ‘livid’ at ‘blackmail attempt’ ”, Colm Keena, The Irish Times 8 March 2007” and “Inquiry told of altered statements”, Colm Keena, The Irish Times, 8 March 2007. I stress that I am expressing no opinion whatever as to the merits of the Moriarty Tribunal’s inquiry or any issue arising in it. But it is a felicitous example, arising as this judgment was being drafted, of the routine use of prior statements, possibly inconsistent, to test a witness’s account. In that instance, the use of the allegedly inconsistent statement was by the Tribunal itself. Moreover, the Moriarty Tribunal anticipated such use of possibly contradictory statements even before it had them. In the opening of the relevant module by counsel to the Tribunal on the 15th of September, 2004, counsel referred to a statement of the witness and said:
It appears that in a later statement to the English police [the witness] may have qualified or revised this statement. The Tribunal has not yet been furnished with a copy of that statement.
On the 21st March, 2007, a young woman was convicted in the Central Criminal Court of the manslaughter of another girl. Self-defence and provocation were relied upon by the defence. A witness, the sister of the deceased, “denied her sister was frequently violent”. What happened next is described in a newspaper account of the trial:
.... [the witness] agreed that she had made a statement to gardaí in June 2005 describing how her sister had broken her jaw and knocked her unconscious in a row over a mobile phone. In the statement she said she feared at one stage that her sister, who had been kicking her in the face, would kill her. When she regained consciousness, she was in hospital and was told her brain was swollen and her jaw broken. She had since withdrawn this statement.
(“Guilty of fatal knife attack on Meath teenager”), Irish Times Thursday, 22 March, 2007, page 7.
One does not have to have any views on the issues in the particular case to understand that it would have been very wrong to withhold the contents of the witness’s previous statement, even though later disavowed by her, from the jury.
I have referred to these cases, all coincidentally arising in a period of less than two months, to illustrate how frequently a prior, allegedly inconsistent, statement is deployed in courts and indeed in Tribunals or indeed in any forum where contests of fact arise. I believe that scarcely a day goes by without such a statement being used to challenge a witness. I must frankly record my astonishment that even clearly inconsistent statements were not disclosed to the applicants by the defendant Tribunal.
Almost 180 years before the cases just referred to, in the case of R. v Lynch (universally known as the Donneraile Conspiracy case), Daniel O’Connell was defending seventeen men charged with conspiracy to murder. This was then a capital offence. The sole evidence against them was that of approvers i.e. persons claiming to have been complicit in the alleged conspiracy who were giving evidence for the Crown. On this evidence four men had been convicted prior to O’Connell’s involvement and sentenced to death. The allegation was a very specific and melodramatic one: that the defendants had met together with others, including the approvers, in a tent at a fair and had there signed a written agreement to kill a number of local landowners.
O’Connell saved the lives of all but one of the defendants by destroying the credibility of the principal approver in cross-examination. He did this by cross-examining on the basis of a prior inconsistent statement. This statement was a deposition made before a magistrate on the day after the alleged murder agreement. The Crown went to great lengths to conceal this document, which was a gross embarrassment to them since it simply did not mention the alleged written agreement at all. It was not transmitted with the other depositions to the Court of trial. Nationalist legend for many years held that O’Connell cross-examined out of a stolen copy of the deposition but this is not true. Less dramatic (but for our purposes much more significant) is the fact is that one of the two presiding judges, Mr. Baron Pennefather, himself sent for the missing deposition. When it arrived he handed it to O’Connell in open court: the cross-examiner proceeded to destroy the credibility of the witness “.... using this knowledge of the difference between first evidence given in the privacy of a prosecutor’s den and the oral evidence gently sieved by a Crown Prosecutor in court”. (See O’Faolain, King of the Beggars, a life of Daniel O’Connell, Poolbeg Press, Dublin, 1980 p.239; 1st edition 1937; for an earlier version based on contemporary accounts see J. Roderick O’Flanagan, The Munster Circuit, London, 1880, p.207ff).
This happened in October, 1829 a time when notions of human rights and fair procedures were, to say the least, underdeveloped. But it was clearly repugnant to the conscience of a judge of that remote era that a prior statement of a witness which made no mention of the principal point in his eventual oral accusation should be concealed from defending counsel. I, too, find the withholding of such evidence indefensible, within the different context of a 21st century Tribunal of Inquiry. I believe that the Tribunal, perhaps by reason of the multiplicity of roles – investigator, statement-taker, advocate and adjudicator – which it has by itself or its agents taken on, has become gravely insensitive to the position of the applicants and to the significance of prior statements by their accuser inconsistent with or contradictory of what he now says. The withholding or redaction of material has, in each instance of which I am aware, tended to protect Mr. Gilmartin and to handicap those against when he makes allegations.
Formulations of the duty to disclose
The Tribunal strongly contended that it was in a unique position, quite different from that of a party to civil litigation, the prosecution in criminal litigation, or a third party in possession of documents relevant in other peoples’ litigation: it is in fact sui generis. The significance of those distinctions will be discussed below. Nevertheless I think it appropriate to look to certain formulations of the duty to disclose in relation to civil and criminal litigation. These formulations are not, at bottom, technical in nature (though a good deal of technicality has grown up around them) but are designed to reflect the requirements of justice in cases where important matters depend on the resolution of contested issues of fact.
The classic statement of the scope of the duty to disclose in civil cases is still that contained in Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company (1882) 11 QBD 55. In a passage cited with approval for over 120 years the Court of Appeal in England per Brett L.J., said that the duty to disclose by a party making discovery went beyond documents which in themselves would be evidence to support or defeat any issue in the case. He continued at 61-62:
The doctrine seems to me to go further than that and to go as far as the principle which I am about to lay down. It seems to me that every document which relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‘either directly or indirectly’ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case, or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences ....
[emphasis in original]
In one sense, it is unnecessary in the exposition of this topic to go beyond that classic passage. It emphasises that it is the reasonable possibility, and not the certainty, of usefulness which is the criterion; and that the usefulness in question may be either the advancement of one owns case or the damaging of the case of an adversary. It also extends to a potential to lead a party to a train of inquiry, as opposed to direct or immediate utility.
In Ryanair v Aer Rianta  4 IR 264, Fennelly J. said at 275:
The definition by Brett L.J. in Compagnie Financiere du Pacifique v Peruvian Guano Co. (1882) 11 Q.B.D. 55 at p. 63, remains the universally accepted test of what is the primary requirement for discovery, namely the relevance of the documents sought.
In a civil case, of course the question of relevance of a document will be considered in terms of the issues raised by the pleadings. There are naturally no pleadings in the proceedings of the Tribunal. But the statements of Mr. Gilmartin and the parties against whom he makes accusations, and still more the oral evidence of Mr. Gilmartin in March, 2004 and such cross-examination of him as was permitted to take place, plainly identified the matters in difference between them: did Mr. O’Callaghan and Mr. Deane falsify the contract of January, 1989? Did Mr. O’Callaghan make the “Did he tap you?” remark in the context alleged and so on?
The proper limitations to discoverability seems to me to be well expressed in the English decision of Colman J. in O Co v M Co  2 Lloyds REP. 347. There, the judge said:
The principle [of Brett L.J.’s ‘train of inquiry’] was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the plaintiff or defendant and which were required for purely speculative investigation ....
The principles of disclosability by the prosecution in criminal proceedings, as applied in Ireland, may also be of relevance. In Ward v Special Criminal Court  1 IR 60 Carney J. said at 71, reflecting the agreed position of the parties in that case:
.... the prosecution must disclose any document which could be of assistance to the defence in establishing a defence, in damaging the prosecution case or in providing a lead on evidence which goes to either of these two things.
Perhaps more broadly, in Kelly v DPP  Supreme Court, (unreported, 4th April, 2006), Fennelly J. said that:
The prosecution must disclose to the defence any material of possible relevance to the guilt or innocence of the accused.
On the topic of relevance or materiality, the English case of R v Melvin (unreported, High Court, 20th December, 1993) per Jowitt J. is often quoted with approval:
I would judge to be material in the realm of disclosure that which can be seen on a sensible appraisal by the prosecution:
On the specific question of disclosure of material relating to the credibility of a witness, the New Zealand Court of Appeal in Wilson v Police  2 NZLR 533 said, per Cooke J. that:
.... the test must be whether a reasonable jury or other Tribunal of Fact could regard it as tending to shake confidence in the reliability of the witness
It is on that basis, presumably, that following the decision in DPP v Kelly  IR 596 previous convictions of prosecution witnesses fall to be disclosed. In the United Kingdom, where certain witness statements are apparently routinely recorded, it has been held that preparatory notes and tape recordings in relation to the preparation of a statement are disclosable: see R v Sanders (unreported, Central Criminal Court, 29th August, 1989). For a graphic example of the utility of such evidence see the remarks on the Daminola Taylor case in my judgment in the previous judicial review application between the present litigants.
In R v Winston Browne A.C. 367 Lord Hope of Craighead spoke of the rules of disclosure as follows:
The rules of disclosure which have been developed by the common law owe their origin to the elementary right of every defendant to a fair trial. If a defendant is to have a fair trial, he must have adequate notice of a case which is to be made against him. Fairness also requires that the rules of natural justice must be observed. In this context, as Lord Taylor C.J. observed in R v Keane  1 W.L.R. 746, 750g the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence ....
The statement which the police had obtained .... supported his alibi. This was information in the hands of the prosecutor which might have assisted the defence case on an issue of fact which was relevant to the plaintiff’s guilt or innocence.
In R v Judith Ward  2 All E.R. 577 the court adopted the words of Lawton L.J. in R v Hennessy (1978) 68 Cr. App. R. 419 where he said at 426:
[K]eep in mind that those who prepare and conduct prosecutions owe a duty to the courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence.
The Court went on to observe at 601:
We would emphasise that ‘all relevant evidence of help to the accused’ is not limited to evidence which will obviously advance the accused's case. It is of help to the accused to have the opportunity of considering all the material evidence which the prosecution have gathered, and from which the prosecution have made their own selection of evidence to be led ....
The reference to the prosecution having made their own selection of the evidence they wish to produce has obvious resonance in this case where the Tribunal had selected a tiny quantity of material for disclosure from a much larger volume available to them.
In Ward v Special Criminal Court  1 IR 60 O’Flaherty J. said at page 500:-
|It is agreed that all sides that where the prosecution has a statement of a person who may be in a position to give material evidence whom they do not want to call as a witness, they are under a duty to make that person available as a witness for the defence and in general to make available any statements that he may have given. We understand that this is in fact the practice that has been in operation in the office of the director of public prosecutions for a very long time.|
The last four passages were approved and followed by the High Court (O’Sullivan J.) in O’H v DPP (High Court), unreported 25th March 1999.
According to the learned authors of Abrahamson, Dwyer and Fitzpatrick Discovery and Disclosure (Thomson Roundhall, Dublin 2007) at paragraph 22.8:
It is axiomatic that this category of evidence which must be disclosed includes any previous inconsistent statement made by the witness. Indeed, previous statements should be disclosed irrespective of whether or not they can be seen to be inconsistent.
Amongst the authorities cited for this proposition is the judgment of Denham J. in DPP v G.K. (unreported, Court of Criminal Appeal, 6th June, 2002) where it was said:
Otherwise, the accused is precluded from confronting witnesses for the prosecution with inconsistencies in their evidence which only became manifest during the retrial. This is all the more so when the outcome of the prosecution is to a large extent dependent on whether or not the evidence of the alleged victim is accepted by the jury, or by the Court, as the case may be.
That case turned on whether a defendant in respect of whom a jury had previously disagreed was entitled, for the purposes of a retrial, to a transcript of what the prosecution witnesses had said at the first trial. It was held that he was. Denham J. also said:
To withhold a transcript of the evidence given at the first trial from an accused person in such a case is tantamount to denying him or her the opportunity of exposing an unreliable witness for what he or she is, in that, in the absence of the capacity to compare evidence given at successive trials by the same witness (evidence which is hotly contested) the accused is in effect limited in his or her capacity to defend himself or herself, which offends all principles of justice as they are recognised in this jurisdiction.
The G.K. judgment was given in the Court of Criminal Appeal and was shortly afterwards approved by the Supreme Court in B.J. v DPP  4 IR 525. In that case, the first statement in the nature of a complaint was unavailable because the guard to whom it was made had omitted to record it. The Court cited G.K. and continued:
There is no rational basis for distinguishing between a previous statement made by a witness in a trial and a previous statement made in some other context.
In one of the many cases dealing with the difficulties of fairly prosecuting for offences said to have taken place in the remote past, P.O’C v DPP  3 IR 87, I said at 119:
[E]very effort must be made by both parties but particularly the prosecution, to try to avoid a situation where there is no island of fact, and where bare assertion can be countered only by bare denial. This must be done first in questioning the complainant: everything he or she says must be recorded, whether it forms part of the eventual formal statement or not, and whether it appears to assist the prosecution or not. The charges should be no vaguer in point of time, place or otherwise than they need to be, and any variation between an earlier and a later account must be fully noted and disclosed ....
Enough has been said, I hope, to demonstrate that the use of prior inconsistent statements in particular and material undermining credibility in general, have been recognised for centuries as an effective way of contradicting a witness; that this can be demonstrated from cases both ancient and modern; that such statements are regarded as disclosable in criminal proceedings and as discoverable relevant and admissible in civil proceedings. As mentioned above, I would refer in addition to the remarks I made on this topic in my judgment in the first judicial review.
As we have seen above, the first criterion adopted by the Tribunal for disclosability was simply that of relevance. Material was withheld “where the text is not relevant to the Inquiry at hand”.
According to the Oxford English Dictionary, “relevant” means “bearing on, connected with, or pertinent to the matter in hand”. “Relevance” means the quality of being relevant.
In this case, the members of the Tribunal withheld, firstly on the basis that it was without relevance, the fact that Mr. Gilmartin had given a previous account of the meeting in Buswells Hotel which placed it on a day other than the day he mentioned in evidence. This previous account did not mention the demand made of him for £100,000 which he alleged at the public sitting and nor did it mention that Mr. O’Callaghan made the remark later publicly attributed to him.
I do not of course for a moment consider that the Tribunal withheld this information out of ill will to Mr. O’Callaghan or for any other manifestly illegitimate purpose. The applicants themselves did not make this contention. But it is evident that the Tribunal took this decision as a result of some rational process which led them to the conclusion that the material was irrelevant, that it had no bearing on the matters in issue.
Having regard to the long established forensic significance of a previous inconsistent statement, I cannot see how that can have occurred except on the basis that the Tribunal made a decision that the prior inconsistent statement was for some reason of little or no importance. On the hearing of this appeal Mr. Michael Collins S.C. for the Tribunal expressed this view as being that the inconsistent statement had “only marginal” significance. By not disclosing the previous statement the Tribunal were, according to their own stated procedures, precluding themselves from giving it any further consideration whatever and from hearing Mr. O’Callaghan on it. Accordingly, without hearing Mr. O’Callaghan or his counsel and without putting the matter to Mr. Gilmartin, the Tribunal arrived at a decision that the prior inconsistent statement was irrelevant because it had no bearing on the matters at issue.
