SUPREME COURT OF IRELAND
9 JUNE 2011
(with whom Finnegan J and O'Donnell J, concurred)
This is an appeal from the judgment of the High Court (Hanna, J.) delivered on the 28th day of June, 2005. The respondents to the appeal comprise, as to the first named, the Chairman, and as to the remaining persons, the other members of the Tribunal of Inquiry into Certain Planning Matters and Payments (“the Tribunal”) commonly known for some years (since it was originally established in November, 1997 under the Chairmanship of Flood, J.) as “the Mahon Tribunal”. The appellant is a former practising solicitor and former managing partner of a firm of solicitors in Dublin. At the time relevant to the events the subject of this appeal the appellant had an interest in or a connection with certain lands at Carrickmines in County Dublin, which, inter alia, were the subject of what was called the Carrickmines Module of part of the work of the Tribunal.
On the 13th December, 2004 by order of the High Court (McKechnie, J.), the appellant was granted leave to apply for judicial review of a decision of the respondents to embark on, or continue, certain public hearings. The reliefs in respect of which leave was granted included:
a declaration that the respondents decision to embark on the above public hearings without giving the appellant an opportunity to make submissions thereon, acted unlawfully and in breach of the requirements of natural and constitutional justice;
in the alternative, an order of mandamus directing the respondents to hear such submissions prior to holding any, or any further, public hearings;
a declaration that the respondents, in deciding to hold such public hearings, acted and/or was acting ultra vires and/or without or in excess of jurisdiction;
a declaration that the respondents, in deciding to hold such public hearings had acted, or was acting, irrationally and without or in excess of jurisdiction; and
the costs of the proceedings,
all of which reliefs are set out in the High Court Order made on that date.
The grounds upon which the order was sought were, briefly, the following: the respondent
in refusing to hear submissions on behalf of the applicant as to whether it should, or should not, exercise its discretion to hold, or not to hold, public hearings, acted in breach of the audi alteram partem rule, and of the requirements of fair procedures and natural and constitutional justice;
was acting ultra vires in deciding to hold such public hearings, because it was neither mandated nor empowered to inquire into, or establish, the beneficial ownership of the lands in question;
even if it had such power so to do, it was not necessary to conduct the same unless and until it had been concluded that corruption occurred in relation to those lands and that such corruption benefited the lands, which was not the case;
in deciding to hold such hearings, had acted irrationally because there was no rational basis on which it could be concluded that hearings into the phases in question would be other than of no, or very limited, probative value;
in deciding to hold such public hearings had failed to take into account relevant considerations and had thus acted without and/or in excess of jurisdiction, in particular in failing to consider
the likely duration and cost of such hearings;
whether such hearings were likely to provide evidence which would enable the respondent to make findings of fact or recommendations, and to draw conclusions; and
whether there were other factors which would, or would likely, render such hearings inappropriate, unnecessary, wasteful of resources, unduly costly, unduly prolonged or which would be of limited or no probative value.
The above reliefs all relate to a decision by the respondents made on the 27th November, 2004 to embark upon, or to continue, public hearings into Phases 2 to 8 (inclusive) of the Carrickmines II and Related Issues Module (“the Carrickmines II Module”), without hearing submissions on behalf of the appellant, and to a second decision made to similar effect, in early December, 2004.
The High Court proceedings were subsequently determined after a hearing which lasted five days. By a judgment delivered on the 28th June, 2005, the High Court dismissed the appellant’s claims in their entirety. Consequential upon that judgment, and upon a supplemental judgment delivered on the 15th February 2006, dealing with an issue of privacy and the retrospectivity or otherwise of provisions of the European Convention on Human Rights Act 2003, an order of the High Court was made on the 5th April, 2006, by which order all the reliefs sought by the appellant were refused and he was directed to pay the costs of the proceedings. Notice of Appeal, dated the 29th June, 2006, from the above two judgments and the order of the High Court, was filed on behalf of the appellant, on the grounds therein set out, seeking to have the same set aside.
The Scope of the Appeal
The matter now comes before this Court in unusual, but not unknown, circumstances. It is accepted by both parties that the subject matter of the appeal itself is now moot, by virtue of the passage of time, and the fact that events have overtaken the appeal. The Tribunal has already concluded its oral hearings of the relevant parts of the Carrickmines II Module. Because, however, the appellant also seeks to set aside the order for costs made against him, it is necessary to consider the main issues raised in the appeal, so as to determine if the findings of the learned High Court judge were correct, and whether the costs order was properly made, or ought be set aside. On the written as well as the oral submissions, there are three primary issues which arise on the appeal. They may be described in the following terms, as derived from the pleadings and the Notice of Appeal:
The natural justice issue
A declaration that the respondent, in deciding to embark upon public hearings in relation to Phases 2 to 8, inclusive, of the Carrickmines II and Related Issues Module without giving the applicant/appellant the opportunity to make submissions as to whether the respondent should hold such public hearings, acted unlawfully and in breach of the requirements of natural and constitutional justice.
The ultra vires issue
A declaration that the respondent, in deciding to hold or to continue public hearings into Phases 2 to 8, inclusive, of the Carrickmines II and Related Issues Module has acted and/or is acting ultra vires and/or without or in excess of jurisdiction.
The delay issue
This issue arises from the respondent’s Notice of Objection which raised a timing issue in the following terms:
.... the applicant’s case must fail on grounds of delay for failure to comply with the provisions of Order 84 of the Rules of the Superior Courts.
The General Context giving rise to the Dispute
Before considering the issues, it is necessary to set out the factual context in which they arose. The original Terms of Reference, when the Tribunal was first established pursuant to resolution of the Oireachtas and a Ministerial Order in late 1997, were relatively narrow, and confined to examining, inter alia, the beneficial ownership of various lands in North Dublin, referred to in a letter from a Mr. Michael Bailey to a Mr. James Gogarty, their planning history, relationships between the owners of the various lands and the Planning Authority, and/or members of the Oireachtas, and the possible existence of corruption. The Terms of Reference were amended in 1998 to include another named party, a Mr. Raymond Burke, and again subsequently in 2002. The second and third interim reports of the Tribunal are dated the 30th September, 2002. The fourth interim report, relevant to this appeal, was submitted to the Dail in Spring 2004.
