THE SUPREME COURT

Appeal No. 119/2006

(High Court Record No.2004/4910P)

Denham J. Harriman J. Geoghegan J. Fennelly J. Finnegan J.

BETWEEN:

JOSEPH MURPHY, FRANK REYNOLDS AND JOSEPH MURPHY STRUCTURAL ENGINEERS LIMITED

PLAINTIFFS/APPELLANTS

- AND -

MR JUSTICE FEARGUS FLOOD (THE FORMER SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), HIS HONOUR JUDGE

ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD KEYS (THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING

MATTERS AND PAYMENTS), IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS/RESPONDENTS

JUDGMENT of Mr. Justice Fennelly delivered the 21st day of April 2010.

Introduction 1. Anyone living in Ireland over the past twenty years, when Tribunals have loomed so large

in the life of a nation, cannot be unaware of the cost of tribunals. The Oireachtás

establishes a Tribunal of Inquiry to investigate “a definite matter of urgent public

importance.” (Section 1(1) of the Tribunals of Inquiry Act, 1921). It is natural to assume

that the cost of inquiring for public purposes should be borne by the public, the State.

Thus, the taxpayer would bear the principal burden.

2. But, investigation of matters of public interest inevitably impacts on individuals. The

current edition of Wade and Forsyth on Administrative Law (10th Ed. Oxford 2009)

contains the following statement:

“The inquiry is inquisitorial in character, and often takes place in a blaze of

publicity. Very damaging allegations may be made against persons who may have

little opportunity of defending themselves and against whom no legal charge is

preferred.”

The authors omitted a further statement which had appeared in the 9th Edition which the

appellants cite in their written submissions:

“…an inquisitorial public inquiry is not always easily controllable, and its evils would

be grave if its use were not infrequent.”

But individuals have to pay for their generally involuntary involvement. This appeal is

concerned with the claim of two individuals and a company, whose affairs have been

scrutinised by a Tribunal, to recover their costs.

3. Hamilton C.J. in his judgment in Haughey v Moriarty [1999] 3 I.R. 1, at page 57,

acknowledged the severity of the encroachment by tribunals on individual rights:

“There is no doubt but that the terms of reference of the Tribunal of Inquiry and the

exceptional inquisitorial powers conferred upon such tribunals under the Act of

1921, as amended, necessarily expose the plaintiffs and other citizens to the risk of

having aspects of their private life uncovered which would otherwise remain

private, and to the risk of having baseless allegations made against them. This may

cause distress and injury to their reputations.”

Nonetheless, these undoubted private rights and interests must yield to the public

interest. As the Chief Justice explained at page 59:

“The exigencies of the common good require that matters considered by both

Houses of the Oireachtas to be of urgent public importance be inquired into,

particularly when such inquiries are necessary to preserve the purity and integrity

of our public life without which a successful democracy is impossible.”

4. In his High Court judgment in the same case, Geoghegan J made a number of

observations about the costs borne by individuals, to which I will refer later. He stated, in

particular, at page 14, that any monetary loss incurred in meeting the requirements of

the Tribunal was “simply an unfortunate consequence of the legitimate right to such hold

an inquiry.”

5. Thus, an individual may become entangled innocently or otherwise, but involuntarily, in

the workings of a Tribunal. He may have to pay dearly to protect his good name. Where,

after all this, his name is tarnished by the Tribunal’s findings, must he pay all or part of

his costs or even of the costs of the Tribunal? Society pays to uncover the truth; anybody

who is asked must help the Tribunal; if a finding is adverse to the individual who should

pay?

The problem 6. The present appeal demands clear answers to these questions. The appellants were

centrally involved in an important part of the Tribunal’s inquiries into corruption in the

planning process. They spent many months of their time and a great deal of money

participating in its work. Ultimately, where there were conflicts of evidence, they were not

believed. The Tribunal found them guilty of making corrupt payments. It also found that,

by the mere fact of giving the evidence that was disbelieved, they were guilty of hindering

and obstructing the work of the tribunal.

7. The questions which arise, on the appellants’ arguments, are whether the Tribunal, when

making the principal, substantive findings in its reports to the Oireachtás:

• had power to make findings of hindering and obstructing;

• was entitled to conclude that the fact of giving evidence which is not believed

amounts, in itself, to “hindering and obstructing” the work of the Tribunal;

• was bound to give prior notice to the appellants that it was considering making a

finding of hindering and obstructing.