I have to say that I regard this decision not merely as wrong but as extraordinary in light of the well established significance of a prior inconsistent statement. I am not of course saying that every prior inconsistent statement renders a subsequent statement to a different effect unreliable: I am saying that such a statement requires to be considered, after hearing both sides, in terms of its effect if any on the credibility of the second statement. The Tribunal not merely decided not to do this: it decided to give no consideration whatever to the fact that the prior inconsistent statement had been made at all. Therefore, the withholding decision seems to me self evidently to establish a judgment by the Tribunal on the suppressed materials’ truth or significance made without hearing the party accused by the maker of the statement, Mr. Gilmartin. This, in my view, is more than sufficient to give rise to a reasonable apprehension of prejudgment of the issue of the significance of the prior statement. That in turn, (subject to the Tribunal’s submissions on technical issues and on the question of finality), establishes a reasonable apprehension of prejudgment such as Mr. O’Callaghan deposes that he has. Similarly, the allegation in relation to the contract of January, 1989 appears to contain not one but two direct factual contradictions as between that allegation made in public sitting and what had previously been said. It is plain from the transcript that Mr. Gilmartin had represented to the Tribunal that the contract he gave them was the one he had signed. There is no evidence from a document examiner, handwriting expert or similar expert to the effect that the document has been tampered with or that the signature is not genuine. The only evidence on this question is Mr. Gilmartin’s unsupported statement that Mr. O’Callaghan and Mr. Deane falsified the document.
In those circumstances it appears quite wrong, and quite irrational, except on the basis of firm prejudgement, to dismiss as irrelevant Mr. Gilmartin’s previous statement to the Tribunal itself, attributing the deficiencies in the contract to negligence on the part of his own solicitor. Of course, these are not the only two alternatives to account for the contract being as it is: it may simply have been a commercially naïve or overoptimistic transaction on Mr. Gilmartin’s part for which he is determined to blame someone else and has in fact blamed, variously, his former solicitor and Mr. O’Callaghan and Mr. Deane. It is not my function to say which of these hypotheses is the more likely but, as with the previous allegation, there is no possible basis for the exclusion of the prior and quite inconsistent statement, without hearing Mr. O’Callaghan, other than that those who excluded it as “irrelevant” had made up their minds that Mr. Gilmartin’s later version was the only one that need be considered. A similar analysis of each of the other withheld documents listed above could be made with, I believe, the same inevitable result. The applicants’ conclusion – a reasonable apprehension of prejudgement – is an inference but, I believe in the circumstances, a coercive one.
After the allegations had been made in public
I now move to consider the situation which existed after Mr. Gilmartin had made his allegations in public. Once the Tribunal had permitted that to occur, in a blaze of publicity, no conceivable justification based on the modular nature of the Tribunal’s hearings or the fact that it had not been intended, originally, that Mr. Gilmartin should make some of the allegations, could justify the withholding of the prior inconsistent statements or of material clearly offering the possibility of impugning his credibility in general. As will be apparent from the judgments in the earlier judicial review, and the preceding section of this judgment, the Tribunal then altered the basis for non-disclosure from that relevance (clearly untenable once the allegations had been publicly made) to that of confidentiality. The Tribunal now recognises this to have been wrong. But the Tribunal also declared an exception to the general rule of confidentiality of un-notified allegations, in the event of certain kinds of inconsistency “between an account given on a previous occasion privately to the Tribunal and one given publicly”. The nature of such an inconsistency was variously described as “a glaring inconsistency” “significantly inconsistent” or “gross inconsistency”. More generally, it was stated in the ruling of the 24th March, 2004, that only in “exceptional circumstances” would the Tribunal consider departing from its rule of confidentiality of uncirculated material.
Furthermore, in the Tribunal’s ruling of that date, it became clear that it did “not at this time consider that there are circumstances which merit or which allow for a departure from the terms under which the document was provided to the Tribunal and accordingly refuses the application for its circulation.”
It follows from the foregoing that, even after Mr. Gilmartin’s unnotified and widely publicised allegations there were in the Tribunal’s view no sufficiently “exceptional” circumstances so to permit disclosure of prior inconsistent statements, or statements suggestive of impaired credibility on the part of the witness. Accordingly, the Tribunal had decided that (for instance) the prior statements in relation to the two allegations analysed in the preceding section of this judgment were not significantly inconsistent with what the same witness had said in public. This view can only be explained on the basis that the Tribunal had privately judged the significance and veracity of the privately made statements, without hearing the persons against whom they were made, in such a manner as to deem them not to be significantly inconsistent with what was later said in public. I believe this to be a perfectly reasonable inference and indeed I can see little or no scope for any other. It is certain that the Tribunal, in withholding the documentation after a specific request, did not simply or solely rely on confidentiality but considered first the relevance of the prior inconsistent statements and secondly the question of whether they were significantly etc. inconsistent with what he had said publicly. It is this fact that permits an inference of prejudgment, in my view reasonable, to be drawn.
Powers and Duties of the Tribunal
In order to conduct an Inquiry within the statutory framework of the Tribunals of Inquiry Acts, it is self-evident that the Tribunal must gather information. This could be done in many ways and no objection has been taken to the legality of the principal way in which it was in fact done, by extensive private interviews often leading to written statements. Some of the information so gathered was either self-evidently confidential, or was supplied under express terms as to confidentiality and/or plainly had the capacity to do immense damage to individuals, justifiably or otherwise. It is fair to say that the Tribunal was conscious of these matters and of the obligations on the part of the Tribunal to which they gave rise. Especially in circulating documents prior to public hearings, the Tribunal was obliged to give some of this information to third parties, e.g. persons who were impugned by it and in respect of whom the Tribunal intended to proceed to public hearing. Great injustice could be, and has in fact been, caused to individuals by the undisclosed leaking, in advance of public hearings, of matters disclosed to the Tribunal. This injustice took a number of forms, but a typical one was that leaked material was published in newspapers in advance of public hearings and without any opportunity on the part of the person impugned to reply, and before he had a chance to cross-examine. It was, in part, to avoid such damage that the Tribunal evolved its policy of confidentiality.
It is also fair to add that, since the applicants in the present proceedings have become aware, as a result of previous litigation, of most of all material in the Tribunal’s possession relating to them, there has been no leak whatever of the disclosed material, e.g. Mr. Gilmartin’s prior inconsistent statements or certain allegations which would plainly be profoundly hurtful to other persons and which the Tribunal does not intend to inquire into.
Certain of the Tribunal’s duties arise from the fact that a person impugned before it by serious allegations is obviously in the position of the applicant in Re Haughey  IR 217. That is, he is not a mere witness but is in a position more analogous to that of a party. The proceedings of this and other Tribunals provide examples of individuals, including some famous names, who have been ruined in reputation and sometimes in livelihood as well by adverse findings of a Tribunal.
The Tribunal fully accepts the procedural consequences of these things, and the need to provide a high and transparent standard of procedural fairness. Its own statement of part of what this requires may be taken from an affidavit sworn on behalf of the Tribunal in other proceedings, Mahon v Post Publications Limited (trading as The Sunday Business Post) (record no. 367/05). It was said:
.... The Tribunal has an obligation to conduct the hearings in which allegations are made against numerous parties in a fair and proper manner. In particular I say that the Tribunal is mindful at all times of the constitutional rights of the parties against whom allegations are being made and in particular their right to a good name. I say that the effect of the policy of confidentiality, when properly operated, is that allegations made against certain parties are made within the proper forum of public hearings, that the full context and circumstances surrounding those allegations are made known at one and the same time as those allegations and that the party against whom the allegation is being made is given the proper opportunity to respond to those allegations as soon as practicable. Further I say that the party against whom the allegations are being made is given the opportunity to test these allegations by means of cross-examination within a reasonable time of those allegations being heard in a public forum.
It cannot be said that “the full context and circumstances surrounding those allegations ....” were made known to Mr. O'Callaghan and his associates by the Tribunal. I think it obvious that the existence of an earlier statement, directly contradicting the one selected for airing in a public forum, is part of that full context and circumstances. But these were suppressed.
The Tribunal is of course correct to say that it is not in the position of a party to civil proceedings or of the prosecutor in criminal proceedings. Its powers and its role make it to a large degree unique. A Tribunal, especially one which proceeds as this Tribunal has elected to do, finds itself through its members or through counsel (and, to a much lesser extent, solicitor) functioning as adjudicator but also as investigator, statement-taker and advocate. This is an extraordinary mixture of roles, and one with many dangers. In this case, it would appear that the sole member who originally composed the Tribunal travelled to England to meet with Mr. Gilmartin (together with counsel) and to assure him that he “was not a whitewash man”. He left the rest of the interview to counsel. Counsel, under the direction of the sole member or later of the members of the Tribunal performed roles akin to those of a solicitor in civil proceedings and, to some extent, of a garda in criminal proceedings. They had a huge level of contact with Mr. Gilmartin over the years. He was, at least at times, able to telephone them without prearrangement and to spend hours in conversation. Moreover, it was made clear on the hearing of this appeal that it was the members of the Tribunal themselves, and not counsel as apparently had happened in other modules, who selected the documents for circulation before the oral hearing in this module and who therefore, by that very act, selected the documents which were to be withheld. It was likewise the members, the persons who would eventually adjudicate on conflicts, who decided to continue to withhold those documents after Mr. Gilmartin had made his allegations in the public sittings. It was the members who heard, without rebuke or contradiction, their own counsel in support of an objection to cross-examination say “There are no surprises here” when she, and they, must have been fully aware that the Tribunal was in possession of grossly surprising materials which they decided to withhold. The whole of this passage is set out above. This statement, in that context, epitomises the profoundly flawed nature of this Tribunal’s procedures and the insensitivity to the requirements of justice for the applicants which that produced.
Moreover, in normal circumstances there is no practicable appeal from the decision of the members. It was only Mr. Gilmartin’s unscripted outbursts, and his concession that his prior statements might well contain inconsistencies with his public evidence, that made the earlier judicial review, and thus this action as well, possible. Had he adhered to the statement which had been drafted for him it is most unlikely that the grounds for review would ever have become apparent. The contrast between the position of the Tribunal and that of participants in other kinds of forensic proceedings is acute. A judge deciding on what is to be discovered or disclosed is quite separate from, and independent of, the parties and the advocates. If a dispute arises, a judge can look objectively at the disputed material and judge objectively of its relevance. I can imagine no circumstances in which a judge would withhold from disclosure a statement by a party or witness directly contradictory to his publicly adopted position in litigation.
Slightly to adapt the language used in R v Judith Ward, (cited above), it is the Tribunal which gathers the information and the Tribunal which makes the selection, from that body of material, of the evidence which is to be led. In view of that fact, and the other very special circumstances mentioned above, I do not believe that the Tribunal’s obligation of disclosure to a person gravely impugned, who disputes the allegations, is in principle any less than that of the public prosecutor in criminal cases. This duty, I believe, arises from the obligations of procedural fairness and from the unique variety of roles which the Tribunal adopts including a private investigating one. Contrary to an express submission made on behalf of the Tribunal on the hearing of this appeal, I believe that the Tribunal is under a continuing obligation of disclosure to a party impugned, by reason of its having assumed an investigatory as well as an adjudicatory role. No official investigator is entitled to cherry pick the fruits of investigation, thereby shaping the public inquiry without the persons involved or the public being made aware of the true scope of the evidence. That is what happened here.
As indicated above, I believe that the specific manner in which the Tribunal dealt with the question of withholding of information (and specifically prior inconsistent statements) gives rise to a reasonable apprehension on the part of the applicants that the Tribunal has prejudged certain matters including the truth, relevance and significance of the originally withheld material, and the credibility of Mr. Gilmartin. Indeed, I share that apprehension. I would emphasise again that I do not believe it necessary, in order to feel this apprehension, to attribute it to any ill will on the part of the Tribunal towards Mr. O'Callaghan or his associates, and I am quite sure that no such thing existed. But I would repeat, in slightly adapted form, what I said towards the end of my judgment in the first judicial review when the withheld documents were still concealed:
.... I am deeply concerned that, if the information gathered in the private phase is to be shrouded in permanent secrecy there is a grave danger of a shift in the very nature of the Tribunal itself. This procedure would alter the Tribunal from being a public inquiry with a private, limited preliminary phase to one in which a good deal of the real business would be done in private. Specifically, a Tribunal would itself in private have assessed contradictions in a witness's evidence and have formed the view, without submissions of any kind, that they were not sufficiently ‘gross, glaring or significant’ to warrant exploration in public. There would be a danger .... that the Tribunal might itself become invested in the evidence of a particular witness to the point where it became insensitive to contradictions in his or her evidence. There is also a danger, on the same basis, of the public perception of an element of pre-selection or management of the evidence presented in public and an element of protection of a particular witness, which might be wholly unconscious on the part of the Tribunal.
Having now seen the withheld material, I believe that this is precisely what happened here.
I must now turn, however, to some further points urged upon the court on the hearing of this appeal by the Tribunal. These include firstly, submissions in relation to the nature of the apprehension of prejudgement which must be established; secondly, to the alleged legal impermissibility of inferring prejudgment from decisions taken in the course of the Tribunal's procedures themselves; and thirdly, the proposition that there is no finality in any impression or decision the Tribunal may have formed or taken in relation to the withheld material so that the members are not disqualified from proceeding to hear and arrive at findings upon the allegations against Mr. O'Callaghan and the other applicants. The Tribunal further alleges that the present case is premature.
The nature of the apprehension of prejudgement
There is a good deal of authority on the question of the sort of apprehension of pre-judgement which must be shown before a person can be restrained from sitting as a judge or other adjudicator. There was not, indeed, much controversy between the parties to this appeal on the subject except perhaps on one aspect.
In O’Neill v Beaumont Hospital Board  ILRM 419, the Board of the hospital had unlawfully delegated to their Chief Executive a decision on whether the plaintiff, a consultant surgeon, had satisfactorily completed a probationary period. The Chief Executive decided against the surgeon. When the latter established the unlawfulness of the delegation, the Board proposed to determine the issue afresh themselves. The surgeon objected on the grounds of prejudgement, evidenced by remarks made by certain members of the Board approving the former purported determination. Finlay C.J. said at 438:
I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it may be subtly different from the standard which was applied in the High Court, is the question as to whether a person in the position of the plaintiff, Mr. O’Neill, in this case who was a reasonable man, should apprehend that his chance of a fair and independent hearing of the question .... does not exist by reason of the pre-judgement of the issues which are involved .... by the members of the Board. That in my view is the proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been accepted in this country and by this Court in relation to a case of this description.
In general, this test was accepted by both sides. That is to say, it was accepted that the standard was whether a reasonable person, who was informed as to the issues and the facts, would apprehend bias. The applicants however considered that the hypothetical reasonable person should be one whose perspective included, but was not limited to, that of the party who might be the victim of the prejudgement, while the Tribunal preferred a test limited to the perspective of a reasonable but entirely detached person.