As far back as 2002 or 2003, the Tribunal had identified what became known as the proposed Carrickmines II Module as being among the matters it proposed to investigate. That particular module was said by the Tribunal to have eight proposed phases, mentioned below, each consisting of separate land banks. The purpose of each proposed module was to identify the beneficial ownership of the lands in question, at least of the various land banks making up the different phases, and, in particular, so far as this appeal is concerned, the beneficial ownership of Jackson Way lands. The adoption of these Phases was not based on any allegation of corruption having been made in relation to any of them, or their owners, or indeed any other persons, unlike the position in relation to Carrickmines lands. Rather, it was because the Tribunal considered that the answer to the question as to the beneficial ownership of those land banks might reasonably be expected to throw some light on the true ownership of the Carrickmines lands. At the relevant time, the Tribunal had already investigated possible corruption in respect of what was called, at that point in time, “Carrickmines lands”, but had made no findings of corruption or otherwise in relation to them. One major issue it was considering was the true ownership of certain lands known as the “Jackson Way” lands.
The Jackson Way lands, whose beneficial ownership was of interest to the Tribunal, was, or is still, registered in the name of a company, of which the appellant allegedly is, or was, a 50% owner. The Tribunal did not know whether a Mr. Liam Lawlor (now deceased) was or was not one of, or even the only, beneficial owner of those lands, or whether those lands were owned only by the appellant and/or another man called Kennedy, as was contended. Details of these matters are more fully set out in the High Court judgment.
In the fourth interim report the Tribunal at Chapter 6, paragraphs 6.02 to 6.08, drew particular attention to the need for far greater leeway or discretion in determining what enquires the Tribunal could or should proceed with, what it could abandon, or not commence at all, and pointed out that its obligation to investigate “all such matters” as required by the then Terms of Reference, placed a very onerous and unnecessary burden on the Tribunal. A discretion to deal with these various matters was sought by the Tribunal in proposed terms. The Tribunal had been required to produce a definitive list of all the areas it was working on and to choose from that list (including a specific reference to Carrickmines and other areas) on the criteria set out at J6, which ones would go to public hearing.
A key event, therefore, in this general context was the decision by the Oireachtas, in late 2004, to amend the Terms of Reference of the Tribunal, subsequent to its receipt of the Tribunal’s Fourth Interim Report in Spring 2004. The Minister for the Environment and Local Government, in consequence of that decision, made an Order on the 3rd December, 2004 which added a new paragraph J or J(6) to the Tribunal’s existing Terms of Reference. That amendment gave the Tribunal, inter alia, a new or greater discretion, inter alia, to discontinue or abandon its inquiries, even if these came within its existing, very broad, Terms of Reference.
The Terms of Reference, as subsequently amended, and as extant when the application for judicial review was made, include the following:
The tribunal shall, subject to the exercise of its discretion pursuant to j(6) hereunder, proceed as it sees fit to conclude its inquiries into the matters specified below, and identified in the fourth interim report of this tribunal, and set out its findings on each of these matters in an interim report or reports or in a final report:
This last reference is a reference to the Tribunal’s intention, on the completion of (f) above, to resume hearings on a number of “interlinked modules” in the above remaining phases 2 to 8.
Paragraph J(6) of the amended Terms of Reference provides as follows:
The Tribunal may in its sole discretion - in respect of any matter within paragraphs J(1), J(2) and J(3) of these amended Terms of Reference - decide: .... (emphasis added)
In exercising its discretion pursuant to this paragraph the Tribunal may have regard to one or more of the factors referred to below:
The amendment to the Terms of Reference also directed the Tribunal to conclude its inquiries into named matters, including the Carrickmines II Module, subject to its discretion under J(6) above, by March, 2007.
The Background to the Decision of the 27th November, 2004
On the 20th January, 2004, following notification to relevant parties in November, 2003, public hearings of the Carrickmines II Module started. This commenced in the usual way with an opening statement by counsel on behalf of the Tribunal. Counsel for the appellant immediately sought clarification, on the following day, as to the scope and intent of this Module. In reply counsel for the Tribunal indicated, inter alia, that the inquiry was directed towards “examination of the system” used in other lands with regard to the parties involved, and of devices, entities, business modules or structures used in those transactions, with a view to enquiring if they established a relationship between the appellant, Mr. Lawlor and Mr. Kennedy, thereby assisting the Tribunal in its consideration of the true ownership of the Jackson Way lands. The focus of the inquiry was to be directed towards their possible relevance to the Carrickmines I Module, and the true ownership or control of those lands, by the persons who had been named in connection with them. At that point, counsel for the appellant expressly reserved the appellant’s position in relation to the intent of the Tribunal, and the scope of same, as then expressed by its counsel, and did not resile from the position.
The Tribunal then proceeded to hear evidence from some witnesses in the Carrickmines II Module, which continued up until the 13th February, 2004, at which point the matter was adjourned to the 23rd July, 2004, due to unrelated matters. Considerable correspondence then took place between the appellant’s solicitor and the solicitor for the Tribunal. The relevant content of that is set out in appropriate detail in the High Court judgment. The exchanges included a debate on whether or not, inter alia, the Tribunal had any power at all to investigate non-Carrickmines I lands, in respect of which the appellant’s solicitor sought an opportunity to make oral submissions to the Tribunal. On the 18th November, 2004 a letter from the Tribunal invited written submissions from the appellant’s solicitors with a view to considering “whether or not further oral submissions would be permitted”. This was responded to on behalf of the appellant on the 25th November, 2004.