8. A number of separate questions arise in relation to the Tribunal’s refusal to award any

costs to the appellants. One of the principal issues is whether the Tribunal was entitled to

found its decision to refuse an order for costs on its substantive findings of corruption;

another is whether the Tribunal made valid findings of obstruction and hindering.

9. The first to fourth named respondents (in effect the Tribunal) raise preliminary objections

on the grounds of delay, which must be considered in detail.

10. These are the principal points to be considered. There is also a challenge to the

constitutionality of some of the legislation providing for costs orders. Well-established

principles require the Court address that issue only if it is unavoidable.

Relevant statutory provisions 11. In order to consider these points it is necessary to explain the context in which they arise.

Two statutory provisions arise for particular consideration.

12. The first is section 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act 1979,

which provides:-

“If a person…

(c) wilfully gives evidence to a Tribunal which is material to the inquiry to which the

tribunal relates and which he knows to be false or does not believe to be true, or

(d) by act or omission obstructs or hinders the Tribunal in the performance of its

functions…….

the person shall be guilty of an offence.”

13. One of the appellants’ complaints is that the Tribunal’s findings of obstruction and

hindering of its work amount to a decision that they committed a criminal offence.

14. The power to award costs was conferred by section 6(1) of the Tribunals of Inquiry

(Evidence) (Amendment) Act 1979. In its original version, that provision read:

“Where a tribunal, or, if the tribunal consists of more than one member, the

chairman of the tribunal, is of opinion that, having regard to the findings of the

tribunal and all other relevant matters, there are sufficient reasons rendering it

equitable to do so, the tribunal or the chairman, as the case may be, may by order

direct that the whole or part of the costs of any person appearing before the

tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall

be paid to the person by any other person named in the order.”

15. Following amendment by section 3 of the Tribunals of Inquiry (Evidence) (Amendment)

Act 1997 section 6(1) now reads:

“Where a tribunal or, if the tribunal consists of more than one member, the

chairperson of the tribunal, is of the opinion that, having regard to the findings of

the tribunal and all other relevant matters (including the terms of the resolution

passed by each House of the Oireachtás relating to the establishment of the

tribunal or failing to cooperate with or provide assistance to, or knowingly giving

false or misleading information to, the tribunal), there are sufficient reasons

rendering it equitable to do so, the tribunal, or the chairperson, as the case may

be, may, either under the tribunal’s or the chairperson’s own motion, as the case

may be, or on application by any person appearing before the tribunal, order that

the whole or part of the costs

(a) of any person appearing before the tribunal by counsel or solicitor, as

taxed by a Taxing Master of the High Court, shall be paid to the person by

any other person named in the Order;

(b) incurred by the tribunal, as taxed as aforesaid, shall be paid to the

Minister for Finance by any other person named in the order.”

16. The underlined words, which were added in 1997, provided the principal focus of debate

on the appeal.

17. In addition, it may be noted that the Terms of Reference of the Tribunal recorded the

desire of the Houses of the Oireachtás that:

“All costs incurred by reason of the failure of individuals to cooperate fully and

expeditiously with the Inquiry should, so far as is consistent with the interests of

justice, the borne by those individuals.”

The Tribunal and its reports 18. The first named appellant, Mr Joseph Murphy junior is engaged in the business of

property development. At all material times, he was the chairman of the third-named

appellant. The second named appellant was, at the material times, managing director of

the third named appellant, and a contracting company in the Murphy group.

19. The Planning Tribunal was established by order of the Minister for the Environment and

Local Government dated 4 November 1997, pursuant to resolutions of both Houses of the

Oireachtás passed respectively on 7th and 8th October 1997 to inquire into specified

matters of urgent public importance set out in its Terms of Reference. The specified

matters all related, so far as the appellants are concerned, one way or the other, to

allegations made by Mr James Gogarty, who has since died.

20. The Terms of Reference were amended on 15th July 1998 so as to oblige the Tribunal to

"inquire urgently into and report ……………” on whether any corrupt payments were made

to Mr Ray Burke connected with any public office or position held by him. Mr Burke had

held, inter alia, several ministerial posts in the government. According to the Tribunal,

this amendment had the effect of requiring it to investigate the entire public life of Mr

Burke from 1967 to 1997.

21. The appellants participated in approximately 163 days of public hearings at the Tribunal

between 12th January 1999 and 14th July 2000. They provided extensive discovery and

made statements to the Tribunal.