On the authorities, I believe that standard of reasonableness is one which includes, but is not limited to that of a party. I do not believe that, as was hinted in argument, Chief Justice Finlay’s phrase “.... whether a person in the position of the plaintiff .... who was a reasonable man ....” was in any way an accidental or unfortunate wording.
The O’Neill case was followed in this Court in Well Woman Centre Ltd. v Ireland, The Attorney General and the Society for the Protection of the Unborn Child (Ireland) Ltd.  1 ILRM 408. There, the plaintiff had brought proceedings seeking a declaration that it could lawfully make available within the State information relating to abortion services which were themselves lawfully available in another Member State of the E.U. This action came on for hearing before a judge who happened also to be the chairwoman of the Commission on the Status of Women. In that capacity she had written a letter to An Taoiseach indicating the view of the Commission that women should have the right to avail of counselling and information in relation to abortion outside the jurisdiction. The third-named defendant, SPUC, asked the judge to discharge herself from the hearing on the ground of a reasonable apprehension of bias. Giving the judgment of the Supreme Court, Denham J. said at 423:
It is a fundamental and age old concept in common law that justice must manifestly and visibly be seen to be done. It is expressed now as constitutional justice. In cases such as this where many reasonable people in our community hold strong opinions, it is of particular importance that neither party should have any reasonable reason to apprehend bias in the courts of justice. Further, once the question of a possible perception of bias has been raised reasonably on the grounds of pre-existing non-judicial position and actions, it would be contrary to constitutional justice to proceed with a trial.
Similarly, in O’Reilly v Cassidy  1 ILRM 306, a Circuit Judge was hearing garda objections to the renewal of a public house licence. The barrister retained by the State to act for the objectors was a daughter of the judge. The lady who owned the public house took exception to this state of affairs, on account of the relationship. Finlay C.J. said at 309-310:
[Counsel for the licensee suggests] that the test to be applied was, would a reasonable person apprehend that there might be bias because of that relationship. Given the applicant’s very considerable stake involved in the decision in the case, having instructed her counsel to object to the relationship, I am satisfied that the Court possibly should have discontinued the matter and either got another judge to do it or take some step.
Quite clearly, in these cases the decision as to whether there was a reasonable perception of bias was decided on a test which did not exclude, but was not limited to, the position of a party. Indeed, what Denham J. calls the “fundamental and age old concept” that “justice must manifestly and visibly be seen to be done” plainly includes the necessity for justice to be seen by the parties to be done.
Another case which was much discussed on the hearing of this appeal was R. v Watson, a 1976 decision of the High Court of Australia, reported at 1 FAM. LR 11297. There, a party to family law proceedings sought and obtained relief by way of prohibition on the grounds that the judge in the case was biased against her and had prejudged her credibility to her disadvantage. The fundamental principle in such cases was put in this way by Barwick C.J.:
The requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be considered in the minds of those who come before the Tribunal or in the minds of the public that the Tribunal or a member or members of it may not bring to the resolution of the questions arising before the Tribunal fair and unprejudiced minds .... The view that a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial .... is not only supported by the balance of authority as it now stands but is correct in principle.
Accordingly, I take the view that the apprehensions of a party, who is a reasonable person, are not to be excluded in determining whether there is a reasonable apprehension of bias. In none of the cases cited were they in fact excluded. To do so would involve paying no attention to the authoritative statements of eminent judges. Finlay C.J. considered the perspective of “A person in the position of the plaintiff ....” Denham J. asserted that “neither party” should have reasonable grounds to apprehend bias. Barrick C.J. referred to reasonable suspicion “in the minds of those who came before the Tribunal or in the minds of the public”. These formulations cannot be disregarded.
Neither indeed are the apprehensions of a wholly detached observer who is both reasonable and informed to be excluded. There may be cases where the result will turn on a difference between those two perspectives. But such cases will be rare, if they exist at all, because all apprehensions are to be subjected to the objective test of reasonableness. In the present case I do not believe that anything turns on the distinction because of the glaring and manifest significance of some of the withheld documentation and because of the process of judgement which must have been applied by the Tribunal in deciding to withhold it and to continue to withhold it after specific request.
Source of the apprehension
It was trenchantly argued on behalf of the Tribunal that existing authority precludes a finding that a party reasonably apprehends bias or prejudgement in circumstances like those of the present case. This is because, the Tribunal submitted, the matters which give rise to the apprehension occurred in the course of the Tribunal’s own procedures in the very module in which the applicants are involved. The Tribunal did not go so far as to submit that this fact alone would deprive the applicants of any relief but submitted that such relief could not extend to the disqualification of the members for apprehended prejudgement.
As in the case of other legal issues which arose on the hearing of this appeal, much authority was cited on this question from jurisdictions both near and far. It seems to me, however, that the Tribunal’s principal reliance was placed upon the decision of this Court in Spin Communications Ltd. v IRTC  4 IR 411, and on another recent Irish case much quoted there, Orange Communications Ltd. v Director of Telecoms (No. 2)  4 IR 159. In the former case, Murray J. (as he then was) said at 433:
In my view there is clearly a distinction to be drawn between the existence of factors external or extraneous to the decision making process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the decision so as to give rise to a reasonable apprehension of bias. Obviously factors relevant to the decision may affect it but the decision must be arrived at fairly.
Mr. Justice Murray went on to cite Barron J. in Orange as follows:
There is a duty upon the decision makers to carry out the process leading to the decision in a particular way. Not to do so may make the process unfair or otherwise invalidated, but that is not bias.
Earlier in the same judgment at 221, Barron J. had said:
Insofar as bias may be found to exist or to have existed, it will always predate the actual decision of contemplated decision. Bias does not come into existence in the course of a hearing. It may become apparent in the course of a hearing and in that way alert a party to the possibility of bias so as to enable such a party to establish facts which show that the attitude adopted by the decision maker in the course of the hearing was one which might have been expected having regard to those facts. The essence of bias then is the perception .... once all the facts are known that the particular decision maker could never give or have given a decision in relation to that particular issue uninfluenced by the particular relationship, interest or attitude. Obviously, if it is perceived that it may influence a decision yet to be given, it must exist at that stage.
It is clear from the foregoing that a distinction has been recognised in the authorities between something separate from an adjudicator’s “decision making process” on the one hand and something arising during this process on the other. The significance of this distinction is that, it is said, only something in the first category can be said to lead to an apprehension of bias. If something improper in the second category occurs then that is at most a failure of fair procedures. The significance of this hard fought issue lies in the fact that it is also argued that only something in the first category can disqualify a decision maker: a failure to accord fair procedures may lead to a necessity to revisit the hearing, but cannot disqualify.
I am far from satisfied that it is possible to draw so hard and fast a distinction between these two categories of wrongful actions by an adjudicator as that which the Tribunal seek to uphold. But I do not consider it necessary to explore this question in a theoretical way. The fact is that, by reason of the very unusual, probably unique, procedures this Tribunal has elected to adopt, its counsel on the hearing of this appeal had great difficulty in identifying with any precision the bounds of the “decision making process” of the Tribunal and its other processes.
When it became clear that the Tribunal were relying very heavily indeed on this distinction, Mr. John Fitzgerald S.C. for the Tribunal was asked whether the “preliminary investigation” part of the Tribunal’s procedures were part of its “decision making process”. This, indeed, was not an easy question and Mr. Fitzgerald deferred its answer to another day. Having considered the matter he said:
The preliminary inquiries are, in the Tribunal’s view, part of the decision making process of the Tribunal. Any errors in that process are such as can be cured.
Two days later again Mr. Michael Collins S.C. for the Tribunal submitted, on the basis of the authorities quoted above and others that “You have to locate [the sources of] bias outside the Tribunal’s decision making process. In the Tribunal there are two processes, the investigatory process and the decision making process. But there are moments of decision making which could be regarded as discrete from the investigatory process, even though they occur within it.”
Not unnaturally, Mr. Collins was then asked whether he was resiling from what Mr. Fitzgerald had said some days earlier. He said “I’m nuancing it .... I am saying something a little different”.
“.... nuancing it”
Mr. Collins S.C. returned to this theme in the afternoon of the same day and next submitted that a “bias factor” must be outside the entire process of the body in question. There may indeed be two parts to the processes of the Tribunal but a bias factor, he said, must be outside its processes as a whole. The Orange case was cited in support of that, though it was conceded that on the facts of Orange there was only one process. Alternatively, Mr. Collins repeated his previous submission that within the investigatory process there were what he described as “moments of decision”.
The applicants’ argument on this point was made principally by Mr. Sreenan S.C. in reply. Relying on the instrument establishing the Tribunal and the resolution of Dáil Éireann, he said that the Tribunal’s function was to conduct a public inquiry into certain matters and that the preliminary process was envisaged by the drafters of these documents only in relation to the question of whether it was appropriate to proceed to public inquiry, having regard to the availability of evidence. He drew attention to numerous paragraphs of the affidavits filed by the Tribunal asserting that the decisions of the Tribunal would be based only on evidence given at public sessions.
The private sessions of this Tribunal have very greatly surprised me by their number in absolute terms, by their number relative to the days of public hearings, by the frequency and intensity of the contacts with Mr. Gilmartin which took place in the course of them, and in other ways not directly relevant to the present proceedings. But by far the most novel and significant aspect of them is the drastic editing of the statements of a vital witness, including even the deletion from the documents to be circulated of material in gross glaring and significant contradiction to allegations the witness was to be permitted to make. In one sense, clearly, the fact that these things were done imply decisions to do them by the members of the Tribunal. But I cannot regard them as part of “the decision making process in which [the Tribunal] is engaged” because they wholly lack the characteristics which the Tribunal has itself attributed to its decision making processes.
First, as just noted, its decision making processes would be based wholly on evidence heard in public: but the withholding decisions were based on information and discussion in private and had as their purpose the sedulous preservation of that privacy. No-one was to know of the withheld material.
Secondly, the decisions in question were taken without hearing persons to whom the allegations were related, but the Tribunal say that its decision making processes would involve a full hearing of those persons before any decisions are made.
The shifting positions of the Tribunal on this important topic during the hearing, even when there were intervals of several days to decide on a position, are indicative of the inherent difficulties of maintaining, as they must for the purpose of this wholly technical argument, that the decisions to suppress certain documents were in some sense part of the “decision making process” of the Tribunal. There was first an unqualified assertion that they were part of this decision making process, followed by a concession that they were not, but that they were part of a separate process which nonetheless contained “moments of decision making”. The alternative argument, that the bias material must be sourced outside the Tribunal’s entire processes, simply ignores the words “decision making process” in an authority (Orange) on which the Tribunal itself relies. In my view, these arguments are altogether too strained and metaphysical to register in a court of Justice. A decision making process, the Tribunal has itself proclaimed, takes place in public and after hearing the parties. It is unreal to say that a process which has neither of these characteristics is nevertheless for a “moment” a part of the decision making process though mostly being part of a process of a different nature. I regard the Tribunal’s position on this issue as a wholly artificial one.
The Tribunal further say that the decisions they have taken in relation to the withholding of documents, albeit wrong, nonetheless do not disqualify the members from continuing with the hearing. This is because the decisions they have made, though wrong, are not final and, even if final in some sense can nonetheless be revisited by the same individual members without giving rise to an apprehension of bias.
At paragraph 18 of the statement of opposition in the present case the following novel plea is put forward:
Insofar as the documents which have now been circulated are concerned, the Tribunal was, at the time of its consideration of the documents prior to the first-named applicants judicial review, of the view that same did not reveal any significant or glaring inconsistencies as between previous statements of Mr. Gilmartin and his evidence before the Tribunal which were relevant to that particular phase. The Tribunal has not made any final determination in this regard and will consider any further evidence (by way of cross-examination or otherwise) or submissions which the applicants, or any other party, wish to put before the Tribunal in relation to whether the documents contain such inconsistencies or otherwise are of relevance to the Tribunal’s discharge of its functions. Further, the documents do not evidence any, or any serious disparity and treatment by the Tribunal as between the applicants and Mr. Gilmartin or as between the applicants and any other party appearing before the Tribunal.
This paragraph (exclusive of the final sentence which relates to a slightly different subject) requires careful analysis.
The first sentence contains an admission that the Tribunal at one point held the view that the withheld documents did not reveal any significant or glaring inconsistencies as between previous statements of Mr. Gilmartin and his evidence before the Tribunal, which were relevant to that particular phase. However it is stated in the first subordinate clause that the consideration leading to this view was “prior to the first-named applicants’ judicial review”. Furthermore, the conclusion come to was not that the documents did not contain any significant or glaring inconsistencies but that it did not contain such inconsistencies “which were relevant to that particular phase”. But it is conceded that the Tribunal had come to that view.
The second sentence of the paragraph quoted makes the central statement that “the Tribunal has not made any final determination in this regard ....” This statement was made on the 23rd January, 2006, almost two years after Mr. Gilmartin’s evidence in March, 2004 and was then made for the first time. The second sentence goes on to state that the Tribunal will consider any further evidence or submissions from any party in relation to whether the documents contain “such inconsistencies” or are otherwise of relevance.
I cannot regard the factual assertion contained in the first sentence of paragraph 18 as consistent with the Tribunal’s prior stance. In written submissions to this Court on the Tribunal’s appeal from the judgment of O’Neill J. in Mr. O’Callaghan’s earlier judicial review the Tribunal said that had the documents they held been disclosed, that state of affairs was:
.... likely to have resulted in cross-examination based on minor discrepancies between the sworn testimony of witnesses and communications made by them to the Tribunal.
I have already noted that the Tribunal did not tell counsel representing it on the occasion of Mr. O’Callaghan’s first judicial review of the contents of the withheld documents. The statement just quoted, therefore, can only represent the Tribunal’s instructions, since counsel was unaware of the contents of the documents and therefore unaware of the likely effect of their disclosure. The statement just quoted is without any qualification such as limitation to a particular phase of the Tribunal’s activities. It is a firm statement of the Tribunal’s views, having considered the documents. It does not hint at any conditionality or lack of finality. It refers only to “minor discrepancies”. This plainly reflects the Tribunal’s considered judgment of the withheld material.
Furthermore, and perhaps more fundamentally, the subordinate clause in the first sentence of paragraph 18 “.... at the time of its consideration of the documents prior to the first named applicants judicial review ....” may be intended to suggest that a consideration of the documents after the Tribunal’s legal error as to disclosability had been rectified might lead to a different result. The earlier judicial review was entirely concerned with legal issues. But, as I have stated several times in this judgment, on the Tribunal’s own account of its procedures, the non-disclosure did not derive from any view of the law. On the contrary, it derived from the view, first, that the withheld documents were not “relevant”. This decision was taken in complete privacy and was final in the most practical sense that, but for Mr. Gilmartin’s unexpected outburst, the nature of the withheld material would never have become known. No submission could have been directed to it and no cross-examination could have taken place on it for this reason. At the time that decision was taken, therefore, it was manifestly intended to be final. The immediate cause of its disclosure was the orders resulting from the earlier judicial review but those proceedings could not themselves have been set in train but for a wholly unanticipated event. The Tribunal itself says (paragraph 9 of the Statement of Opposition) that, in relation to information in its possession from a witness about matters in relation to which a public hearing was not merited, “it was never intended that the witness would be questioned in relation to such extraneous matters when giving evidence at the public hearing of the module which did require public inquiry”. (Emphasis added).