At the hearing on the 27th November, 2004, before the above formal order was made by the Minister in December, 2004, but after the Resolution of the Oireachtas, counsel for the appellant sought to address the Tribunal on the exercise by it of its discretion under the proposed extended Terms of Reference. The essential content of the Resolution did not come as any surprise, since the problems created by the existing Terms of Reference, and, more particularly, the absence of any clear discretion concerning the commencement, pursuit, termination or conclusion of enquiries, had been the subject of the above Fourth Interim Report, in which the Tribunal had itself requested an amendment to its Terms of Reference, so as to grant a broader discretion to it.
The thrust of the submissions which counsel wished to make had been set out in the above letter of the 25th November, 2004. Those submissions advanced a number of arguments about the interpretation of the original Terms of Reference on the issue of vires, and also addressed the specific issue of the benefits of any further investigation of the proposed Carrickmines II module, having regard, inter alia, to the time constraints upon the Tribunal, the issues involved, the likely effect and outcome of matters referred to in the amended Terms of Reference, and the likely oppressive effect of this on the appellant, all coming within the range of factors or criteria which could be taken into account by the Tribunal in exercising its discretion under the amended Terms of Reference.
At the outset of the hearing, on the 27th November, 2004, the Chairman of the Tribunal stated that the Tribunal would not entertain any submissions sought to be made as to how the Tribunal should exercise its discretion. In the course of this appeal, the written submissions on behalf of the Tribunal state that “a decision was made not to entertain any submissions”. That decision was clearly a considered one. The decision, as delivered, was in the following terms:
Good morning. We have made a decision, the tribunal made a decision to allow you make such oral submissions based on your written submissions as you wish to make, but with this condition.
The tribunal is not prepared to hear any submission as to how the tribunal should exercise its discretionary powers provided for in the new Terms of Reference. How that discretion is exercised is solely a matter for the tribunal because the tribunal alone has access to the information, [and] documentation which allows it to exercise that discretion. It is not a matter on which the tribunal intends taking submissions or hearing submissions from any party. It is a discretion which only the tribunal can exercise in its own wisdom, and we are quite firm that that is the position and should be the decision.
The Chairman concluded this portion of the Tribunal’s ruling by stating:
So it is for that reason that only we can exercise that discretion and we must do it based on our own wisdom.
Counsel for the appellant objected, contending that a party was “at an absolute minimum entitled, as a matter of fair procedures of administrative law, to be heard, simply to be heard in relation to that matter”. He said that his client:
wished to put before the tribunal, so that it may be taken into account, and properly taken into account, in the overall exercise of its discretion, a number of relevant matters.
The chairman then amplified the Tribunal’s position by suggesting that there “had always been a discretion” on the part of the Tribunal, but that “there was never an entitlement, in our view, for any party to make submissions to the tribunal as to why their particular interests should not be [sic] undergo public investigation”. Counsel for the appellant replied that the Tribunal appeared to have “reduced the role of counsel, allegedly representing the role of an affected party, to nothing, which seemed to make representation a meaningless event”.
The Chairman then stated:
There are possibly tens, possibly hundreds of potential parties, not just involved in the immediate public inquiry, who, if the tribunal was of a mind to hear submissions as to why particular avenues of inquiry should be pursued or closed, there are possibly hundreds of individuals who would be equally entitled to come to the Tribunal to make submissions as to why their particular inquiry should not be pursued. So we would have a situation where we would spend weeks and weeks just listening to submissions as to why a particular individual should not have to face an inquiry.
A fresh attempt to make submissions was made on behalf of the appellant on the 8th December, 2004, but this also came to nought. It is against the foregoing background that the appellant, on the 13th December, 2004, obtained leave of the High Court to commence these judicial review proceedings.
The High Court Proceedings
The essential content of the High Court claims are set out above, as well as the grounds on which leave was granted. In his judgment, the learned High Court judge referred to the application in the following terms:
This application arises from the Tribunal’s investigations conducted in private, public hearings and future proposed public hearings of and concerning, certain lands at Carrickmines, County Dublin, and other lands. The Tribunal has engaged in the practice of dividing its inquiries into separate modules and, within those modules, separate sections or phases. The module with which we are concerned is referred to and known as the Carrickmines II and Related Issues Module.
A helpful note of what the learned judge considered the issues before the High Court to be is also set out in the judgment of Hanna, J., and is worth repeating:
The applicant contends that the respondents have acted ultra vires, in breach of the requirements of natural and constitutional justice, and are in breach of the applicant's constitutional right to privacy and the right to respect for his privacy under Article 8 of the European Convention on Human Rights in that:
The respondents dispute all of the foregoing.
In the High Court, it was contended on behalf of the appellant first, that the Tribunal had misdirected itself in law and/or had acted ultra vires in deciding that it did not have a discretion, under its amended Terms of Reference, to decide whether to continue or terminate its enquiries into the relevant phase of the Carrickmines II Module and/or in failing to consider whether to exercise that discretion. Secondly, the appellant argued that a correct reading of the amended Terms of Reference makes it clear that it was open to the Tribunal, in its discretion, to terminate any or all of the Carrickmines II Module by declining to hear Phases 2 to 8 thereof in public, or some or other of them. Thirdly, the Tribunal itself had, in its Fourth Interim Report, indicated that it considered the existing Terms of Reference did not afford it a discretion as to which particular “acts” it was required to investigate and report upon. The Tribunal had itself requested that the Terms of Reference be amended so as to confer on it an express or actual discretion, inter alia,
to decide which acts it could investigate, and
to permit it not to pursue a particular line of inquiry or investigation, if the Tribunal thought it appropriate not to do so.
Accordingly, the appellant argued that his contentions as to the existence of the discretion, as well as its scope, were fully justified. On his behalf, it was, finally, argued that the Tribunal was, in the context of the amended Terms of Reference, obliged to hear submissions in relation to the exercise of that discretion, if a party affected by the decision wished to make submissions. In particular, the appellant was entitled to bring to the attention of the Tribunal, inter alia, matters concerning him which should properly form part of the Tribunal’s consideration in determining the manner in which it should exercise its discretion, and the appellant had sought to do so, but had been wrongly refused a hearing.