22. In its Second Interim Report, the Tribunal reported, inter alia, on the payment of money

to Mr Burke at a meeting attended by Mr James Gogarty in the period immediately prior

to 15th June 1989.

23. The Third Interim Report dealt with two separate sums of money alleged by Mr James

Gogarty to have been paid by way of corrupt payment to Mr George Redmond, who had

for many years held the position of Assistant City and County Manager of Dublin.

24. The Tribunal made findings in the two reports to the effect that the appellants had made

corrupt payments, respectively, to Mr Burke (the Second Interim Report) and to Mr

George Redmond (the Third Interim Report). It has to be emphasised that the appellants

have never, and do not in these proceedings, mount any challenge to the validity or

correctness of these substantive findings. The following discussion of those findings may,

nonetheless, cast light on the justification for the contemporaneous findings, in each

report, that the appellants, or some of them, had hindered and obstructed the work of the

Tribunal.

Second Interim Report 25. The second interim report dealt with three distinct "modules." The appellants and this

appeal are concerned only with what it called the “Gogarty Module.” The Tribunal

identified the core allegation as one made by Mr James Gogarty to the effect that he had

witnessed the handing over of two envelopes, said to contain IR£40,000 each, to Mr

Burke at a meeting which took place at Mr Burke’s home at Swords on or in the days

immediately before 15th June 1989. The payments were claimed to have been made

corruptly in order to secure the support of Mr Burke in achieving rezoning and planning

changes with regard to certain lands owned by the Murphy companies.

26. The same report contains findings relating to "Co-operation with the Tribunal," which are

closely linked, on the one hand, to the substantive findings and, on the other hand, to the

ruling regarding costs. For that reason, it is necessary to give a brief account of the

nature of the substantive findings.

27. A central, perhaps even the decisive, controversy surrounded the question of who had

attended the meeting at Mr Burke's house when the alleged corrupt payment was made.

Mr Gogarty insisted that Mr Joseph Murphy junior was one of those present. Mr Burke and

Mr Michael Bailey, who were admittedly present, equally strongly maintained that he was

not, as did Mr Murphy himself. In short, of the three people admittedly present at the

meeting, only Mr Gogarty claimed that Mr Joseph Murphy, junior was there.

28. The Tribunal heard evidence from a number of witnesses and devoted a major part of its

report to examining and resolving a large body of evidence related to this dispute. Mr

Murphy was normally based in and lived and worked principally in London. The extent and

number of his visits to Ireland in June 1989 were examined in minute detail. The Tribunal

concluded that Mr Murphy “could have” attended meetings in Dublin, even when he was

shown to have been in London at some time on the same day. Its findings in respect of

three disputed meetings over this period were as follows.

29. In relation to the first alleged meeting:

“However, it is clear that notwithstanding the alibi evidence offered in relation to Mr

Murphy Junior’s meeting with friends in Waterford, a meeting could have taken

place with Mr Bailey on either 31st May or 1st June, and still have allowed Mr

Murphy Junior to attend his meeting in Waterford later on 1st June.”

30. In relation to the second alleged meeting:

“The Tribunal is satisfied that Mr Murphy Junior could have attended a meeting in

Dublin on 8th June 1989 notwithstanding the evidence that he received telephone

calls in London, both that morning and that night. A meeting could have taken

place at JMSE’s premises on the afternoon of 8th June provided Mr Murphy Junior

had flown from London to Dublin and returned on the same day.”

31. In respect of the crucial third meeting in Mr Burke’s house the Tribunal’s finding is in the

following terms:

“The Tribunal is not convinced by the alibi evidence offered to the Tribunal that Mr

Murphy Junior could not have attended a meeting in Dublin in the week

commencing 12th June 1989 and recognises that for such a meeting to have taken

place on 12th June it would involve a rejection of the alibi evidence offered as to Mr

Murphy Junior’s movements that day by Mr Greene. The Tribunal believes that it is

possible that Mr Murphy Junior could have attended an afternoon meeting at the

JMSE premises in Dublin on 8th June but still have attended his workplace in

London earlier that day. If Mr Murphy Junior returned to Ireland on either 13th or

14th to attend a meeting it would involve the rejection of the evidence of Mr

Mycroft, a JMSE engineer, in so far as he believed that Mr Murphy Junior was

working all day in London on each of those dates.”