I would again emphasise that it is not the Tribunal’s mistaken view about confidentiality and its consequences which give rise to the apprehension of prejudgement: it is the individual decisions as to relevance which give rise to that impression. The legal error was merely the background to those decisions.
In paragraph 18, quoted above, the Tribunal seek further to narrow the scope of that initial decision by speaking in terms of relevance “to that particular phase”. In my judgment in the earlier judicial review I made it clear that, for the reasons set out there, it simply is not possible fairly to adopt a policy of doling out information bearing on the witness’s credibility, such as prior inconsistent statements, on a drip feed basis, module by module. The credibility of a witness requires to be considered as a whole and the decision as to when and how to deploy material challenging it is, with great respect, for the cross-examiner and not for the Tribunal. In any event the first Quarryvale module is divided from the second entirely on the basis of chronology: Quarryvale I relates to events occurring before 1990 and Quarryvale II relates to events after that date. Furthermore, the Buswells Hotel issue was, even on the strictest view, within Quarryvale I, as was the alleged falsification of the contract of 1989 and the alleged conversation about the Lee Tunnel in 1988.
At paragraph 8 of the Statement of Opposition, the Tribunal say that if a witness provided a narrative statement which was inconsistent with the information already provided by him at private interview
|.... the Tribunal would have corresponded with that witness or his solicitor querying the apparent inconsistencies and would consider raising the fact of their being inconsistencies at a public hearing in circumstances where the Tribunal consider the inconsistency to be significant. If in the course of giving evidence any witness gave evidence which was apparently inconsistent with his prior statements, the Tribunal would depart from its procedure of maintaining the confidentiality of earlier prior statements where it had considered the inconsistency had founded to amount to a significant or glaring inconsistency.|
There is no evidence in this case that either of those things occurred. Moreover, even after the unforeseen events of Mr. Gilmartin’s testimony on the 4th March, 2004, and subsequent days, the Tribunal did not consider the events which had happened sufficiently “exceptional” to disclose documents manifestly inconsistent with some of what he had said. These facts seem to me to argue inexorably for the finality, even in the Tribunal’s own mind, of the decisions already made to withhold material. And when Mr. O’Callaghan took the matter to the Courts, the Tribunal fought doggedly to preserve the secrecy of the withheld material, even the prior inconsistent statements.
Even if the decision was final
The Tribunal next argued that even if their decision was to be regarded as final, that fact would not necessarily preclude them from simply readdressing the issue of the significance of the contradictory material at a fresh sitting. For this proposition they relied on an English case, AMEC Projects Ltd. v Whitefriars City Estates Ltd.  1 All E.R. 723. This was a case about a construction contract which led to a dispute between the parties who were contractor and sub-contractor. The dispute was referred to adjudication under an English statutory procedure. Due to an apparently mutual error, the wrong person was appointed as adjudicator. This came to light when a judge refused to enforce his award for want of jurisdiction. By that time, however, the person who should have been appointed to adjudicate had died. Accordingly the first adjudicator was again appointed to hear the case again, but one party objected on the grounds that, having decided the dispute against it once, he could not decide again with the necessary impartiality.
In my view, the factual matrix of AMEC is quite different from that of the present case. The point at issue in AMEC was a purely technical one and the case did not raise the issues of constitutionally protected rights as this one does. Moreover the adjudicator had conducted a proper hearing, with both sides represented and fully heard. Neither side complained of the hearing or the procedures adopted for it. Neither alleged that decisions had been taken in secret or that relevant material had been withheld, which is the nub of the applicants’ case here. Given these fundamental distinctions it would be inappropriate for me to consider whether this case was correctly decided in its own terms and otiose for me to consider whether it should be followed here. I note, however, that the English Courts have had no difficulty in intervening on the ground of a reasonable apprehension of bias in a case where such an apprehension arose from an act of the adjudicator. See Discain Projects Services Ltd. v Opecprine Development Ltd., (Queen’s Bench Division, Technology and Construction Court, unreported 11th April, 2001).
The Tribunal next raises a defence of Necessity. That is, it contends, that even if there is a reasonable ground to apprehend bias, the hearing must nonetheless proceed before the Tribunal as presently constituted because in no other way can the important issues referred to in the Dáil Resolutions be inquired into.
The doctrine of necessity is, to my mind, an ancient and now limited one. In O’Neill v Beaumont Hospital cited above, Finlay C.J. says of it:
It is not a dominant doctrine. It could never defeat a real fear and a real reasonable fear of bias or injustice, but it is a consideration in relation to the question of the entire board being prohibited ....
The facts of the O’Neill case have already been summarised. In the result, the Court prohibited three members of the Board who had made express statements indicating prejudgement of the merits of the issue from sitting on the Board when it considered the question of whether the plaintiff’s probationary service had been satisfactory.
The incorporation of the European Convention on Human Rights into Irish Law effected by the European Convention on Human Rights Act, 2003, is of some significance here. Kingsley v UK  35 EHRR 10, 177 related to an utterance by a Lady Littler who was at the relevant time chairwoman of the Gaming Board. She made a speech at a luncheon the burden of which was that she did not regard the applicant as a fit and proper person to have the conduct of a casino. Later, the Gaming Board in formal session made a finding to the same effect. The Court of Appeal, applying the former test used in Great Britain – whether there was a ‘real danger’ of bias – refused judicial review. The Court also said that even if there was such a danger, it had to be discounted in view of the necessity for the Gaming Board to hear the relevant application. The applicant was refused leave to appeal to the House of Lords, the Court finding that the relevant decision could not be delegated and that:
.... if [the Board] were actuated by bias, apparent or real, then the decision would still have to be made by them. Therefore, on the doctrine of necessity, which is accepted, there could have been no meaningful independent panel and the decision would have to stand because the decision has to be made by the Board and could not be delegated to the independent panel
The applicant then brought proceedings in the Court of Human Rights. At paragraph 32 of the Report the relevant Chamber of that Court considered that the decision making body “did not present the necessary appearance of impartiality ....” However, on the ECHR case law, this would not have been a breach of the Convention if the proceedings “are subject to the subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Articles 6(1)”. The Strasbourg Court held that because there was no remedy for the lack of impartiality before the English Courts, by virtue of the doctrine of necessity, the English law was in breach of Article 6 of the Convention.
Apart altogether from this, I can see no reason why the present members of the Tribunal must necessarily conduct the inquiry insofar as this concerns Mr. O’Callaghan and his associates. The present members of the Tribunal are themselves the replacements of the original sole member and I can see no reason why they should not themselves be replaced, either in general or insofar as the issues involving Mr. O’Callaghan, Mr. Deane and their companies are concerned. Accordingly I believe, for reasons both factual and legal, that the doctrine of necessity has no application here.
Finally, the Tribunal make a submission that the applicants’ proceedings are premature. The Tribunal accepts, of course, that it would not have been open to the applicants to wait for the result of the inquiry and then seek judicial review on the ground of apprehended bias. But it submits that the applicants should have waited until the end of the evidence on the modules affecting Mr. O’Callaghan and Mr. Deane and then applied to court. Perhaps, says the Tribunal, at that stage their concerns would have been quieted by the scope afforded them for cross-examination or by rulings of the Tribunal, or otherwise.
In my view this submission is insupportable in law and defies commonsense. A party who delays in asserting bias runs the risk of being deemed to have acquiesced in the hearing before the person allegedly biased or ostensibly biased. This rule is soundly based: if such a point is not taken as early as possible other people will incur substantial costs and the expectation of finality will be disappointed. In the context of this enormously prolonged and enormously expensive Tribunal those grounds weigh even more heavily. The Tribunal is now in its tenth year and an estimate of a further year to deal with the modules touching Mr. O’Callaghan was made on the hearing of this appeal without contradiction. I do not know what the costs to Mr. O’Callaghan or the other parties represented of that representation for that period would be but I suspect they would be enormous. It would be a manifest injustice to compel a party to endure a year of hearings before a Tribunal he apprehended to be biased rather than to move immediately the grounds for apprehending bias arose. Furthermore I believe that if Mr. O’Callaghan, Mr. Deane and the others had waited that additional year, the Tribunal would as a matter of near certainty have accused them of acquiescence, and would have had a strong case in doing so.
On the 13th September, 2005 after the applicants had obtained sight of a good deal of the previously withheld material, their solicitors wrote a letter on their behalf to the Tribunal complaining bitterly of the manner in which their clients had been treated by it, based in the main on the newly revealed material. After two holding letters the Tribunal wrote a twenty-one page response, through its solicitor, on the 26th September, 2005. Both letters are very strongly worded.
In one important respect, the letter written on behalf of the applicants goes further than it was necessary for them to go in this judicial review hearing. I can easily accept that the terms of this letter would have been offensive to the members of the Tribunal, though I also consider that the Tribunal’s withholding of relevant material, though not malicious, was egregious. It was in my view inherently likely that, once the nature of the withheld material was revealed, it would give rise to deep resentment and grave apprehensions on the part of the persons from whom it was withheld.
For the purpose of this hearing, attention focussed on the conclusion to the Tribunal’s lengthy letter in reply. The following sentence in particular was emphasised;
The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issues involving your clients.
The Tribunal’s solicitors then asserted that her clients would continue to act fairly and impartially.
As might be imagined, the applicants’ emphasis is on the sentence quoted and its suggestion that the concerns expressed as to the impartiality of the Tribunal are false and lacking in legitimacy.
I do not find it necessary to have regard to the correspondence of September, 2005 in order to find that the applicants have established a reasonable apprehension of bias in the form of prejudgement. But I consider that that correspondence is illustrative of the total collapse of trust and confidence, and mutual respect, between the Tribunal on the one hand and the applicants on the other. It is not reassuring to be told that the Tribunal will continue to be fair and impartial in a paragraph which begins with an assertion that the applicants are pursuing a course calculated to give a false impression that they have legitimate concerns.
It must not be forgotten that the background to this litigation was a grave error on the part of the Tribunal in failing to disclose relevant material. It is striking that all of the material which was withheld (and each side had ample opportunity to draw any part of it to the attention of the Court) was such as tended to protect Mr. Gilmartin as a witness and to frustrate any attempt to undermine his credibility, reliability or accuracy. I have said several times and repeat now that there is no evidence whatever of pre-existing malice or ill will on the part of the Tribunal or any of its members towards Mr. O’Callaghan or his associates. But there is ample evidence for reasonable apprehension that the Tribunal have prejudged issues to do with the credibility and reliability of Mr. Gilmartin and, by necessary implication, the credibility and reliability of the persons contradicting him.
Equally, I do not find it necessary to consider the point argued on behalf of the applicants relating to a remark attributed to a member of the Tribunal. From the applicants’ point of view, that remark was at best ambiguous and could not in itself ground relief.
As indicated earlier in this judgment, some of the withheld material is sensitive in that it has the capacity to be damaging, or deeply distressing, to persons who are either not involved at all with the matters the Tribunal is investigating or are not involved in any matter which the Tribunal is proposing to examine in public. Some of this material has an air of great improbability about it. Indeed, in some cases, it is this very improbability which makes the material useful for the purposes of cross-examination. In my view the sensitivity of the information is not a reason for withholding from a person against whom the same originator has made damaging allegations which the Tribunal is minded to inquire into in public. I have already commented on the fact that both the Tribunal and the applicants have dealt with this topic with great discretion. Nor have there been any leaks of such material either before or after it came into the possession of the applicants.
In my view the potential impact of some of this material on the witness’s credibility is such that it is wrong to conceal it from the applicants. The witness will either agree that he made the allegations in question, or he will deny it. In the latter event he would be in direct conflict with the Tribunal personnel themselves. Equally, he will either assert the truth of what he said or will withdraw it. Either course may have obvious consequences for credibility. It would be a matter for the applicants’ advisers as to whether or not, and in what form, to deploy this information and for the Tribunal to control cross-examination, having regard to the other material available, the nature of the witness’s initial answers, the power to avoid undue concentration on collateral issues and its inherent powers.
I wish to draw attention to what I consider to be an important statement made by Justice Cory of the Supreme Court of Canada in Canada (Attorney General v Canada (Commission of Inquiry on the Blood System)  3 SCR 440. Justice Cory (who after his retirement became well known here due to his work in relation to certain unsolved homicides connected with the troubles in Northern Ireland) was speaking, in that case, in the context of a public inquiry. At paragraph 31, p.458 of the Report, he said:
The Inquiry’s roles of investigation and education of the public are of great importance. Yet those roles should not be fulfilled at the expense of the denial of the rights of those being investigated. The need for careful balancing was recognised by De Cary JA when he stated at paragraph 2 ‘the search for truth does not excuse the violation of the rights of individuals being investigated’. This means that no matter how important the work of an Inquiry may be, it cannot be achieved at the expense of the fundamental right of each citizen to be treated fairly.
I very much regret that I must conclude that Mr. O’Callaghan, Mr. Deane and their associated parties have not been seen to be treated fairly by the Tribunal to date. The precise form of unfairness to which they have been subjected is important to the resolution of the present dispute. The Tribunal erred in two quite different ways. It is obvious that, as was said by Hamilton C.J. in Haughey v Moriarty  3 IR I at p.54:
The essential purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of urgent public importance which it is to inquire into ....
This Tribunal, most unfortunately, started its public hearings into the Quarryvale I module by withholding certain facts from the applicants and from the public: the facts withheld were previous statements made by Mr. Gilmartin on topics of great importance to the Tribunal. This became known in circumstances set out above. It is important to stress that this error was no mere technicality. The High Court declared that it “amounts to a failure by the [Tribunal] to observe and protect the applicants’ rights to fair procedures and to natural and constitutional justice.” The Supreme Court upheld this declaration. The Tribunal opposed both in the High Court and the Supreme Court the first-named applicant’s claim that he was entitled to disclosure. Even after the principle had been established, the Tribunal contested the disclosure of various individual documents: I do not accept that it was simply seeking clarification of the earlier orders: it was seeking to minimise disclosure. (See pp. 2-12)
Accordingly, the Tribunal has, by wrongly concluding that relevant documents could be withheld from the applicants, put itself in the position of being the defeated opponent of the first-named applicant in hard fought and expensive proceedings. But this is merely background: it does not form the basis of the present proceedings.
Having lost the earlier judicial review proceedings, the Tribunal disclosed certain documents. The most relevant of these are discussed above at pp 18-54. One needs to understand these documents in order to understand the claim of prejudgement.
My conclusion is that it is a reasonable inference from the withholding of the material discussed at those pages that the Tribunal have indeed prejudged certain vital issues (pp 78-82). They have withheld even certain statements in direct contradiction of the allegations Mr. Gilmartin now makes. I consider that these decisions to withhold were quite wrong both objectively and by the Tribunal’s own standards and extraordinarily unfair to the applicants (pp 12-18, 62-84). I note that in every instance the effect of withholding the information is to protect Mr. Gilmartin and to handicap those who dispute what he says.
I do not accept that the fact that the previously withheld documents are now available ends the applicants’ grounds of complaint.