As to the claimed right to be heard, the Tribunal submitted that, in declining to entertain submissions from the appellant’s counsel, the Tribunal did not infringe any natural or constitutional justice right, because, pursuant to the applicable legal principles, as established in case law, and as applied to a Tribunal of Inquiry, a person who will be called as a witness has no entitlement to make any submissions to the Tribunal concerning the exercise by it of its sole discretion in the investigatory stage. The Tribunal is not obliged to entertain submissions from any party or potential witness as to whether it will initiate an investigation, decide that certain matters warrant a public hearing of evidence, or discontinue or otherwise terminate an investigation, as such matters lie within its sole discretion at that stage.
On the issue of vires, it was argued that the current enquiries fall outside the Terms of Reference. The terms relating to an enquiry into the beneficial ownership of any land was confined to those in North Dublin, as included in the original Terms of Reference, and the extant Term of Reference do not mandate or require such an enquiry into any other lands. Further, even on the Tribunal’s own argument, such an enquiry could not be necessary unless and until the Tribunal has concluded that corruption had occurred in relation to them, which had not been determined, and it was an irrational decision. The Tribunal, on the other hand, argued that it was fully entitled to embark on the enquiries, and they fell within the proper scope of paragraph A.5 of the original Terms of Reference. In any event, the matter had been put beyond question by the amended Terms of Reference, and the appellant could not, therefore, succeed on this ground.
Finally, as to the claim by the Tribunal that the appellant had delayed in bringing proceedings, and was outside the time for doing so under the Rules of the Superior Courts., the appellant argued that time ran from the months of November or December, 2004, when the amended Terms of Reference became known, whereas the Tribunal contended for a time running from November/ December, 2003 when it notified the appellant of its intention to proceed to public hearings on the Carrickmines II Module.
The High Court Judgment
Having heard the application over a number of days, the learned High Court judge stated that, as to the general onus which rests on an applicant for judicial review of a decision of a tribunal of this nature, a party “has a great mountain to climb. It is by no means unassailable, but it seems that one would need to stare irrationality in the face before it could be surmounted”. This finding was made in purported reliance on the case of Bailey v Flood (Unreported, High Court, 6th March, 2000), in which Morris, P. cited Finlay, CJ., in The State (O’Keeffe) v An Bord Pleanala  1 I.R. 33.
On the issue of fair procedures and the right to be heard, having cited certain jurisprudence, he found as follows:
In Haughey v Moriarty, supra, in relation to a proposed discovery order in respect of a persons bank account, Hamilton C.J. said at p. 75 of his judgment:-
That, in my view, seems to indicate the limits on any person making submissions to a Tribunal while it is engaged in its private investigative phase as to how the Tribunal should conduct its inquiries in such phase or how and when it should exercise its decision to move to a public hearing. Fundamentally, it seems to me that this is what the applicant is seeking to do. The applicant is endeavouring to address the Tribunal on whether or not it should move from its private investigations into public hearings. This he does notwithstanding the fact that he has already engaged in phase 1 of the Carrickmines II Module. But even if we were dealing with this matter at a time before the commencement of Phase 1 of Carrickmines II, it seems to me the position in law would be the same. The applicant is seeking to address the Tribunal as to how it should exercise its discretion in the preliminary investigative stage.
On the question of vires, he found,
first, that the test to be applied was one of irrationality,
secondly, that the terms of Clause 5A of the Terms of Reference empowered the Tribunal to inquire into certain “acts” and that this was clear from Redmond v Flood  3 I.R. 79, which confirmed the Tribunal’s “wide latitude in the interpretation of its terms of reference”;
thirdly, that in light of the latter finding, the respondent was not acting ultra vires; and,
finally, the amended Terms of Reference expressly require the Tribunal to proceed “as it sees fit” to conclude its enquiries, inter alia, into the Carrickmines II Module.
However, he found that, even without such amendment, the decision by the Tribunal was within its powers, and Phases 2 to 8 were “legitimate subjects” of inquiry within its then existing Terms of Reference.
Finally, as to delay, the learned High Court judge found the relevant date was either November, 2003 or February, 2004, or possibly at the latest July, 2004 when the views of the Tribunal on the substantive issues were clear. The application for judicial review was therefore outside the time prescribed by the Rules.
In light of the foregoing, the Court now deals with the above three issues.
The Natural Justice Issue
By far the most important ground raised by the appellant, in both the High Court proceedings, and on this appeal, as accepted also by counsel for the Tribunal, is the allegation that there was a breach of natural and constitutional justice on the part of the Tribunal in relation to the exercise of the discretion undoubtedly vesting in it pursuant to its amended Terms of Reference. In essence, the appellant contended before the High Court, and now repeats in this Court, that it is a breach of natural and constitutional justice to refuse outright to hear any submissions of counsel (or otherwise), on behalf of an affected party, as to whether the Tribunal should exercise its discretion, or not, to proceed with Phases 2 to 8 of the Carrickmines II Module. Senior counsel for the appellant, Mr. Gardiner relies in that regard on several cases, including In Re. Haughey  I.R. 217, Haughey v Moriarty  3 I.R. 1, O’Callaghan v McMahon  IESC 9, Lawlor v Flood  3 I.R. 107 and others. It is submitted that on two occasions the Tribunal refused, wrongly, and in breach of the appellant’s constitutional right to fair procedures, to hear any submissions whatsoever as to why it should not proceed, as it intended, with public hearings in respect of Phases 2 to 8 of the Module in question. Further, the Tribunal had wrongly done so on the apparent basis, first, that the discretion was a matter solely for the Tribunal, because it alone, as opposed to the appellant, or any other party, had access to the information and documentation in question, and secondly, that if it permitted counsel on behalf of the appellant to make submissions, it would be necessary to allow others, perhaps even a very large number of people, to do so. Counsel for the appellant submits that neither is a good reason, in law, and that neither provides a justification for refusing to entertain any submissions whatsoever.