32. In its final resolution of the dispute the Tribunal, rather than explicitly preferring the

evidence of Mr Gogarty to that of Mr Murphy, expressed itself in the negative as follows:

“ in weighing the evidence of the alibi witnesses in the totality of the evidence

surrounding the making of the payment to Mr Burke, the Tribunal , concludes that

the alibi evidence does not prove that Mr Joseph Murphy Jnr. could not have

attended at least three meetings in Dublin between 31st May and 15th June 1989.”

33. The Tribunal, in its Third Interim Report, found that Mr Joseph Murphy junior had made

two separate corrupt payments to Mr George Redmond. The first payment, in a sum

found to be not less than IR£12,246 was for devising a strategy resulting in the service

charges and levies payable respect of certain lands of the Murphy group being fixed at a

beneficially low level. The second was in a sum £15,000 found to have been paid by Mr

Joseph Murphy junior to Mr Redmond at a meeting at Clontarf Castle Hotel attended by

Mr Gogarty, Mr Michael Bailey, Mr Frank Reynolds and Mr Joseph Murphy junior. With the

exception of Mr Gogarty himself, all those persons denied that any such meeting had

taken place at all. The evidence, which the Tribunal accepted, with regard to the second

payment was that Mr Joseph Murphy junior informed Mr Gogarty sometime after the

payment had been made that he had "sorted out" Mr George Redmond with regard to the

loans in question. Mr Joseph Murphy junior denied that he had made such a statement or

made such a payment. He was supported in the latter respect by the evidence of Mr

Redmond.

34. It will become clear at a later point that these conclusions of the Tribunal on the

substantive issue had a decisive bearing on its findings in the chapter on cooperation with

the Tribunal.

Co-operation with the Tribunal; hindering and obstruction 35. The Tribunal included a separate chapter in its Second Interim Report under the title:

"Co-operation with the Tribunal.” It referred to the general obligation of all parties to

provide truthful information, adding that failure to do so had the “capacity to hinder and

obstruct the Tribunal….” It proceeded as follows:

“Any person, duly summoned to do so, who gives evidence to the Tribunal which is

material to its enquiry, which that person wilfully [sic] knows to be false or does not

believe to be true or who by act or omission obstructs or hinders a Tribunal in the

performance of its functions, commits a criminal offence.”

36. The foregoing paragraph, apart from the misplacing of the word, “wilfully,” follows the

wording of section 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act 1979,

quoted above.

37. The Tribunal further remarked that the failure of a witness to give a truthful account "can

amount to a failure to cooperate with the Tribunal.”

38. The Tribunal then proceeded, in Chapter 17, in the case of some 20 witnesses, to make a

finding as to whether the specified witness had either “obstructed or hindered” or "failed

to co-operate” with the Tribunal. It made the following finding regarding Mr Joseph

Murphy Jnr.:

“The Tribunal is satisfied that Mr Joseph Murphy Jnr. obstructed and hindered the

Tribunal by:

a) Failing to give a truthful account of the circumstances in which he came

to attend a meeting at the home of Mr Burke in June 1989 at which he

handed to Mr Burke a sum of not less than £30,000,

b) Failing to give a truthful account of his dealings with Mr Michael Bailey

with regard to the participation proposal, in which it was envisaged that Mr.

Michael Bailey would receive 50% of the value of the Murphy’s’ North Dublin

lands in return for procuring planning permission and building bye law

approval in respect thereof.

c) Giving a false account of the involvement of Mr. James Gogarty in the

sale of the Murphy lands and the role played by him in connection with the

payment of JMSE monies to Mr. Burke.

d) Giving a false account of his dealings with Mr. Michael Bailey subsequent

to the publication of the Sunday Business Post articles.

e) Falsely constructing an alibi which was untrue.”

39. In the case of Mr Frank Reynolds, it found:

“The Tribunal is satisfied that Mr Frank Reynolds obstructed and hindered the

Tribunal by:

a) Failing to give a truthful account of his involvement in the assembly of

funds which were paid to Mr Burke by JMSE.

b) Falsely ascribing to Mr Gogarty a role in the payment of monies to Mr

Burke which he knew to be untrue.

c) Failing to give a truthful account of his dealings with Mr Michael Bailey

d) Failing to give a truthful account of the steps taken by him subsequent

to the publication of the Gogarty allegations in the Sunday Business Post

editions of 30th March and 6th April 1996.

e) Colluding with Mr Joseph Murphy Snr. and Mr Joseph Murphy Jnr. to

present a false account to the Tribunal of the role played by Mr James

Gogarty in the payment of JMSE monies to Mr Ray Burke.”