If they are now to use the material, they must use it in argument and cross-examination before those who took the decision to suppress it, and hope to persuade those same people that they were wrong in their previous private assessment of the material (see pp 104-110). This is a task which no litigant should be called upon to undertake, because it lacks even the appearance of fairness and of equality of treatment.
I have no doubt that the decisions to withhold this material were taken as a result of a process of assessment of its truth, reliability and/or significance. I fully accept that the Tribunal did not act out of any malice or improper feeling towards the applicants. Indeed, it is this fact that allows one to conclude that it took the decision to suppress on the basis of the sort of assessment I have just described (see pp 78-84; 90-91). Moreover, the decision to withhold led to a further decision by the members of the Tribunal to pay no regard whatever to the suppressed material in their decision making processes. (See p.57)
In several cases the Tribunal has attributed the decision not to circulate particular material to a factual mistake on its part in relation to the materials meaning or significance. In one case it says that it thought that an important document related to a meeting other than the very dramatic one to which it did in fact clearly relate (see pp 30-37). In another case it says that it was uncertain whether a particular phrase had been used by Mr. Gilmartin or by its own counsel. (See pp 48-53). For the reasons set out I cannot accept these explanations as accurate and consider that the Tribunal’s collective memory has become confused due to lapse of time in those respects.
I do not accept that the decisions to withhold the various classes of material in question were lacking in finality or subject to later revision. Nor do I accept that the acts of withholding took place in the private investigative stage of the Tribunal: they clearly took place at the time the Tribunal circulated its brief of documents for the public hearing in December, 2003 and January, 2004 and again at the time of its later rulings in March, 2004 during the course of the public sittings. But the assessment and judgement of the material, which led to it being withheld, took place earlier in private and without any opportunity for the applicants to be heard. (pp. 104-110)
I do not consider that the Tribunal is entitled to rely on the defence of necessity to justify continuing to adjudicate on the allegations involving the applicants, on the basis that no-one else can do it. On the contrary, the disqualification which I find to exist extends only to the existing members of the Tribunal. These, if it is thought desirable to do so, can be replaced by others in exactly the same way that they in turn replaced the original sole member of the Tribunal (pp. 112-115).
It follows from the last sentence that the case cannot be regarded as one which can have the consequence of stopping the Tribunal from investigating the applicants further. It relates only to the composition of the Tribunal as it presently stands.
I very much regret that I must conclude that Mr. O’Callaghan, Mr. Deane and associated parties have not been and are not now likely to be treated with manifest fairness by the Tribunal. I fully accept that the members of the Tribunal (like the judge in the Well Woman case cited above) sincerely believe that they can hear and make findings on the allegations against those parties in a fair and unbiased manner. But I cannot accept, after all that has occurred, and particularly after seeing the documents the Tribunal saw fit to withhold, that the applicants, or an informed, impartial and reasonable observer, can be expected to accept that and to overcome clearly reasonable apprehensions to the contrary. I believe that, if the Tribunal is permitted to continue to sit and proceed to findings in relation to the allegations against the applicants, that would represent a very marked coarsening of our standards of procedural fairness.
For the reasons stated above I would allow the appeal and grant appropriate relief.
(with whom Geoghegan J & Finnegan J concur)
These are judicial review proceedings in which the Appellants ask this Court for orders of prohibition and certiorari with the object of preventing the Respondents from further investigating or making any findings in relation to matters affecting them. The proceedings were dismissed by the High Court (Smyth J) in a judgment dated 10th October 2006.
The Appellants claim, firstly, that the Respondents have not treated them fairly, in particular by not treating them impartially in comparison with a witness, Mr Tom Gilmartin, and, secondly, that the Respondents have behaved in such a way as to give rise to a reasonable apprehension of objective bias.
The Tribunal of Inquiry into certain Planning Matters and Payments was established in October 1997 in order to investigate the planning history of certain lands in North County Dublin. The Terms of Reference of the Tribunal have been amended or expanded on a number of occasions. The Respondents are the current members of the Tribunal.
The first-named Appellant, to whom I will refer as Mr O’Callaghan, is a property developer and director of a number of companies, including the third and fourth-named Appellants. He has been involved in important property development projects in Ireland and in the United Kingdom for many years. His involvement with the Tribunal arises out of his acquisition, through the fourth-named Appellant, of an interest in the Quarryvale site in West County Dublin. It has since become the site of the Liffey Valley Shopping Centre. The second-named Appellant is a well-known solicitor and a consultant in the firm of Ronan Daly Jermyn in Cork. He also is a director of the third and fourth-named Appellants. He has participated with Mr O’Callaghan in a number of property developments.
The Tribunal has, over a number of years been investigating allegations made by Mr Tom Gilmartin, who was at one time involved in assembling parts of the lands which constituted the Quarryvale site. In connection with that aspect of the Tribunal investigation, Mr O’Callaghan and the other Appellants have made very extensive discovery of documents in their possession. Mr O’Callaghan has made a number of statements to the Tribunal during its investigative phase. All of this led up to the commencement of the module which the Tribunal has designated as Quarryvale 1, and out of which the complaints made by the Appellants in the present proceedings essentially arise.
The Tribunal conducted preliminary investigations in private into matters related to the Quarryvale matter. It then decided to proceed to hold public hearings in early 2004.
On 12th December 2003, the Tribunal circulated a document entitled “EXPLANATORY MEMO RE REZONING MODULE.” This described the procedure which the Tribunal intended to follow in its then forthcoming public sessions. It will be necessary to return to this document. By letter dated 26th January 2004, the Tribunal gave notice to parties interested in the Quarryvale 1 module, including Mr O’Callaghan, that it would shortly commence public hearings in relation to that module. It stated that this would involve Mr Thomas Gilmartin’s business dealings in Dublin between 1987 and 1990. The Quarryvale 1 brief contained in excess of 3200 pages. It included statements from a number of proposed witnesses accompanied by relevant documentation. One of these was a statement from Mr Tom Gilmartin, dated 25th may 2001, large parts of which had been redacted. There was enclosed a further “EXPLANATORY MEMO” on terms broadly similar to the memorandum of 12th December 2003. This outlined the procedure to be adopted by the Tribunal in its then forthcoming public sessions.
The only allegation made against Mr O’Callaghan in the material disclosed with the Quarryvale 1 brief was contained in the enclosed statement of Mr Gilmartin. It was that Mr O’Callaghan was present in Buswell’s Hotel in Dublin in December 1988 when a demand was made of Mr Gilmartin for £100,000 by Councillor Finbarr Hanrahan. It will be necessary to return to this and other matters, which form the nucleus of Mr O’Callaghan’s allegations of unfairness.
At this point, I will refer to the events which led to earlier judicial review proceedings, O’Callaghan v Mahon ( IESC;  2 I.R. 32), and how they arose, as they also are central to the present proceedings. I will refer to those proceedings as O’Callaghan v Mahon No 1.
On 3rd March 2004, Mr Gilmartin commenced his evidence at a public sitting of the Tribunal. Mr Gilmartin made a large number of extremely serious allegations against Mr O’Callaghan. These were allegations of which it is common case that Mr O’Callaghan had no prior notice. Indeed, it seems clear that the Tribunal and its counsel were also taken by surprise. One of Mr O’Callaghan’s complaints is that the Tribunal made no attempt to stop Mr Gilmartin or to control him. The gravamen of these allegations is summarised at paragraph 13 of the affidavit of Mr O’Callaghan in the present proceedings. They are conveniently summarised also in the judgment of Hardiman J delivered on 9th March 2005 in O’Callaghan v Mahon No 1. as follows:
This evidence featured a number of strongly worded and personalised attacks on Mr. O’Callaghan, whom he described as a crook and a blackmailer and as someone who had held him up to ransom. His more specific allegations, of which he had apparently given no notice, may be summarised as follows:
Mr. Gilmartin was shown by counsel for the tribunal the agreement into which he had entered with Mr. O’Callaghan on the 31st January, 1989. This was signed by him and his signature had been witnessed by his solicitor. His previous complaint had been that the agreement did not contain all the terms actually agreed between himself and Mr. O’Callaghan, and on which they had shaken hands. In evidence, however, he said that the agreement which he was shown was not the agreement which he signed and that it had been falsified by Mr. O’Callaghan and his (Mr. O’Callaghan’s) solicitor so as to alter its terms.
That at their first meeting of the 7th December, 1988, Mr. O’Callaghan told him that he had just come from a dinner for the launch of the Lee tunnel and that he had had the line of the tunnel altered so as to suit a named site that he owned.
That one of the reasons why he had paid £50,000 to the then Minister for the Environment by way of a cheque in which he had left the payee blank was for the purposes of stopping the activities of Mr. O’Callaghan. He had not mentioned Mr. O’Callaghan in this connection in the redacted form of his statement, but had named others.
That Mr. O’Callaghan had given false information to the British Revenue which had resulted in Mr. Gilmartin being declared bankrupt.
That Mr. O’Callaghan had bribed a named councillor.
That the purchase by Mr. O’Callaghan of Mr. Gilmartin’s interests in a site at Balgaddy was the result of Mr. O’Callaghan holding him to ransom.
That Mr. O’Callaghan, with the connivance of a bank, stole Mr. Gilmartin’s money and used it to bribe councillors to block rezoning for the Quarryvale scheme.
That Mr. O’Callaghan had encouraged Mr. Gilmartin not to cooperate with the garda investigation into his allegations.
It emerged in the course of cross-examination of Mr Gilmartin on behalf of another party that, in addition to the written statement of Mr Gilmartin which had been circulated, Mr Gilmartin had provided other written and oral material to the Tribunal. In particular, he had provided a statement to his then solicitor, which the latter had provided to the Tribunal, though under conditions of strict confidentiality and subject to other caveats.
I do not wish to go into the circumstances in which the Tribunal declined to make these earlier documents available in any detail. Part of the reasons for the Tribunal’s decisions forms part of the complaint made in these proceedings and I will consider them in that context. It suffices, I think, to recall the following points. When counsel asked Mr Gilmartin, in the course of cross-examination, whether he had any objection to counsel for affected parties being allowed to see the earlier material, the Chairman of the Tribunal intervened to rule that it was not a matter for Mr Gilmartin but for the Tribunal to decide what documents could be referred to. Later, in the course of exchanges with counsel, the Chairman stated that, if there was any “significant or glaring” inconsistency between the evidence contained in material which had not been disclosed and the statement of a witness or with his evidence, the material would be brought to the attention of the Tribunal.
In the light of these developments, solicitors for the Appellants wrote to the Tribunal on 18th March and 22nd March 2004 seeking copies of earlier statements. On 24th March 2004, the Tribunal formally ruled that the documents in question were covered by a principle of confidentiality. It had, it said, “a duty of confidentiality to persons from whom it has received documents or information in confidence.” That ruling is set out in full in the judgment of Hardiman J in O’Callaghan v Mahon No 1.
Mr O’Callaghan (but not the other Appellants in the present proceedings) promptly applied for leave to apply for judicial review of that decision. Leave was granted by order of the High Court dated 1st April 2004. The High Court (O'Neill J) granted the relief sought. An order of certiorari quashing the decision of the Tribunal was made on 14th July 2004. The order included a declaration to the effect that the refusal of the Tribunal to permit Mr O’Callaghan “through his representatives access to the documents which are relevant to the present or current module of the inquiry (and not to include notes made by counsel solely for their purpose but to include information recorded or transcribed from the Notice Party [Mr Gilmartin] by counsel) recording prior oral and written statements by Tom Gilmartin to the Tribunal .... for the purpose of cross-examining the said Tom Gilmartin amounts to a failure by the Respondents to observe and protect [Mr O’Callaghan’s] rights to fair procedures and to natural and constitutional justice.”
The Tribunal appealed the High Court order to this Court. By order dated 15th March 2005, this Court dismissed the appeal, but remitted the matter to the High Court in order to determine the question of what documents should be made available to Mr O’Callaghan. Hardiman J, in his judgment reviewed the history of Mr O’Callaghan’s dealings with the Tribunal in great detail and concluded:
A full and unhampered right to cross-examine a person who makes grave allegations against another at a tribunal of inquiry is an important constitutional right. It cannot be impinged upon without a firm basis in law, which must itself be consistent with the Constitution. The only basis suggested here is a unilateral policy of confidentiality adopted by the tribunal, never communicated to Mr. O’Callaghan and doubtfully, if at all, communicated to Mr. Gilmartin. The tribunal’s status as master of its own procedures does not extend to interference with so vital a constitutional right: such interference could not possibly be described as procedural in nature.
Geoghegan J, however, with whom the other members of the Court agreed, while agreeing that the decision of the Tribunal should be quashed, took a narrower view. He said:
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.
The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In particular having 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.
Following remittal of the case to the High Court, there were ongoing disputes as to the extent to which the Tribunal were entitled to redact particular documents. These disputes were the subject of rulings by O’Neill J. In a considered judgment of 29th July 2005, he decided that certain categories of redaction were permissible and that others were not.
Following O’Callaghan v Mahon No 1., the Tribunal discovered additional documents in two stages.
Firstly, documents were discovered in redacted form. An accompanying note listed various reasons for the redactions. These included the fact that the redaction related to matters that the Tribunal had determined not to investigate in public; that it related to personal details of an individual and that its publication might constitute unjustified interference with his rights; that, for various reasons the material redacted did not relate to matters being investigated.
Secondly, following the judgment of O’Neill J, some redactions were removed in compliance with that judgment.
It is the discovery of these additional documents which has led to the present proceedings. Mr O’Callaghan, in his affidavit, states that he was greatly disturbed by the contents of these documents and that the Tribunal, acting in accordance with any standard of basic fairness and intending to treat all parties appearing before it equally, would have disclosed these documents from the very beginning. However, these allegations relate to the substance of the claim made in the proceedings and I will return to consider them more fully at a later point in this judgment.
On 13th September 2005, the solicitors for the Appellants wrote to the solicitors for the Tribunal. The stated purpose of the letter was to “complain about the unfairness of the manner in which the tribunal [had] proceeded against [their] clients as compared to the tribunal’s star witness (and principal accuser in respect of [their] clients) Tom Gilmartin.” The letter contained a lengthy account of the Appellants’ complaints. In particular, it accused the Tribunal of actual bias. The letter accused the Tribunal of huge disparity of treatment between that afforded to the Appellants and that afforded to Mr Gilmartin, who was described repeatedly throughout the letter as the Tribunal’s “star witness.” All of this led to the following paragraph:
In the light of the foregoing our clients cannot have any faith in the fairness of the process or procedures of the tribunal. They are firmly of the view (and we have so advised) that this tribunal cannot fairly adjudicate upon the allegations of impropriety against them. In particular, our clients reasonably suspect bias and partiality on the part of the tribunal in their treatment of Mr Gilmartin on the one hand and our clients on the other. In those circumstances, we are writing to invite you now to confirm that in the light of the foregoing the tribunal will desist from further investigating or making any findings in relation to matters affecting our clients or any of them.
The letter concluded by stating that, in that absence of a positive response, proceedings would be commenced.