Counsel further contends that the Tribunal accepted, very belatedly, it is said, and only shortly prior to the High Court proceedings, and contrary to its stance up to that time, that the amended Terms of Reference did indeed confer on it the discretion which the appellant contended for. As a consequence, the Tribunal also had a discretion which could be exercised so as to terminate its inquiries, or not proceed further with them, even after the end of the private segment of its work. The appellant was refused an opportunity to make submissions directed precisely towards the exercise of that discretion. The appellant submits, that at the time of the refusal in November and December, 2004, the Tribunal apparently considered no useful purpose could or would be served by hearing any submission, because regardless of what submissions might be made, the Tribunal was, contrariwise, required to proceed to hear and conclude the entirety of all of Phases 2 to 8 of the Carrickmines II Module. That view of the nature of its discretion was subsequently accepted by the Tribunal, it is said, as being wrong. Indeed, the appellant contends that, had his counsel been permitted to make submissions, his position concerning the discretion vesting in the Tribunal being correct, would have been disclosed, and the Tribunal could have reconsidered its then contrary, and erroneous, stance.
The appellant argues that the decision to proceed with the public hearings in relation to the relevant phase of the Carrickmines II Module had, or was likely to have, as its consequence, inter alia, serious adverse implications for the appellant, including those as to time, cost and utility, upon which the appellant wished to make submissions. That being so, it is submitted in this appeal that the learned trial judge was incorrect in finding that there had not been a breach of fair procedures, and that no unfairness had resulted from the refusal of the Tribunal to hear submissions, the learned trial judge finding, in that regard, that the Tribunal was correct in constraining counsel’s address to it in the manner in which it did, on the following rationale:
The Tribunal has its own way of doing things and is entitled to order its own procedures subject, of course, to the legal and constitutional rights of persons before it in public phase. It entertains both oral and written submissions as it had done in the instant case. The Tribunal had indicated that area of debate to which it did not intend to go and it was within its rights so to do. Certainly, no discrete ground of unfairness was visited upon the applicant by the refusal on the part of the Tribunal to revisit legal argument which it, rightly in my view, considered to be over and done with.
It is submitted by counsel for the appellant that this part of the High Court judgment fails to set out any legal basis as to why the Tribunal was entitled to refuse to afford the appellant his legal right to fair procedures by permitting his counsel to make submissions in relation to the very matter which would have a serious adverse impact on him.
On behalf of the Tribunal on this ground, senior counsel, Mr. Michael Collins argues that the learned trial judge was correct in law, and that there was, in fact, and in law, no entitlement on the part of the appellant to be heard. The Tribunal did not infringe any natural or constitutional justice rights. The following had been stated in its written submissions to the High Court – relied on also in this appeal - on this aspect of the matter:
.... the Tribunal did not infringe any natural or constitutional justice right of the applicant because the principles of natural or constitutional justice as applied to a Tribunal of Inquiry set up under the Tribunals of Inquiry (Evidence) Acts, 1921 – 2004 do not require that a person who will be called as a witness (if the Tribunal should decide not to terminate its preliminary investigation and to proceed to a public hearing of evidence) has any entitlement to make submissions to the Tribunal concerning the exercise of its sole discretion in the investigatory stage as to whether the Tribunal will terminate that investigation or proceed to a public hearing of evidence. Unless orders are proposed to be made against a person during the investigatory stage (e.g. a discovery order), the Tribunal is not obliged to entertain submissions from any party as to whether the Tribunal will initiate an investigation, decide that certain matters warrant proceeding to a public hearing of evidence, or discontinue or otherwise terminate an investigation, as such matters lie within the sole discretion of the Tribunal at the investigatory stage, which it may exercise without being obliged to hear submissions from a potential witness.
Counsel for the Tribunal also contends that the appellant continues to misunderstand its stance on precisely what discretion it has, including the discretion once counsel for the Tribunal opened the hearing at the end of January, 2004, and argues it had not changed its position, either shortly before the hearing in the High Court, or at any stage, and has not since changed its stance, which corresponds, and has always corresponded, with the above submissions.
In relation to tribunals such as the one involved in these proceedings, it is critical to point out that they have, and must be permitted to have, a considerable margin of appreciation in relation to the manner in which they organise their procedures and affairs. That margin of appreciation must be, and always has been, recognised and respected by courts. This principle is well established in the case law, and has been repeated by this Court and by the High Court in several judgments, which are not necessary to cite at this stage.
The present appeal, however, does not, in reality, attack the Tribunal’s proper – even wide - margin of appreciation, nor the general right of this, or any other, tribunal to organise its own affairs and procedures as it wishes. Rather, the appeal and the proceedings are based entirely on the specific exercise of a particular discretion, in respect of which the Tribunal itself may have regard to particular criteria, according to the actual wording of the extant amended Terms of Reference. These are ones which the Oireachtas, when adopting the Resolution to amend the Terms of Reference as recommended by the Tribunal, and as incorporated into the Ministerial Order referred to above, obviously considered would, or might be, relevant to the exercise by the Tribunal of its discretion. It cannot be gainsaid that in this appeal the relevant criteria referred to in the amended Terms of Reference are all relevant factors which, in particular cases may, or should, be taken into account by the Tribunal. They include, as is clear from their terms, matters in respect of which a person, such as the appellant, would or could have particular information, even perhaps information not already known to the Tribunal. They are not criteria which, on their face, are included in the amended Terms of Reference for the exclusive benefit of the Tribunal, even if it is the Tribunal which exercises the eventual discretion.
Equally, there are undoubtedly occasions also when a body such as a Tribunal of Inquiry must be decisive. The Tribunal in this case has from time to time been assailed by unjustified assertions that certain action is required by the rules of natural justice. In hindsight, at least, however, it appears regrettable that a rather robust, perhaps even dogmatic, position was adopted by the Tribunal in the present matter, and that much subsequent delay, expense and litigation might have been avoided if the Tribunal had agreed to consider submissions (even in limited form). While fully recognising and appreciating the Tribunal’s desire to avoid a further round of submissions and argument on a matter, ultimately for the Tribunal in its discretion, to decide, nevertheless, by refusing to entertain any submissions whatsoever, in any form, on behalf of the appellant, the Tribunal set up a clear issue of law, which required to be determined.