40. Chapter 8 of the Third Interim Report was also headed “Co-operation with the Tribunal.”

It contained very similar findings of obstruction and hindering against Mr Joseph Murphy

junior and Mr Frank Reynolds, in each case, based on the substantive findings which the

Tribunal had made preferring the evidence of Mr Gogarty to that of the two appellants.

41. Neither report made any findings of failure to co-operate with the Tribunal in any respect

other than the giving of false evidence. For example, none of the appellants were found to

have failed to co-operate with the Tribunal during its preliminary investigative stages by

failure to make proper discovery, to provide documents or to attend hearings. In fact, it

will later be seen that the Chairman accepted that there had been co-operation

specifically in respect of the discovery of documents over a long period of time.

42. The appellants have complained, without being contradicted, that the Tribunal never at

any time gave notice to any of them that it was considering making findings that they had

hindered or obstructed the work of the Tribunal.

Procedure for dealing with the costs 43. By a letter dated 16th April 2003, the then Sole Member of the Tribunal gave notice to

the appellants of his intention to hold a public sitting on 6th May 2003:

“on the principles which should be applied by him in exercising his discretion under

this section in relation to the costs claimed by persons who fall within the category

of persons against whom findings of corruption were made or who have been found

to have obstructed or hindered the Tribunal or to have failed to cooperate with or to

provide assistance to the Tribunal as requested.”

44. The procedure was to involve a decision, in the first instance, on the principles, which the

Tribunal would apply. Thereafter, the Tribunal would hear applications for costs "from

individuals who fall within the aforementioned category who are seeking an order for their

own costs to be paid by the State.”

45. Only the Second Interim Report had then been published. The hearing was to relate,

therefore, only to individuals who might wish to recover costs, which they had themselves

incurred. No question has yet arisen about recovery of costs incurred by the Tribunal itself

or others against the appellants. The hearing was to relate only to persons who had been

found by the Tribunal:

• to have been guilty of corruption, or

• to have obstructed or hindered the Tribunal, or

• to have faded to cooperate with or to provide assistance to the Tribunal.

46. The hearing proposed for 6th May did not take place. Mr Justice Flood, who had up to that

time served as Sole Member, retired on 27th June 2003. The Tribunal was reconstituted

and the two relevant costs hearings took place before His Honour Judge Mahon, as

Chairman.

47. By letter dated 14th May 2004, the Tribunal, as newly constituted, gave notice that it

was the intention of the Chairman to hear submissions regarding costs on the 14th and

15th of June 2004. The hearing would now relate to conduct which was reported on in

both the Second and Third Interim Reports. The letter mentioned findings of corruption

and of failure to cooperate, but did not make reference to obstruction or hindering. In the

meantime, on 21st April 2004 the appellants had commenced the present proceedings.

Their Plenary Summons disputed the power of the Tribunal to make findings of

obstruction or hindering.

48. The chairman heard oral submissions on the 14th and 15th of June 2004. He was

empowered by section 2 of the Tribunals of Inquiry (Evidence) Act, 2004 to determine

issues of costs arising from the reports of Mr Justice Flood. Nothing turns on that power.

The appellants made extensive submissions in support of their applications for costs

pursuant to section 6(1).

49. On 30th June 2004 the Chairman of the Tribunal made a ruling on the principles he would

apply to applications for payment of their costs by persons in respect of whom findings of

corruption had been made. He noted that the Second and Third Interim Reports "included

findings of corruption and/or findings of non-co-operation with the Tribunal on the part of

certain named parties.”

50. He concluded inter alia that the Tribunal was required to have regard to the findings of

the Tribunal when exercising its discretion on costs. He based this on the provisions of

section 6(1) of the Tribunals of Inquiry (Evidence) Act, 1979, as amended in 1997. He

ruled:

“ I am firmly of the view that the word "findings" in the context of the present

inquiry means the findings of corruption, and that I am entitled to have

consideration [sic] to such findings when exercising my discretion as to whether or

not to award costs to any party to whom representation was granted. In so holding

I wish to emphasise that a finding of corruption does not of itself mean that I must,

in the exercise of my discretion, refuse the costs of a person who has been found to

have been corrupt. It is a factor to which I am entitled to have regard in

determining, whether in all the circumstances, it is equitable to make an award of

costs, whether in whole or in part.”

