RULING

(7th December 2007)

It would be both impracticable, if not impossible, to provide an extensive Ruling,

in the abstract, on the question of what constitutes evidence at this stage of the

Tribunal’s proceedings. It seems preferable to indicate the Tribunal’s view of the

matter in broad outline and by way of guidance which may be of some use to

affected persons or entities when it becomes necessary to address the matter in

more concrete terms once the Tribunal has notified its provisional findings.

As has already been stated repeatedly the Tribunal is not bound by rules of

evidence as applied by Courts in the determination of liability either in criminal or

civil matters. This approach has been expressly approved by the High Court

and Supreme Court, even in the case of adjudicative and adversarial Tribunal

proceedings, in numerous cases since the decision in Kiley –v- Minister for

Social Welfare (1977) 1I.R.267 where Mr. Justice Henchy stated:

“Tribunals exercising quasi judicial functions are frequently allowed to act

informally – to receive unsworn evidence, to act on hearsay, to depart

from the rules of evidence, to ignore courtroom procedures, and the like –

but they may not act in such a way as to imperil a fair hearing or fair result.

I do not attempt an exposition of what they may not do for, to quote the

frequently cited dictum of Tucker L.J. in Russell –v- Duke of Norfolk ‘there

are, in my view, no words which are of universal application to every kind

of inquiry and every kind of domestic Tribunal. The requirements of

natural justice must depend on the circumstances of the case, the nature

of the inquiry, the rules under which the Tribunal is acting, the subject

matter that is being dealt with, and so forth’”1

1 See page 281 of the Report.

Accordingly rules of evidence will not be applied by the Tribunal with the same

strictness as in either Civil or Criminal proceedings. At the same time, as has

already been acknowledged in Part I of the Report of this Tribunal, findings

should not be made or conclusions drawn which may have a significant impact

on an individual or corporate or other entity where central elements of the

relevant material have not, for example by reason of being hearsay, been subject

to adequate scrutiny either by or on behalf of the Tribunal or by or on behalf of

any affected person or entity.