It seems patently clear that neither of the reasons advanced by the Tribunal on the 27th November, 2004 at the oral hearing can, in law, justify the stance actually taken by the Tribunal, if, as is clear, the decision to be taken was one which affected, or could adversely affect, the appellant’s interests, and could therefore be said to attract an obligation to apply the principles of natural justice. As to the first basis invoked by the Tribunal, while undoubtedly it may have had in its possession information and documentation to which the appellant did not have access, and of which he might have no knowledge, it does not follow from that fact, that the appellant, or counsel on his behalf, should not be permitted to make submissions based on information and documentation within the knowledge of the appellant, even peculiar to him, in connection with the exercise of the discretion by the Tribunal, together with the reasons for it. As to the second basis, this too cannot, in law, constitute a good reason for refusing to permit a person who does wish to be heard, and who is otherwise entitled to be heard, from making submissions in connection with the exercise of the discretion. The mere fact that a large number of persons might wish to become involved cannot, of itself, alter what is required by the rules of natural justice: that is merely a reflection of the scope of the Tribunal and the number of parties affected by it. In fairness to the Tribunal, however, this second reason was not the principal basis upon which the Chairman rested his ruling.
Moreover, the fact that a decision is one which is going to be taken in the exercise of a discretion, even a very wide discretion, is also not a ground, in itself, for departing from the basic principle of audi alteram partem. Neither the breadth of the discretion, nor the fact that it is described as the “sole” discretion of the Tribunal, and thus may only be reviewed in very limited circumstances, could, in law, lead to the automatic conclusion that if that decision is one adversely affecting the interests of a party, it does not attract the rules of natural justice. Indeed, it might be said that where the discretion afforded is very broad, as here, and the limits on possible review may be correspondingly very narrow, this makes it all the more important that an affected party should have the right to make submissions before a decision is made. If anything, the scale of the Tribunal and the fact that there is no appeal from its findings emphasises the importance of scrupulous adherence to the rules of natural justice.
On the face of it, therefore, and as a matter of first principle, it seems clear that this issue involves a canon of administrative law of an almost rudimentary nature – that if the decision may, or will, affect the interests of another, sufficient to require adherence to the principles of natural justice, then a party affected - and certainly an affected party who expresses a desire to make submissions – must be heard, at least in some form [See Dellway Investments v National Asset Management Agency (Unreported, The Supreme Court, 12th April, 2011)] in which it was stated that: “person whose interests are capable of being affected directly by a decision of a public body exercising statutory powers is ordinarily entitled to have notice of the intention to consider the making of the decision and to have his representations considered by the decision maker”. It was not suggested at any time before this Court, or to the High Court, that the Tribunal was not making a “decision” which might adversely affect the appellant, even significantly so, nor is there any question of the decision being merely a fact finding exercise, which might not otherwise attract, overall, the Rules of Administrative Law.
In this appeal, counsel for the Tribunal, however, seeks to defend the decision on a basis not expressly invoked by it at all when making its ruling on the 27th November, 2004, and nor was it the declared basis for the ruling, although also raised as a defence in the High Court. On that occasion, when it made its ruling, it stated, inter alia,
The Tribunal is not prepared to hear any submissions as to how the tribunal should exercise its discretionary powers provided for in the new Terms of Reference.
The point now made might have been detectable, but with some very considerable effort, in the reference to “nothing having changed”, made by the Tribunal not in support of its decision, but in the course of exchanges with counsel during argument earlier in 2004 at the opening address of counsel for the Tribunal referred to above. It is contended now on behalf of the Tribunal, however, that what was involved here was “its decision to move from private sessions to public hearings”. This stated basis is cited in the High Court as one of the issues between the parties before it. It is the basis for the High Court judgment and remains the basis, according to the written submissions filed on behalf of the Tribunal before this Court, and all the foregoing in reliance on the allegation that the appellant cannot challenge the Tribunal’s decision to move from preliminary investigation stage to public enquiry stage. It is argued that, not only is there no authority for the proposition that a tribunal should entertain a submission as to how it should make such a decision, but further, there was relatively recent authority, from this Court, to the contrary: Redmond v Flood  3 I.R. 79. It is contended that if the appellant were to succeed, this Court would have to overrule that decision.
Although not either of the bases actually invoked for the decision made, to understand counsel for the respondent’s argument on this point – and why in this Court’s view it is, in any event, misconceived – it is necessary to look more closely at the decision invoked. Redmond v Flood, supra involved a challenge, brought in the early days of the life of this same Tribunal, to the manner in which the Tribunal was then proceeding. Mr. Redmond had sought leave to issue judicial review proceedings. Leave was granted, however, only in relation to a limited number of grounds, being those concerning fair procedures in relation to the public hearing, not relevant in this appeal. That aspect of the case is not relevant to this appeal. It was, on the other hand, refused by the High Court in relation to those concerning the interpretation by the Tribunal of its Terms of Reference. Since the appeal was against the refusal of leave on the latter issue, the hearing in this Court was ex parte pursuant to the Rules of the Superior Courts, and this Court dismissed Mr. Redmond’s application.