51. The chairman mentioned four matters which he said he was required, in accordance with

the section, to have regard and listed a large number of other matters including "non-co-

operation or failure to assist." At no point, however did he make any reference to the

findings that the appellants had hindered and obstructed the Tribunal.

52. The Chairman of the Tribunal made his final substantive ruling on the applications for

costs of the appellants on 9th November 2004. While no estimate of the amount of costs

had been submitted, he thought they would undoubtedly be "very substantial".

53. "On the issue of cooperation with the Tribunal,” he noted and summarised the findings of

obstructing and hindering. He also noted that the two personal appellants had been found

"to have knowingly engaged in or assisted corruption.” He remarked that it was "not

unreasonable…... to emphasise the substantial compliance with the Tribunal discovery

requirements… over a prolonged period of time.” He described the issue which he had to

consider as being whether “the incidences of co-operation on the Applicants’ part were

such as would enable me to, for good reason, exclude or separate them from the very

serious adverse findings relating to co-operation that were found by the Tribunal in both

the Second and Third Interim Reports.” Cooperation by a person could not be viewed as

positive "if the overall thrust of his involvement with the Tribunal was to have been

knowingly untruthful, destructive and misleading."

54. The ultimate decision requires to be quoted in full:

“Taken as a whole, the adverse findings of obstructing and hindering the Tribunal

made against the Applicants was so serious, so extensive and so far reaching, as to

clearly lead any reasonable person considering them to the conclusion that the

individuals concerned, …………were intent from the outset in ensuring that the

Tribunal would not find the truth.

To put it more simply, the conduct of the Applicants in their dealings with the

Tribunal was unlawful and disreputable, and amounts to a fundamental disregard

for the very purpose of the Tribunal, and their legal duty to cooperate with it.

In spite of the serious findings of corruption on the part of some of the Applicants, I

would have considered awarding them a portion of their costs had they chosen to

fully and honestly cooperate with the Tribunal. I am firmly of the few that there

should be a strong incentive for a party who fully cooperates with the Tribunal by

giving a truthful account of their knowledge of the events under enquiry can

reasonably expect to recover at least a significant portion of his or her costs

notwithstanding adverse findings on substantive issues such as corruption.

In all the circumstances therefore, I do not believe it would be appropriate to award

any costs to the Applicants and I therefore refuse the application.”

55. The tribunal acknowledged that the appellant's legal representatives had participated fully

in public hearings of the tribunal, as well as the extensive discovery that had been made

by the appellants over a prolonged period of time. The reasons for the decision to refuse

to award any costs to the appellants were: a) the adverse findings of hindering and

obstruction; b) the substantive findings of corruption. The Chairman did not suggest that

there were any other grounds upon which his decision could have been based.

The proceedings 56. There have been two interim reports from the Tribunal, two decisions relating to the

appellants’ applications for costs and two sets of legal proceedings. I will provide below a

brief chronology to make it easier to understand the objections on grounds of delay raised

by the respondents. First, I will endeavour to give an account of the legal proceedings.

57. It is right to note it at the outset that the appellants issued no proceedings within the

judicial-review time limits seeking to challenge the Second Interim Report. This is a

principal plank of the delay objection.

58. In their Plenary Summons of 20th April 2004 the appellants disputed the findings made

by the Tribunal in both the Second and Third Interim Reports on the subject of

obstruction and hindering, raising a number of legal grounds, to which it will be necessary

to return. They also sought a declaration that section 6 (1) of the Act of 1979, as

amended, is invalid having regard to the provisions of the Constitution.

59. The proceedings, therefore, were issued barely within three months after the publication

of the Third Interim Report, but some 19 months later than the publication of the Second

Interim Report. On the other hand, both the Plenary Summons and the Statement of

Claim, delivered on 4th May 2004, pre-dated any of the decisions on costs made by the

Chairman of the Tribunal and even the letter of the Chairman dated 14th May 2004. In

their original form, these proceedings sought declarations that the findings of obstruction

and hindering made in the two reports had been made ultra vires that they were null and

void and that they could not be taken into account for the purposes of decisions as to

costs.

60. I turn now to the judicial review proceedings. Although they did not take the normal

course and have, in effect, been absorbed into the plenary proceedings, they are highly

material on the delay issue.

61. The appellants formulated a statement required to grant an application for judicial review

dated 2nd February 2005. Mr Joseph Murphy junior swore a grounding affidavit on 27th

January 2005. On 23rd February 2005, the appellants, without apparently applying ex

parte for leave, issued a Notice of Motion returnable for 7th March 2005. The Appellants

sought, in those proceedings, firstly, various declarations as to the constitutionality of the

legislation, principally section 6(1) of the Act of 1979, but secondly, an order of certiorari

of the decision of the Tribunal of 9th November 2004, refusing them their costs.