The substantive response of the Tribunal was contained in a lengthy letter dated 26th September 2005, which endeavoured to provide a detailed and point-by-point rebuttal of the allegations made in the letter of 13th September. The letter contained the following penultimate paragraph:
The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issues involving your clients. Notwithstanding this belief on the part of the Tribunal, your clients may rest assured that the Members of the Tribunal will continue to act fairly and impartially in carrying out the tasks given them by the Oireachtas and that they will reach such conclusion as may be open to them only on the basis of the evidence heard at public sessions with which all affected parties will have been afforded the opportunity of exercising their constitutional rights.
This exchange of correspondence has been characterised as “robust” in the course of the hearing of the appeal. The Appellants took immediate strong objection to the first sentence of the paragraph quoted immediately above, claiming that it meant that they had been “devious and untruthful.” They rely upon it as one of their allegations of objective bias. The very least that might be said about it is that it was unwise. I will deal with the substantive complaint based on it later in this judgment. The Tribunal attempted in subsequent correspondence to explain it away. In a latter of 27th October 2005, the solicitor for the Tribunal stated that the objectionable sentence related not to the clients of the solicitors but to the solicitors themselves and continued:
|Once again I am directed by the Tribunal to reiterate that the Tribunal has not concluded that your clients have been devious or untruthful in their dealings with it and, indeed, have never used these words in connection with either you or your clients.|
On 28th November 2005, the High Court (Abbot J) made an order granting leave to the Appellants to apply by way of judicial review for an order of prohibition or an order of certiorari so as to prevent the Tribunal from further investigating or making any finding in relation to matters affecting them. The gist of the complaints identified as grounds for the application is as follows:
Mr Gilmartin made a large number of profoundly serious allegations against the Appellants;
These allegations were false;
They affected the Appellants’ good name and reputation in business;
The Appellant had no prior notice of these allegations;
The Tribunal did not either directly or through its counsel attempt to prevent Mr Gilmartin from making these allegations;
In the course of cross-examination, it emerged for the first time that Mr Gilmartin, in meetings with the Tribunal team, had made certain oral and written statements, which had not been circulated with the written brief;
The Tribunal ruled that it would not conceal from interested parties information which suggested that there was a glaring inconsistency between an account given on a previous occasion and one given publicly;
The Tribunal, nonetheless, refused to allow counsel for the Appellants to have access to earlier documents or to cross-examine about them;
The Tribunal’s further ruling of 24th March 2004 and the history of O’Callaghan v Mahon No 1. was then recounted;
The Tribunal’s refusal to permit the Appellants to cross-examine on the basis of the undisclosed documents was a breach of the principles of natural and constitutional justice and basic fairness of procedures;
From the disclosure of documents it was evident that Mr Gilmartin had had contact with counsel for the Tribunal on at least 36 occasions and they travelled to London to meet him;
The information and documents which had not been disclosed were highly relevant and disclosed serious inconsistencies with the evidence given by Mr Gilmartin;
Knowing of these inconsistencies, the Tribunal determined that there were no inconsistencies;
A member of the Tribunal made a remark to the effect that Mr O’Callaghan knew one of the key witnesses at the Tribunal;
The key allegation is contained in the following:
The Applicants cannot have and do not have any faith in the fairness of the process or procedures of the Tribunal. They are of the view and are entitled to have the view that the Tribunal cannot fairly adjudicate upon allegations of impropriety against them. The Applicants reasonably suspect bias and partiality on the part of the Tribunal in the treatment of Tom Gilmartin on the one hand and of the Applicants on the other hand. Alternatively there is a real likelihood of bias or partiality.
As the case was presented to the High Court, it was summarised by the learned trial judge, Smyth J, as consisting of two central claims: Firstly, that from a reading of the documents newly disclosed as a result of O’Callaghan v Mahon No 1. , it was clear that the Tribunal had denied the Appellants fair procedures and had not treated them fairly in comparison with Mr Gilmartin; secondly, that there was an appearance of bias and partiality on the part of the Tribunal. Those have remained the two broad headings of complaint, as presented in the course of the appeal.
The learned trial judge noted the Appellants’ contention that the Tribunal could not credibly have found that there were not inconsistencies, which were, to use the Tribunal’s own language, “gross, or glaring or significant.” He considered that any prior erroneous assessments of the consistency or inconsistency of evidence stood set aside and could be addressed in open session at any future hearing of the Tribunal. In a passage which has been subjected to particular criticism on this appeal, he found it inappropriate to “examine in minute detail a large number of issues which relate to factual events or to carry out microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in relation to particular documents or events.” He was satisfied that the Tribunal had adapted its policies following O’Callaghan v Mahon No 1. and was anxious that Mr O’Callaghan be given a full opportunity to cross-examine.
The learned trial judge reviewed and rejected a large number of individual complaints of unequal treatment. He did not accept that there was any evidence of inequality of treatment. I will refer, at a later point, to the findings of the learned trial judge on the issue of fairness.
He also rejected the allegation of objective bias, i.e., that the Tribunal had formed a view that certain inconsistencies were insubstantial and could not, therefore, any longer assess the credibility of Mr Gilmartin. He said that, whatever view the Tribunal had taken prior to O’Callaghan v Mahon No 1., must now be reviewed by it: the effect of the decision in that case was that “once any inconsistency appeared it was the entitlement of the Applicants to be informed of it and it was not the prerogative of the Tribunal to determine the significance or effect of same until after such had been subject of cross-examination and/or submissions thereon; .... any tentative views that may have been formed must be recast ....”
The learned trial judge reviewed at length the authorities with regard to the interpretation of the test for the establishment of objective bias. Since these will need to be reviewed later in this judgment, it suffices to say that the learned trial judge concluded that no case for objective bias had been made out.
It is not necessary to set out in full the grounds of appeal advanced in the notice of appeal of the Appellants. They amount to a comprehensive challenge to the High Court judgment. The principal criticisms of the High Court judgment are:
Confusion of subjective and objective bias;
Applying the incorrect test for objective bias or misinterpreting the test;
Considering irrelevant matters, in particular the assurances of the Tribunal that they would respect the Appellants’ right to fair procedures and to test Mr Gilmartin’s evidence in cross-examination;
Failure to consider the detailed individual complaints of the Appellants;
Failure to consider the decisions made by the Tribunal as to inconsistencies between the evidence of Mr Gilmartin and the documents;
Wrongly stating that the Tribunal was entitled to assume that Mr Gilmartin had not set out to perpetrate deliberate falsehoods;
Failure to hold that Mr Gilmartin had been given special or privileged status.
The Appellants have presented very detailed written and oral arguments to the Court in their appeal. The submissions are made under two headings:
§ The Appellants have not been fairly treated by the Tribunal: they have been denied fair procedures and have been treated in an unequal manner in comparison with Mr Gilmartin; this cannot now be put right;
§ There is an appearance of or reasonable suspicion of bias and partiality on the part of the Tribunal.
In truth it is difficult to segregate these two headings. Counsel for the Appellants did not really develop the first of these complaints as a separate heading. In particular, Mr Paul Gallagher, Senior Counsel, appearing for the Appellants confined his oral arguments almost entirely to the issue of objective bias. The Tribunal cannot, of course, as it rightly accepts, any longer defend its decisions not to disclose prior statements of Mr Gilmartin. Those decisions were quashed in O’Callaghan v Mahon No 1. It is common case that the Tribunal is bound to respect the rights of the Appellants to have access to all those documents which became the subject of the ultimate order of O’Neill J in July 2005 and to use them to cross-examine Mr Gilmartin. Hence, it cannot be contended that the Tribunal is disabled by the mere fact of its earlier decisions not to disclose this material from continuing with its inquiry into the affairs of Mr O’Callaghan and the other Appellants.
There remains, as part of the complaint of denial of fair procedures, only the argument that the Tribunal has shown itself by its actions to be so protective of and favourable to Mr Gilmartin that it cannot be presumed to be able to judge the affairs of the Appellants fairly. This argument overlaps to a very large extent with the claim based on objective bias. The factual basis of this allegation can be summarised as follows. The Tribunal had shown itself to be unduly favourable to and protective of Mr Gilmartin. He had enjoyed privileged access to Tribunal counsel. The material disclosed demonstrates some 56 individual contacts between Tribunal counsel and Mr Gilmartin. They travelled to England to meet him. They assisted him in the preparation of an affidavit. Mr Gilmartin was recorded as attributing remarks to Tribunal counsel to the effect that the latter had had a strong case in litigation with a bank and that they would prove fraud against Mr O’Callaghan. This allegation of Mr Gilmartin has been expressly denied on behalf of the respondents. That denial is now accepted. The Appellants maintain the complaint insofar as the Tribunal failed to disclose that Mr Gilmartin had made this allegation, which it did not itself believe.
Responding to the argument based on lack of fair procedures, counsel for the Tribunal argued that there was no reason to suppose that fair procedures would not be respected. It was accepted that an error had occurred when the Tribunal refused to disclose the documents, but this did not mean that the Appellants would not obtain a fair hearing. There is a distinction between cases where substantive decisions have been taken on the merits following an unfair procedure and the present case, where no findings have been made by the Tribunal.
Conclusion on unfairness
The unfairness argument is essentially that the Tribunal has unduly favoured and protected Mr Gilmartin in comparison with Mr O’Callaghan. It is distinct from the bias argument. It alleges actual unfairness. The learned trial judge judged this issue, which is essentially a matter of fact. He concluded: “I am satisfied that the construction sought to be placed on the dealings of the Tribunal with Mr Gilmartin do not in any objective sense amount to an inequality of treatment and are explained in the replying affidavits of the Respondents.” I am satisfied that this was a reasonable conclusion and that it has not been shown to be in error. It was based on an evaluation of the evidence advanced by the Appellants in support of their charge of unfairness against the Tribunal. Mr Gilmartin had made a number of allegations which the Tribunal considered to be relevant to its terms of reference. The Tribunal was obliged to investigate them. The performance of that obligation requires the Tribunal to take such steps as it thinks proper in the conduct of that investigation. The Appellants do not contest these propositions. They complain that the Tribunal afforded excessive and privileged access to its services and attention to Mr Gilmartin as compared with Mr O’Callaghan. That argument fails, in my view, to take account of the fact that Mr Gilmartin was making allegations: Mr O’Callaghan was not. The Tribunal necessarily had to take care to investigate the allegations. From time to time, those investigations took unusual forms. Certainly, counsel appear to have engaged in work which does not normally fall to barristers. It is not for this Court to pass judgment on those matters or on the decisions made by the Tribunal as to the course of its investigations. A particular focus of the Appellants’ criticism of the judgment of the learned trial judge is the following dictum:
The Tribunal, if it did form a preliminary view as to the veracity of what Mr Gilmartin was saying at the time or would say in the future were, in my judgment, entitled to consider that he would be telling people the truth. They were in my judgment not unreasonably entitled to assume that the man did not set out to deliberately perpetrate falsehoods.
The Appellants, in their written submissions strongly, but in my view unjustly, criticise this dictum as “extraordinary.” They allege that it means that “so far as the Tribunal is concerned the appellants are starting from a presumption that what they are saying is untrue .... The Tribunal had determined that what Mr Gilmartin was telling the truth and the appellants were not ....” I regard those assertions as completely unjustified. The Tribunal must, in the first instance, investigate allegations. It must decide whether allegations which have been made to them justify proceeding to public hearing. Final conclusions are reached only after full public hearings. The Tribunal has asserted that it holds this position time out of number. The Appellants’ submissions fail to appreciate the absolute necessity for the Tribunal to do its work in stages, or to appreciate the distinction between the preliminary investigative and the public hearing phase and to the obvious practical need for the Tribunal to make provisional decisions as to how to proceed with its work at various stages. These do not entail judgments on credibility, but judgments that allegations are worthy of being advanced and tested at public hearing. I believe that all the complaints of alleged unfair treatment by favouring Mr Gilmartin can be answered in that way. I am satisfied that Smyth J was completely entitled to reach the conclusion he did. He has not been shown to have been in error. I would dismiss the appeal insofar as it relates to alleged unfairness.
Consideration of the argument on objective bias
The principal argument and almost the entire focus of the Appellants’ case was that there is to an objective observer a reasonable suspicion of bias and lack of impartiality on the part of the Tribunal.
I am driven by the scale and detail of the Appellants’ submissions to make one preliminary observation, to which I will return. The learned trial judge, in a passage heavily criticised by the Appellants, remarked:
It is inappropriate for the court to examine in minute detail a large number of issues which relate to factual events or to carry out a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in relation to particular documents or events.
As I have already noted, the notice of appeal complains of the failure of the learned trial judge to “address the individual and specific issues raised by the Applicants ....” The written submissions of the Appellants to this Court express the Appellants’ complaint about the impugned passage in the following terms:
This was not a case of seeking to challenge the merits of a decision by placing it under the microscope. Rather this was a fundamental challenge to the entire manner in which the Tribunal had treated the appellants as well as a claim of objective bias. It is the learned judge who erred in placing some incidents complained of under the microscope separately instead of stepping back and looking at the pattern of behaviour of the Tribunal which was disclosed. The pattern of behaviour by the Tribunal loomed over the whole horizon and did not need a microscope or for that matter a telescope to see it. It was there in front of everyone.
[emphasis in the original]
I confess to having great difficulty with this passage. It is, after all, key to the Appellants’ approach. The learned trial judge had not referred to placing a single “decision” under the microscope. It is clear that he understood that he was being invited to carry out “a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations ....” It will become apparent later that whether, as a matter of law, objective bias can be inferred from a pattern of individual decisions is very much in contention between the parties. If that is indeed the Appellants’ case, I do not see how detailed – I avoid repeating the word “microscopic” – examination of individual decisions can be avoided. It is true that counsel for the Appellants disavowed any wish to infer bias from a series of decisions. Nonetheless, they criticise the learned trial judge for failing to examine the decisions of the Tribunal. In fact, the approach that was adopted to the facts was to examine at least seven separate aspects of the Tribunal’s conduct in minute detail. Mr O’Callaghan’s grounding affidavit takes some fourteen pages and forty eight paragraphs to detail a large number of individual complaints regarding the decisions of the Tribunal. Mr Gallagher’s oral argument, while reducing the number to seven, nonetheless, involved highly detailed analysis of individual items of evidence.
It might be inferred that the Appellants were taking a different approach from the concluding sentence of the paragraph of their submissions which I have quoted above: “It was there in front of everyone.” That sentence seems to imply that the Tribunal had expressed in clear and overt terms a preference, in advance of hearing any evidence or cross-examination, for the evidence of Mr Gilmartin over that of Mr O’Callaghan. That would be to prejudge the credibility of the witnesses. The Appellants do, in fact, allege apparent or objective bias against the Tribunal on this key credibility issue. However, they have not pointed to any a priori or advance statements of prejudgement. This aspect of the case was discussed in the context of two Australian decisions.
The essence of the Appellants’ case on objective bias is as follows.
Mr Gilmartin has made very serious allegations against the Appellants. They are disputed. Thus credibility is and will be central to the hearings before the Tribunal. In reality, this conflict exists almost, though not entirely, between Mr Gilmartin and Mr O’Callaghan, in particular. The Tribunal is necessarily obliged to maintain an open mind on all issues.