Even from the above account it is clear that the argument on which the Tribunal now relies in this case was by no means to the forefront of the decision of this Court in Redmond. However, as is pointed out by counsel for the Tribunal, correctly, among the grounds alleged in the Redmond case was that the Tribunal, under its Terms of Reference, if it conducted a private investigation, could then conduct a full public inquiry, once it determined that “sufficient evidence exists in relation to that matter to warrant proceeding to a full public inquiry in relation thereto.” It had been contended by Mr. Redmond that he was entitled to “an opportunity to make representations in relation to the evidence available to the tribunal before the tribunal reaches a determination as to the sufficiency of the evidence.” (emphasis added)
Hamilton, C.J., observed that fair procedures and the principles of constitutional justice did not require that the proceedings of the tribunal be conducted in private at all. Indeed, it was the essence of such inquiries, he noted, that they be held in public, for the purposes of allaying the public disquiet that led to their very establishment. Clearly, there can be no challenge to the well foundedness of these observations as to tribunals, such as the present Tribunal (the subject of the observations). This point was dealt with in the following paragraph of the judgment:
An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, is a public inquiry. The Court in the passage quoted accepted that it was proper for a tribunal to hold preliminary investigations in private. This would enable the Tribunal, inter alia, to check on the substance of the allegations and in this way would protect the citizens against having groundless allegations made against them in public. But the Court was not suggesting that the tribunal should proceed to a public inquiry only if there was a prima facie case or a strong case against a particular citizen. It was suggesting that the allegation should be substantial in the sense that it warranted a public inquiry. The Tribunal is not obliged to hold a private inquiry before proceeding with its public inquiry. The allegations made against the applicant in this case could be false. At this stage we simply do not know. But they are grounded on a sworn affidavit. In these circumstances it appears to this Court that the Tribunal was entitled to decide that they were of sufficient substance to warrant investigation at a public inquiry. Indeed it would have been surprising if the Tribunal had decided otherwise.
This being so this Court cannot see any basis on which it could grant leave to apply for judicial review on this particular ground.
The Court also observed that the fundamental nature of a tribunal of inquiry was to hold public hearings. If a public hearing was held without any preceding private inquiry that would be perfectly lawful. This Court accepted that there was simply no other reasonable conclusion open to the Tribunal in that case, however, but that the allegations made on sworn affidavits against Mr. Redmond, were of sufficient substance to warrant a public inquiry. The extract makes it clear that this Court did not deal with the claim that there was an entitlement to make representations and submissions on the decision itself, and it is not evident that that point was even advanced, or relied on, in argument. This is particularly clear, when it is recalled that what was being sought was an opportunity to make representation “as to the sufficiency of the evidence” prior to the Tribunal reaching a decision. Redmond is, therefore, far from an authority for the broad proposition for which the Tribunal now contends, but which, in any event, was not the basis originally invoked for the impugned decision.
The argument advanced on behalf of the Tribunal in this appeal, wrongly in this Court’s view, is that its starting point is to characterise the decision to be made in the exercise of its discretion under the resolutions of the Houses of the Oireachtas of the 17th November, 2004, as essentially the same as that which was at issue in Redmond. That does not appear to be so. What was involved in Redmond was a well recognised decision, such as those made by prosecutorial or investigative agencies that there was “sufficient evidence” to warrant commencing proceedings, or in that case, at least, hearings in public – a decision which has never been the subject of judicial review. The decision challenged in Redmond v Flood, that is, whether to move from private to public hearings on the basis of its assessment of the evidence, was one which belongs to a limited class of decisions under administrative law, which cannot normally be challenged by way of judicial review. It cannot be said, as a general rule of administrative law, that before a public authority or body commences proceedings against an individual, it must always or necessarily give that individual an opportunity to make submissions as to why proceedings should not be initiated. The individual’s rights are, in general, adequately or even fully protected by any hearing that is subsequently afforded to him. [See: Redmond v Flood, supra, and Wiseman v Borneman  A.C. 297].
On the other hand, the decision to be made by the Tribunal in the present case was significantly different, it being both broader and deeper, both as to the decision itself and the criteria by which it was to be made. It was not simply whether to proceed from private to public hearings (as the Court in Redmond observed, a low threshold for the Tribunal in the case of a public enquiry) and did not involve any consideration of the sufficiency of evidence (itself essentially a matter of judgment for the investigators), which the applicant in Redmond sought to do. Rather, it was whether to commence or to proceed any further with any particular investigation at all.
Furthermore, the very basis upon which this Tribunal was to be entitled to make any such decision was also quite different to that which arose in Redmond. There is no question here of sufficiency of evidence. Instead, there are a series of criteria set out in the Amended Terms of Reference, which are open-ended and contestable. These are factors in respect of which interested parties might be able to make helpful submissions, not by way of analysis of allegations or the sufficiency of evidence, but in relation to the criteria specifically referred to in the Amended Terms of Reference, such as age, state of health of persons likely to be important, or essential witnesses, and their likely age or state of health at such time in the future, when the matter might proceed to public hearing, and the likely length, and even the cost, the benefit, or the utility of such hearings. As mentioned above, they are not criteria which, on their face, are included in the amended Terms of Reference for the exclusive benefit of the Tribunal, even if it is the Tribunal which exercises the eventual discretion. There is, therefore, a material distinction between both the issues and the findings in Redmond v Flood, and the decision in issue in this appeal. They cannot be characterised as essentially the same decision, or even as analogous decisions.
These distinctions are critical. A further distinction between the decision at issue in Redmond and that at issue in this appeal, is that the only consequence for Mr. Redmond, if the tribunal determined that there was sufficient evidence to warrant public hearings, was a public hearing at which his rights would be fully protected, and in which he could demonstrate not only that there was insufficient evidence, but that the evidence actually established did not justify any finding against him. In that sense, a decision on the prima facie case which he was seeking to challenge was not at all determinative. It was simply part of a process which necessarily involved a full public hearing at which his rights are fully protected by the procedures required by natural justice. As well as being the law, this is also common sense. In the present appeal, however, the decision made by the Tribunal, in the exercise of its discretion, is a once and for all decision, and is final. It will not, and cannot, be revisited or remedied in any way by public hearings of the Tribunal. In such circumstances, it seems plain that an affected party ought to have the opportunity of addressing the Tribunal, at least in some form, on the decision which it is about to make.
The suggestion on the part of the Tribunal that its stance has always been consistent is correct, but nevertheless erroneous. On the question of the discretion to be exercised, it is said that this only exists, at least for present purposes, where there has been no decision to move from private investigative stage to public enquiries by way of hearing, and this could not, in any event, arise on the facts of this appeal. A reading of the amended Terms of Reference does not appear to support such a narrow interpretation, when all the terms are read together. Moreover, counsel specifically reserved his position to argue fully against both the issue of vires and fair procedures, and at the earliest possible date, and which matters were not resolved by subsequent correspondence.