62. The application for leave came before Kelly J by way of Notice of Motion in the High Court.

He made an order:

1. That there be no order on the Judicial Review application and that there be

liberty to apply

2. That the costs of the application be costs in the cause of the plenary

proceedings

3. that the parties do amend their pleadings in the plenary proceedings

4. providing for the notice of trial and the listing of the action.

63. The effect of this order appears to have been to merge the application for judicial review

into the plenary proceedings.

64. The appellants duly amended the Statement of Claim on 6th April 2005. The pleadings, as

so amended, contested the validity of the findings of obstruction and hindering in the two

interim reports, the ruling of 30th June 2004 regarding the principles governing an award

of costs and the decision refusing costs made on 9 November 2004.

High Court judgment 65. Following a hearing lasting six days, Smyth J delivered judgement on 14 February 2006.

66. The respondents had advanced two preliminary objections. The first was that it was an

abuse of process on the part of the appellants to challenge the findings of the Tribunal by

way of plenary proceedings. They should have proceeded by way of judicial review.

Smyth J rejected this objection: there was no single exclusive procedure; the English

decision in O'Reilly v Mackman [1983] A.C. 237 had not been followed in this jurisdiction.

There is no appeal on this point, though it reappears in the written submissions of the

respondents.

67. On the other hand, the learned judge considered that there had been delay. The

considerations as to time, applicable in the case of judicial review, should be applied so as

not to enable a plaintiff to circumvent the provisions of Order 84 of the Rules of the

Superior Courts. (see O’Donnell v Dun Laoghaire Corporation. [1991] I.L.R.M. 301).

68. The learned judge held the proceedings to be out of time insofar as they involved a

challenge to the Second Interim Report, but not in respect of the Third. The reports were

distinct and separate. He did not think that it was reasonable for the appellants to await

the outcome of the Third Report before challenging the Second. He also held that the

appellants were within time to challenge the decision on costs of 9th November 2004.

69. He rejected the appellants’ attack on the findings of obstruction and hindering: the

Tribunal was entitled to make a finding of obstruction and hindering at one and the same

time as its primary findings; the distinction between failure to cooperate, on the one

hand, and obstruction and hindering was a question of degree; the Tribunal was under no

obligation to give notice of the possibility of a finding of hindering and obstructing. He

thought that “findings of hindering and obstructing may fairly be regarded as incidental

and consequential upon those things which the Oireachtás authorised.”

70. He also held that the Tribunal was entitled to base its decision on costs on the substantive

findings of corruption. Referring to the dictum of McCarthy J in Goodman v Hamilton

[1992] 2 I.R. 542 at page 605, he expressed the view that “the amendment [to section

6(1)] effected by the Act Of 1997 was directed towards the difficulties imposed by

perhaps a perceived narrow interpretation of the act of 1979 in the Goodman decision.”

The appeal 71. It was agreed between counsel at the hearing that the Court had the following issues to

decide on this appeal:

1. Was the Tribunal entitled to take into account its substantive findings of

corruption when exercising its jurisdiction in respect of costs?

2. Was the Tribunal entitled to make findings of obstruction and hindrance either:

a. As a matter of vires;

b. In the manner in which it did?

3. To what extent are the appellants precluded from advancing issues by reason of

delay?

4. Was the learned High Court Judge correct to preclude an argument on the

constitutionality of section 6 of the 1979 Act as amended by reference to the rule in

Todd v Murphy?

72. The appellants have made no attempt to challenge the substantive findings of corruption

made against them in the Second and Third Interim Reports. For the purposes of this

appeal, those findings must be taken as they stand. The fundamental objective of the

litigation is to set aside the decision of the Chairman of the Tribunal refusing to award

them any of the costs incurred by them in participating at the Tribunal. The appellants

advance two legal bases: firstly, that the substantive findings of corruption should not be

taken into account; secondly, that the Tribunal, for a number of reasons, should not have

taken account of the findings of obstruction and hindering.

73. It appears to me that, if either of those grounds is made out, the decision of 9th

November 2004 cannot stand. First, however, it is necessary to consider the objection

based on delay.

Delay 74. The following chronology will help an understanding of the relevant time periods:

26th September 2002 Second Interim Report Published

21st January 2004 Third Interim Report published.