The Tribunal, in January 2004, circulated a brief in respect of its Quarryvale 1 module. In explanatory memoranda circulated both before and contemporaneously with the circulation of the brief, the Tribunal stated that documents and information it had assembled in the course of its preliminary investigations had been considered for their relevance to the public hearings. The brief would be supplemented when new documents or issues came to light. Thus it contained all relevant documents.
At the time of circulation of the brief, the Tribunal had, in its possession, documents evidencing prior statements by or interviews with Mr Gilmartin. These contained material which was directly or indirectly inconsistent with the single statement of Mr Gilmartin which was circulated.
On 3rd March 2004, Mr Gilmartin in his evidence at a public sitting of the Tribunal, made a number of extremely serious allegations against Mr O’Callaghan, of which he had no notice. It emerged in the course of examination by counsel for another person, that the Tribunal had other material in its possession. This also contained material which was inconsistent with the evidence of Mr Gilmartin. The Tribunal stated that it would disclose documents or information which revealed inconsistencies with the evidence of Mr Gilmartin. It used different words to qualify the sort of inconsistency which would lead to a document being revealed. They were variously: “gross;” “glaring;” “significant.” The Tribunal had such material in its possession. Its failure to disclose it was contrary even to its own stated standard.
I have already summarised the decisions whereby the Tribunal declined to disclose these other documents and other information. The Appellants claim that these decisions meant that the Tribunal was determining that the undisclosed material was either not relevant to the matters being inquired into or that it was not inconsistent with the evidence of Mr Gilmartin and, in either event, that an independent and unbiased onlooker in possession of all the facts would reasonably apprehend that the Tribunal thereby had determined that Mr Gilmartin was a credible witness and that Mr O’Callaghan was not. Thus, the case of objective bias was established.
This Court has, in O’Callaghan v Mahon No 1., determined that those decisions of the Tribunal, whereby it refused to disclose the earlier statements of Mr Gilmartin, were unlawful. They were set aside. O’Neill J determined the extent of the documents which had to be disclosed. The Tribunal now explicitly accepts, as it must, that its earlier decision not to disclose was wrongful and in breach of the Appellants right to fair procedures.
Mr Gallagher insisted, in his oral presentation, that the Appellants were arguing only for the appearance of bias and that they did not and did not need to go further. There was an appearance of pre-judgment by the Tribunal on the issue of credibility. The Tribunal’s insistence that the Appellants now have a complete right to cross-examine cannot remedy the wrong which has already been done. The Tribunal has made repeated rulings that documents should not be disclosed.
He cited Lawlor v Flood  3 I.R. 107; State (Hegarty) v Winters  I.R. 320; Dublin Wellwoman Centre Ltd v Ireland  I.L.R.M. 408; O’Neill v Beaumont Hospital  I.L.R.M. 419; Orange Communications Ltd. v Director of Telecommunications Regulation  4 I.R. 159; Spin Communications Ltd v Independent Radio and television Commission  4 I.R. 411; Joyce v Minister for Health and Children  4 I.R. 293; Landers v Director of Public Prosecutions  2 I.R. 363; R v Watson, ex parte Armstrong 919760 50 A.J.L.R.; Locabail (UK) Ltd. v Bayfield Properties Ltd  2 W.L.R. 870; Bula Ltd. v Tara Mines Ltd  4 I.R. 412.
As to bias, the proper test was whether a reasonable man, who knew all the relevant circumstances, would consider that there was a real likelihood of bias. Mr John M Fitzgerald, Senior Counsel, for the Tribunal said that he would not. It was relevant to note that the three members of the Tribunal were judges of a court established under the Constitution. The Appellants had to prove bias in the sense that the members of the Tribunal had reached a fixed final decision, that they had set minds that they had pre-determined the matter. He cited R v Watson. There was no such evidence. He submitted, on the authority of Orange Communications, that bias could not be inferred from a number of errors or a series of errors made in the course of the decision-making process. He cited the judgment of Murray J, as he then was, in Spin Communications. Something occurring outside the process is required. The process here commenced with the appointment of the former sole member, Mr Justice Flood. Mr Fitzgerald cited the Australian case of Vakauta v Kelly (1989) 87 A.L.R., and Landers v Director of Public Prosecutions as examples of cases where a judge had made statements which would excite, in the minds of reasonable persons, an apprehension that the judge might not bring an unprejudiced mind to the matter before him. Mr Michael Collins, Senior Counsel, also referred to AMEC Capital Projects v White City Estates (20050 1 All ER 723.
The cases on bias
Modern Irish case-law is rich with examples of alleged or established objective bias. The parties did not disagree significantly with regard to the applicable principles, save for one nuance concerning whether the affected party’s own perception in respect of bias forms part of the test or whether the test is exclusively objective. This discussion turned on one passage from the judgment of Finlay C.J. in O’Neill v Beaumont Hospital. That case was one of alleged pre-judgment in that the Chairman of the Board of the defendant Hospital was recorded as having confirmed the opinion of the chief executive officer of the hospital, in a sense adverse to the plaintiff’s interest in the extension of his contract of employment. Finlay C.J. said:
I am satisfied that the proper standard to be applied by this Court .... is the question of whether a person in the position of the plaintiff, Mr O’Neill, in this case who is a reasonable man, should apprehend that his chance of a fair and independent hearing of the question as to whether his services should be continued or terminated does not exist by reason of pre-judgment of the issues which are involved in that by members of the board.
At a later point of the judgment the learned Chief Justice repeated the expression, “a person in the position of the plaintiff who is a reasonable man ....” At one point in the argument, Mr Gallagher, in reliance on this passage, added that Mr O’Callaghan was or was accepted to be a “reasonable man.” He submitted that this could be taken into account. I do not think, however, that the Chief Justice was making a finding that the plaintiff in the case before the Court was a “reasonable man.” Nor was his conclusion based on such a finding. Insofar as the plaintiff was drawn into the test at all, it was in the sense of a hypothetical person in the position of the plaintiff, who was also a reasonable man.
Denham J used similar language in, speaking for a unanimous Court, and having cited the passage from O’Neill, in her judgment in Dublin Wellwoman Centre:
What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge ....
However, the introduction of the perception of the affected party into the test tends to confuse its strictly objective quality. Denham J reviewed a number of judgments from various jurisdictions in her subsequent judgment in Bula Ltd. v Tara Mines Limited. Those authorities included the dictum of Mason C.J. and McHugh J in Webb v The Queen (1993-1994) 181 C.L.R. 41, a judgment of the High Court of Australia:
But the premise on which the decisions in this Court are based is that public confidence in the administration of justice is more likely to be maintained if the Court adopts a test that reflects the reaction of the ordinary reasonable member of the public to the irregularity in question. References to the reasonable apprehension of the 'lay observer' Vakauta (1989) 167 C.L.R., at pp. 573 to 574, the 'fair-minded observer' Livesey (1983) 151 C.L.R. 300; Laws (1990) 170 C.L.R. 87, the 'fair-minded, informed lay observer' ibid., at p. 92, 'fair-minded people' Watson (1976) 136 C.L.R. at p. 263, the 'reasonable or fair-minded observer' Vakauta (1989) 167 C.L.R. at p. 585, the 'parties or the public' Ex parte Hoyts Corporation Pty. Ltd. (1994) 68 A.L.J.R. at p. 182; 119 A.L.R. at p. 210, and the 'reasonable person' Vakauta (1989) 167 C.L.R. at p. 576, abound in the decisions of this Court and other courts in this country ....
McGuinness J, in the same case cited the dictum of Denning M.R. in Metropolitan Properties Co. (F.G.C.) Ltd. v Lannon  1 Q.B. 577 at p. 599:
in considering whether there was a real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.
The statement of principle made by Denham J at page 441 of Bula v Tara Mines seems to me to be decisive:
The submissions in relation to the test to be applied roved worldwide. However, there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective, it is whether a reasonable person in the circumstances would have a reasonable apprehension that the applicants would not have a fair hearing from an impartial judge on the issues. The test does not invoke the apprehension of the judge or judges. Nor does it invoke the apprehension of any party. It is an objective test – it invokes the apprehension of the reasonable person.
In my opinion, principle requires that the test be strictly objective. Otherwise, it would be susceptible to variation dependant on the attitude of the individual party. The court is not required to find whether the complaining party is or is not reasonable. An unreasonable affected person is as much entitled to complain of objective bias as a reasonable one. It is the hypothetical objective observer that matters. He or she is always deemed to be reasonable.
Only one addition is necessary. As stated by Finlay C.J. in O’Neill v Beaumont Hospital, the hypothetical reasonable person is one who is not “either over-sensitive or careless of his own position.” This is probably comprehended in the notion of a reasonable observer. It is, of course, necessary that a party who apprehends that there is a risk of bias invoke its existence. After that, the test is purely objective.
It should be added that, as appears from these and other judgments that the standard to be met is, as stated by Denham J, one of “reasonable apprehension.” This is also well grounded in the authorities. I say this because there were points in the submissions of Mr Collins on behalf of the Tribunal when a higher standard of proof seemed to be implied: one which imputed to the Appellants a requirement to argue that the only inference that could be drawn from its behaviour was that the Tribunal was actuated by bias. Indeed Finlay C.J., in O’Neill v Beaumont Hospital, considered that, in applying the test to the particular facts a judge “should take the interpretation more favourable [to the plaintiff] where there is ambiguity ....” In that case he was interpreting the minutes of a minute with a view to deciding whether the chairman had given an appearance of pre-judgment. The standard, as consistently enunciated, is one of reasonable apprehension.
In considering whether pre-judgment giving rise to a reasonable apprehension of objective bias has been established in the present case, two lines of authorities need to be considered. The first concerns the question of whether bias can be inferred from a pattern of decisions. The second concerns the quality or extent of prejudicial statements required to satisfy the test for pre-judgment.
Firstly, counsel for the Tribunal submit that bias cannot, on the authorities, be inferred from a number of erroneous decisions of the decision-making body. Here, the Appellants allege that that the Tribunal has made repeated rulings on the relevance of the undisclosed material and that, these rulings were wrong, in the manner related above, and consequently that it had adjudicated on the matter of credibility.
Keane C.J. in Orange Communications reconsidered the law on objective bias at some length. He cited, inter alia, a well-known passage from the judgment of the Court of Appeal in England in Locabail (UK) Ltd. v Bayfield Properties Ltd, which is cited above. He proceeded to observe that the case before the court was one of alleged objective bias and proceeded:
But the difficulty of proving actual bias remains and we are, of course, concerned with a case in which the trial judge found that there was no actual bias. The authorities, however, lend no support whatever to the proposition which found favour with the trial judge in the present case, i.e. that the court is entitled to infer from the establishment of a number of errors in the impugned decision, or the process leading to the decision, that the decision itself was vitiated by the existence of bias which can be equated to objective bias.
It is not surprising that no authority has been cited in support of such a proposition because it is entirely contrary to principle. In the case of a decision by a court, a litigant who succeeds in identifying errors in a judgment is entitled to feel aggrieved, unless they are of little consequence to the result. The law affords him an ample remedy in almost every case by way of appeal to a superior court. In the case of decisions of the High Court, that remedy is to some extent qualified by the reluctance of this court to interfere with findings of fact where they are based on credible evidence, but no one has ever suggested that either at this level, or at any other appellate level, the courts are in the position that the normal appellate machinery is not capable of remedying injustice brought about by clear errors of fact or law on the part of the court concerned and that, in order to achieve justice in such cases, it is necessary to have recourse to so strained and artificial a concept of bias.
Barron J, in his concurring judgment stated that: “Bias always exists before the hearing or other process ....” (page 221). At page 228, he said:
However, it seems to me that the essence of bias is the existence of some factor as already explained that constitutes a set of circumstances from which a reasonable observer might conclude that there was a real possibility that such factor would cause the decision maker to seek a particular decision or which might inhibit him or her from making his or her decision impartially and independently without regard to such factor. As I have already indicated, this factor must predate the decision complained of or the contemplated hearing.
Murphy J at page 241 added:
To condemn as biased the decision of a judge or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor external to the subject matter of his decision and, secondly, that in relation to the particular decision the external factor operated so as to tilt the judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must be proved as a fact on the balance of probabilities: the operative effect of an impermissible factor (where it does exist) is presumed.
He also stated at page 245:
.... no authority was cited in support of the proposition that bias could be inferred from a series of adverse findings in a particular case.
Having quoted from the relevant conclusion of the learned trial judge in that case, he continued:
In my view the fallacy of these conclusion results from the fact that the learned judge used her findings, and the inferences which a reasonable person might draw therefrom, for two different purposes. First, to establish the existence of a unacceptable extraneous factor with the potential for influencing the decision of the evaluators and, secondly, the suspicion, belief or perception that such extraneous factors did, or might have, become operative in the instant case. The standard of proof of the existence of bias on the one hand, and its operation on the other, are very different. It is possible to suspect the unconscious operation of an extraneous factor but that does not prove its existence. The plaintiff sought to prove the existence of an extraneous factor and its operation by the same evidence. In my view the evidence was wholly inadequate to prove the fact of bias – I hesitate to use the words objective fact of bias – and without that the reasonable observer could not prove its conscious or unconscious operation.
Geoghegan J spoke to similar effect at page 254:
I have deliberately listed in full the instances given by Lord Bingham of situations where normally bias would not be held to exist on the one hand and situations where bias would be held to exist on the other hand. I have done this with a view to demonstrating the type of situations which are envisaged. In every single instance Lord Bingham is talking about some outside fact which could conceivably be seen influencing the judge. There is not the slightest suggestion that bias could ever be established as a consequence simply of the decisions of the judge.
To similar effect, Murray J, as he then was, at page 431 ofhis judgment in Spin Communications, cited above, having cited Orange, stated:
Moreover, for objective bias to be established it must be shown that there existed some external factor extraneous to the decision making process which could give rise to a reasonable apprehension that the decision maker might have been biased. Furthermore, this external factor must exist prior to the decision made.
The result of all these judgments is that objective bias cannnot be inferred from the fact that a court or tribunal has made a number of erroneous decisions. Bias, if it exists, must flow from some element external to the decision-making process. There are many examples. The best known are some personal or financial interest of the decision-maker either in the subject-matter of the decision-making process or in relation to the parties to the dispute over which the decision-maker is to preside. Overt and declared bias is, of course, another example. That comes under the heading of pre-judgment. The case of O’Neill v Beaumont Hospital was such an example.
The Appellants claim that this is a case of pre-judgment. They claim that that they have a reasonable apprehension, or more precisely that a reasonable independent observer would have such an apprehension, that the Tribunal has pre-determined the issue of credibility in favour of Mr Gilmartin and against Mr O’Callaghan.
As already stated, this is based on the repeated decisions, already mentioned in detail, of the Tribunal not to disclose material damaging to the credibility of Mr Gilmartin.