The Tribunal instead made a blanket ruling not to consider entertaining submissions of any nature whatsoever in respect of its decision, even to the extent of stating, in respect of the letter sent on the 25th November, 2004, in advance of its ruling on the 27th, that once it noted the introduction to the submissions in that letter, and realised they concerned the discretion existing under the amended Terms of Reference, they ceased reading them. For the reasons set forth above, this approach was wrong in law. It follows ineluctably that the High Court was, in turn, wrong to reject this part of the appellant’s challenge to the Tribunal’s decision, and in its judgment the High Court, in reality, gave no legal basis upon which the Tribunal’s decision could be considered to have been valid, apart from stating that the Tribunal, “has its own way of doing things” and has powers to “order its own procedures”, reasons which do not constitute a reasoned basis for its finding.
As an addendum to the foregoing, however, the issue of the right to be heard clearly involved a matter on which it was entirely appropriate for the Tribunal to say it would only consider, for example, written submissions, indeed even written submissions of a limited length. The Tribunal already had submissions in written form and, on its own evidence, had considered their introduction, if only for the purposes of deciding that it would not entertain them. The position adopted was, however, more stark, because it is a common practice of tribunals to engage in sometimes protracted correspondence with parties in which submissions are made and contentions are advanced and responded to by the Tribunal. In the event, however, that was not the approach of the Tribunal in this case, which based its decision not on this ground, but on two separate grounds, both of which were also, in law, unsustainable.
The Ultra Vires Issue
This issue can be dealt with briefly. The ultra vires issue really falls into two separate parts. In the first place it is argued on behalf of the appellant that the Tribunal asserted a competence or jurisdiction to make any inquiry into the mere ownership of lands in respect of which no corruption was alleged. This point is argued on the basis that such competence does not come within the original Terms of Reference. The appellant, secondly, contends that in his judgment, the learned High Court judge wrongly dealt with this issue as a reasonableness or rationality issue, rather than as an ultra vires issue. On the issue of vires, the Tribunal argues that the subject matter of the Carrickmines II Module fell within the proper scope of the inquiries which the Tribunal is required and/or empowered to carry out pursuant to paragraph A(5) of the original Terms of Reference, by reason of the more general mandate given to the Tribunal under that paragraph. In any event, the argument of the appellant is now irrelevant, it is said, because the Terms of Reference, as amended in November / December, 2004, expressly mandate the Tribunal to proceed “as it sees fit” to conclude its inquiries, including, in particular, the Carrickmines II Module.
The finding of the learned High Court judge on vires supports the appellant’s argument that he did deal with the matter as a reasonableness or rationality issue. Such an approach is not supported by the case law, as the issue of vires is to be considered in the context of the actual powers vesting in the Tribunal. It is not a question of considering whether, for example, the Terms of Reference in the legislation can be read in a manner which allows these to be reasonably interpreted as coming within the powers vested in a decision maker. In the case of the Tribunal, established within the ambit of the Tribunals of Inquiry Act 1924 as amended, the scope or ambit of its powers are to be determined within the strict terms established by the Houses of the Oireachtas, and as found in the Orders of the Minister made thereon.
While, however, the learned High Court judge was wrong in law in deciding that the Tribunal had the latitude he allowed in its interpretation of the Terms of Reference, and this might, in general, permit the appellant to succeed, it is clear that on a consideration of the second aspect of the issue of vires, that is, by reference to the amended Terms of Reference, the determination of the learned High Court judge that the Tribunal was correct, was a good finding in law. This is because, although his reasons may not have been correct for the actual finding made, it was a correct finding, having regard to the clear terms and specific references made in the amended Terms of Reference to the Carrickmines II module, and specifically Phases 2 to 8 thereof. As is clear from the above background narrative, the Tribunal had already filed the Fourth Interim Report, and had sought additional powers in that report, including those which permitted the Tribunal to make, inter alia, the very enquiries it had been making, or proposed to make.
In the circumstances, the appellant cannot succeed in his appeal on this ground of vires.
The Delay Issue
Finally, on the issue of delay, it was argued by the Tribunal that its decision to commence public hearings in relation to the subject matter of Carrickmines II Module was taken in November, 2003, and shortly thereafter in early 2004 objected to by the appellant on many of the grounds upon which it is now sought to challenge that decision in these proceedings. The appellant did not seek leave to commence judicial review proceedings, however, until the 9th December, 2004 and was, on that argument, accordingly outside the time limits for making such an application, as laid down in Order 84, Rule 21(1) of the Rules of the Superior Courts. No application was made to extend the relevant period, and counsel for the Tribunal argues that no grounds, in fact, exist for any such extension, had any such application been made. Nor had the appellant acted promptly as required by the Rules and the case law in that regard. The learned High Court judge, in finding this to be so, was therefore correct in his findings.
The issue of delay can be disposed or readily. It is true that the appellant was notified in November, 2003 of the impending public hearings and attended, but on counsel’s opening argument for the Tribunal reserved his position on the scope of the enquiry and the intent of the Tribunal in early 2004, immediately after counsel’s remarks. Equally, the stance of the Tribunal on the exchanges of letters was clear by July, 2004. However, both the issue of vires and that of fair procedures depend materially on the content of the amended Terms of Reference. While it is true the Tribunal, in its own interim report, sought changes, they were not, and could not, in fact, be adopted or put into effect until passed by resolution of the Houses of the Oireachtas in late November, 2004.
The application for judicial review was made just after the Minister making his Order in December, 2004, and within weeks of the Oireachtas resolutions, incorporating the specific amended Terms. The application was, therefore, well within the time prescribed by the Rules, and also promptly. In the circumstances, it is not possible to agree that the learned High Court judge was correct in holding that the latest relevant date was July, 2004.
In light of the foregoing findings, the Court concludes that the learned High Court judge erred in law on two of the three material issues. The appeal is, therefore, allowed and the Court will set aside the High Court judgment and the Order made thereon.
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