Mr Gallagher relied, in particular, on the decision of the High Court of Australia in R v Watson, ex parte Armstrong, cited above. In that case, a judge at the interlocutory stage of family-law proceedings, and at a time when he had not seen either party in the witness box, ruled that “he would not accept the evidence of either party – or even an admission – unless it was corroborated.” This was the principal complaint but there were others. A majority of the court took the view that the judge “was not at that stage entitled to form the settled view that neither party was worthy of credit, or to impose on them both the extra-legal requirement that their evidence must be corroborated, but a reasonable observer would have been justified in thinking that he had done so.” (emphasis added). An order of prohibition was made. Mr Gallagher pointed to the approval of this decision in Orange Communications. Barron J, in his judgment in Orange Communications, described R v Watson as one based on predetermination: “The judge would have approached the case upon the basis that he would not be able to accept the evidence of either party.” (Page 224 of the judgment.)
The Irish case principally cited in support of the pre-judgment argument was State (Hegarty) v Winters, where the property arbitrator had visited the lands in respect of which he was to assess compensation. He was accompanied by the engineer employed by one party. There was no representative of the opposing party. The former Supreme Court was asked to apply to those circumstances the rule that “in any proceedings before any tribunal called upon to decide any issue between parties not alone must justice be done, but it must seem to be done.” (Page 334 of judgment.) Maguire C.J. cited R. v Sussex Justices, ex parte McCarthy  1 K.B. 256, where Lord Hewart C.J. made that celebrated statement, and where the complaint was that the justices’ clerk had retired with the magistrates. Maguire C.J. concluded:
The action of the arbitrator in going upon the lands the subject-matter of the arbitration might, in the view of this Court, reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. The fundamental rule that it is necessary not alone that justice be done, but that it must seem to be done was broken and in our opinion the award cannot be allowed to stand.
Counsel for the Respondents cited other cases concerning pre-judgment. Most striking among these was a further decision of the High Court of Australia: Vakauta v Kelly, cited above. In a case of assessment of damages for personal injury, the trial judge, before hearing the evidence of the appellant’s medical witnesses, referred to them as “an unholy trinity.” He continued: that they belonged to “the usual panel of doctors who think you can do a full week’s work without arms or legs;” whose “views are almost inevitably slanted by the [Government Insurance Office] by whom they have been retained consciously or unconsciously.” The High Court of Australia, with one dissenting judgment, ordered that the judgment of the trial judge be set aside. The principal judgment was delivered by Toohey J, with whom Brennan, Deane and Gaudron JJ agreed in a separate concurring judgment. It is interesting to note, however, that those three judges, in their concurring judgment were at pains to state that normal judicial interventions, including debate and argument and, presumably, the expression of strong though necessarily provisional views on the subject-matter of the litigation, would not normally be considered to justify a finding of bias. The following helpful observations appear in that judgment:
It is inevitable that a judge who sits regularly to hear claims for damages for personal injury will form views about the reliability and impartiality of some medical witnesses in his or her court .... That does not mean, however, that the judge is disqualified from hearing the particular action or any other action involving the medical expert as a witness. The requirement of the reality and the appearance of impartial justice in the administration of the law by the courts is one which must be observed in the real world of actual litigation. That requirement will not be infringed merely because a judge carries with him or her the knowledge that some medical witnesses .... are likely to be less sceptical of a plaintiff’s claims .... If it were so infringed, the administration of justice in personal injuries cases would be all but impossible ....
Nor will that requirement of the reality and the appearance of impartial justice be infringed if a judge with preconceived views .... disclose the existence of such views in the course of dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case .... It seems to us that a trial judge who made necessary rulings but otherwise sat silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated.
The concurring judgment went on to say that there was “an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice.”
I find myself in full agreement with these views. It is an inherent and invaluable part of the common-law system of justice that open sometimes even vigorous argument takes place between bar and bench. Judges, on a daily basis, express opinions in the form of questions, statements or argument in the course of a hearing. The whole purpose of these exchanges is to enable the parties to address doubts or difficulties raised by the judge. Arguments are tested and contested. This can and frequently does enable counsel to change the judge’s mind. On other occasions, the weakness of an argument is exposed. If judges did not come to the process with some clear, even strongly-held, views, based on the experience they bring to the judicial process, they would be of little value as judges. Parties and their legal advisers assess how a case is going. They discern the approach of the judge. This may lead to a settlement. I am aware that there exists a different culture in the courts of some European countries. I understand that in some it is unheard of for the judge to intervene. I can only say that I do not agree. Of course, a judge may so behave that he steps outside his judicial role. If he does, it will be obvious. In my view, that is what is required, something quite outside the bounds of proper judicial behaviour to establish objective bias, based on judicial statements.
Some cases of irregular or even improper behaviour or remarks by judges in the course of summary trial have been cited. I do not think these are necessarily very helpful.
It seems to me that the most relevant decision of this Court on the issue of pre-judgment bias is that in Dublin Wellwoman Centre, though it was not, in fact, expressly considered under that heading. There it was held that the learned High Court judge should have discharged herself from hearing the case. Denham J delivered the unanimous judgment of this Court on the appeal. That case was concerned a submission made by the judge to government completely outside the judicial process. The plaintiffs, who were engaged in the provision of non-directive counselling to pregnant women, brought an action seeking a declaration that they were entitled to make information available regarding the availability of abortion services in other Member States of the European Community. That contention was contested by the appellants. The disputed issue involved an interpretation of Article 40.3.3 of the Constitution. The trial judge had written, in her capacity as Chairperson of the Commission on the Status of Women, a letter to the Taoiseach in which, as summarised by Denham J she had “voiced a view on the constitutional Article in question.” The judgment stressed the particular importance and relevance of the case and that it involved one of “the most emotive and divisive topics in our community today.” She held that there was a reasonable apprehension of bias. It is clear that the extra-judicial statement of the judge could reasonably have been interpreted as an expression of opinion on the precise issue in the case. Clearly, the case was an exceptional one.
The principles to be applied to the determination of this appeal are thus, well established:
Objective bias is established, if a reasonable and fair-minded objective observer, who is not unduly sensitive, but who is in possession of all the relevant facts, reasonably apprehends that there is a risk that the decision-make will not be fair and impartial;
The apprehensions of the actual affected party are not relevant;
Objective bias may not be inferred from legal or other errors made within the decision-making process; it is necessary to show the existence of something external to that process;
Objective bias may be established by showing that the decision-maker has made statements which, if applied to the case at issue, would effectively decide it or which show prejudice, hostility or dislike towards one party or his witnesses.
I have given careful consideration to the contention of the Appellants that the Tribunal has so prejudged the issue of credibility between them, particularly Mr O’Callaghan, and Mr Gilmartin that an independent person in possession of all the facts would have a reasonable apprehension that the applicants would not have a fair and impartial hearing. The core and substance of the complaint is that the Tribunal has predetermined that Mr Gilmartin is a credible witness and that, inferentially, Mr O’Callaghan will not be believed.
The Tribunal has made no determination in terms on this credibility issue. The Appellants do not point to any statement of the Tribunal to the effect that they believe Mr Gilmartin. They ask the Court to infer such a determination from the decisions of the Tribunal not to disclose documents. The Tribunal has repeatedly and consistently stated from its very beginning that it does not make any findings of fact until all the evidence has been heard. It has constantly repeated this prior to and during the course of these proceedings. It is, of course, clear on the authorities that this is not a decisive consideration. The Appellants go further. They say that it is irrelevant. There have undoubtedly been findings of objective bias even in cases, such as Dublin Wellwoman, where the judge or tribunal has insistently proclaimed his, her or its impartiality. That does not mean, however, that the stated position of the tribunal is irrelevant. Denham J took careful note of the declared position of the learned High Court judge in that case. If the hypothetical independent observer is deemed to know all the relevant facts, that must be one of them. The statements of the Tribunal cannot simply be ignored. They must carry some weight in the balance. That is especially so, where, as here, the Appellants do not allege that the tribunal has made an explicit determination of the issue in contention and the Tribunal repeatedly asserts that it has not done so.
The Appellants accept that, on the authority of Orange Communications, that they cannot ask the Court to infer bias from a series or pattern of erroneous decisions. Nonetheless, in their written submissions, already quoted, they criticise the learned trial judge for his failure to step back and look “at the pattern of behaviour of the Tribunal which .... loomed over the whole horizon ....” Although they relied on the Australian decision in R v Watson, where the judge had expressly ruled in advance that he would not accept the uncorroborated evidence of either party, they can point to no corresponding statement on the part of the Tribunal.
Finally, and most essentially, they ask the Court to infer from a detailed examination of the decisions and related behaviour of the Tribunal that it has predetermined or prejudged the issue of credibility. If that exercise is different from the one condemned by this Court in Orange Communications, I have to confess that the distinction is too fine from me. The Appellants not only ask the Court to look at the pattern of behaviour of the Tribunal, but they have engaged, at the hearing in this Court, in the most minute examination of individual pieces of evidence. The objective being to establish that the Tribunal has determined the credibility of Mr Gilmartin, they necessarily engaged in a fine and detailed comparison of individual statements of Mr Gilmartin with earlier statements and sometimes omissions to make statements.
I have remarked, earlier in this judgment, on the problems posed by this exercise. I suggested during the hearing that it involved the Court in conducting a “mini-tribunal.” For that very reason, I find the exercise fundamentally objectionable. It is the Court that is invited to engage in pre-judgment. I do not propose to embark on such an exercise. The range of conclusions the Court is being asked to reach, based on minute analysis of the documents, include the following broad categories: finding that the omission of Mr Gilmartin to refer to a particular fact on an earlier occasion cast doubt on his credibility; that he had made earlier inconsistent statements, which equally raised such doubts; that he on earlier occasions made outrageous and unfounded allegations against Mr O’Callaghan and others and was thus not to be believed. On the converse hypothesis, this Court might examine a piece of evidence and conclude that it did not appear to raise any such doubts. Should the Court do that? The Appellants throughout their submissions allege, and implicitly invite the Court to decide, that there were gross or glaring or significant inconsistencies between Mr Gilmartin’s evidence and his earlier statements. Should the Court run the risk that it would conclude that there was no prior inconsistent statement of Mr Gilmartin capable of persuading the Court that the Tribunal, in not producing it, was not guilty of bias? Either course would place this Court in a position of expressing opinions on the very matters which are so hotly in contention before the Tribunal. Any judgment of a judge of the Court pronouncing on the discrepancies, if any, between the evidence of Mr Gilmartin and earlier statements would be bound to be used before the Tribunal in an attempt to persuade it either of the credibility of Mr Gilmartin or the reverse. I am fortified in my preference for this rule of restraint by a reading of the judgments delivered today by Denham J and Hardiman J. Each of those judgments contains a minute and careful examination of the facts under the several headings of complaint under which Mr Gallagher invited the Court to examine the decisions of the Tribunal. Denham J and Hardiman J reach opposite conclusions. I agree, however, with the strictures expressed by Denham J “on the use of fact, to micro-analyse decisions of the Tribunal, as if this were an appeal process” and that this represents “an inappropriate use of the process of judicial review.”
I remain of the view that it is for the Tribunal alone to examine the facts. To quote Geoghegan J in his judgment in O’Callaghan v Mahon No 1.: “In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal while the hearings are still running.”
A large part of the argument of the Appellants concerned the various rulings of the Tribunal that they would disclose material inconsistent with the evidence of Mr Gilmartin if the inconsistencies were “gross, or glaring or significant.” It was said that the Tribunal failed to follow even the standards it had set for itself. There is no reason to repeat that the Tribunal’s earlier decisions were incorrect in law. It does not now dispute that some of the material it failed to disclose was inconsistent with the evidence even to the extent suggested by those tests. Unless, however, those rulings were evidence of bias as defined, they are irrelevant to the present appeal. Geoghegan J, in his judgment in O’Callaghan v Mahon No 1, referred to the policy of confidentiality enunciated by the Tribunal as the basis of its rulings. He said that it was “perfectly entitled to formulate a policy and indeed the efficient execution of its work requires that there be such a policy.” He also noted that it “did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may have devised.” By the same process of reasoning, I have arrived at the conclusion that the rulings of the Tribunal would not persuade our hypothetical independent observer that it had formed, using the language of the High Court of Australia in R. v Watson, any sort of settled view in favour of the credibility of Mr Gilmartin.
I should not omit, finally, to refer to the statement made in the letter from the Tribunal’s solicitor to the Appellants’ solicitors dated 26th September 2005. This is separate from the complaints regarding inconsistencies between the evidence of Mr Gilmartin and material not disclosed by the Tribunal. That statement was:
The Tribunal is led to the conclusion that you have elected to pursue a course of dealing with the Tribunal which is intended to create the false impression that you have a legitimate concern as to the capacity of the Tribunal to deal fairly and impartially with the issues involving your clients.
That statement should never have been made. Does it, however, establish objective bias? In the context in which the Tribunal’s very lengthy letter of rebuttal was written, I do not think it does. Counsel for the Appellants did not shrink, at the hearing, from accepting that their own clients’ letter of 13th September contained the most serious possible allegations against the Tribunal. The letter was not at all written in the careful terms, now adopted by counsel, of the “reasonable apprehension of the appearance of bias.” It contained a large number of allegations of actual bias: of being prepared to do anything to protect Mr Gilmartin in his involvement with this inquiry; of setting out to prove fraud against Mr O’Callaghan; that The Appellants were firmly of the view that this tribunal cannot fairly adjudicate on the allegations of impropriety against them. The Tribunal was therefore responding in detail to many serious allegations of actual bias. Such allegations, of course, went to the root of the personal honour and integrity of the Tribunal members as such and as judges.
The Tribunal should have had the dignity to refute the allegations in the Appellants’ letter, without personalising the matter. Nonetheless, I do not believe that a reasonable and fair-minded independent observer in possession of all the facts, particularly of the Appellants’ letter of 13th September, would have had an apprehension that the Tribunal had predetermined any matter. That hypothetical observer would have read the entire letter and would have seen how serious the allegations were. He would have appreciated that they amounted to an assault on the integrity of the Tribunal. He would also have read the entire of the letter in reply and would have seen, inter alia, the clear restatement of the Tribunal’s policy that “no decision as to the credibility of witnesses whose evidence was challenged would be made until such time as all their evidence in relation to all matters in respect of which they were giving evidence was heard.”
My conclusions on the issue of bias are as follows: the Appellants cannot, as they accept, establish objective bias based on a series of adverse decisions of the Tribunal; they do not claim that the Tribunal has made any express advance finding about the credibility of Mr Gilmartin; not being able to succeed on either of the preceding grounds, the Appellants ask the Court to examine in detail the decisions of the Tribunal not to release documents; such a procedure cannot succeed for the reasons already given; furthermore, it would implicate the Court in detailed evaluations of alleged conflicts between the evidence of Mr Gilmartin and earlier documents; the Court should not, as a matter of principle engage in that exercise, which is quintessentially the function of the Tribunal; it is the function of the Tribunal, not the Court to assess and pass judgment on the credibility of witnesses.
For these reasons, I would also dismiss the appeal insofar as it is based on alleged objective bias. I agree with Denham J that bias has not been established and I would agree with her also that the appeal should be dismissed. I would affirm the order of the High Court.
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