20th April 2004 Plenary Summons issued

30th June 2004 Judge Mahon rules on costs principles

28th July 2004 Amended statement of claim

9th November 2004 Judge Mahon final ruling on costs

2nd February 2005 Judicial review commenced

75. The appellants wish to challenge:

• Second Interim Report

• Third Interim Report

• Costs rulings (9th November 2004)

76. The learned trial judge held that the appellants were in time in respect of their challenge

to the Third Interim Report and the costs ruling of 9th November 2004. However, the

respondents continue to rely on delay with regard to the challenge to the Third Interim

Report by the plenary summons issued on 20 April 2004. Firstly, they continue to

maintain that the proceedings should have been brought by way of judicial review.

Secondly, they were issued a matter of a day to within the three-month period: thus,

they were not issued promptly.

77. I do not think that either of these arguments is viable. The learned trial judge was clearly

correct. Unlike the cases of planning and immigration decisions, there is no statutory

provision making judicial review the exclusive means of challenging Tribunal decisions of

the sort at issue here. The decision in O'Reilly v Mackman has never been applied in Irish

law. This is not to say that the judicial review time limit can be circumvented by resort to

plenary action. O’Donnell v Dun Laoghaire Corporation represents long-established

authority to that effect. Nor do I accept that the appellants claim can be defeated on the

ground that they did not move "promptly". In the absence of some special feature, such

as prejudice to a third party, the normal rule should be that judicial-review proceedings

commenced within the period allowed by O.84, r, 21 (1) of the Rules of the Superior

Courts are in time. As I stated in my judgement in O'Brien v Moriarty [2006] 2 I.R. 221 at

page 237, “matters have not reached the stage where an application made within time

can be defeated in the absence of some special factor.” Moreover, if the appellants had

moved by way of judicial review to quash the Third Interim Report, the appropriate relief

would have been certiorari, for which the specified time is six not three months.

78. It follows that the appellants were within time to challenge the Third Interim Report.

79. Equally, and for similar reasons, there is no doubt that the challenge to the costs decision

of the Tribunal of 9th November 2004 was commenced within time. The appellants sought

leave to apply for judicial review by way of certiorari. The order of Kelly J preserved the

rights of all parties. The effect of this order was to consolidate the application for judicial

review of the decision of 9th November 2004 with the already existing plenary

proceedings.

80. There remains, therefore, the question of whether the appellants should be permitted, by

means of the plenary proceedings commenced on the 20th of April 2004, to attack the

second Interim report. They were clearly out of time to do so. The appellants must

convince the court that there is “good reason” to extend the time. The learned trial judge

was not convinced by the reasons proffered by the appellants.

81. Firstly, I should address the issue of prejudice raised in submissions by both sides. The

respondents legitimately criticise the appellants’ reliance on absence of prejudice to the

opposing party. I agree that the absence of prejudice to the opposing party can never, on

its own, justify an extension of time. In my judgment in Dekra Eireann Teoranta –v-

Minister for the Environment and Local Government [2003] 2 I.R. 270 at page 304, I said

that an applicant “cannot without more … invoke the absence of any prejudice to the

opposing party as the sole basis for the suggested good reason”. The respondents are

entitled to rely on any prejudice which they would suffer as a result of an extension of

time. They rely on two points. Firstly, they say that, if the appellants had made their

challenge to the Second Interim Report in time, the Tribunal would have been obliged to

alter “some of its procedures which led to the Third Report.” But that Report was already

in existence in September 2002. The respondents are scarcely suggesting that it would

have been altered before publication. This suggestion is, at best, speculative. In

substance, what it suggests is impossible. The procedures had already been followed. No

suggestion is made as to how they could have been remedied. The second heading of

alleged prejudice is also unmeritorious. It is that “amending legislation was introduced on

the 5th May 2004 which may have been in a different form or to a different effect had

there been a Court decision on the Appellants’ complaints (and particularly if the

Appellants’ complaints had been upheld).” Speculative is a mild word to apply to this

submission. Assuming that the word “may” ought to read” might,” it seems to imply that

the Tribunal was potentially in a position to influence the legislature so as to cure

retrospectively a defect in its own procedures. In my view, this Court could not give

countenance to such a proposition.

82. I have come to the conclusion that there is good and sufficient reason to extend time in

the present case.

83. There is an unusual combination of circumstances linking the two reports with the

decision on costs. In particular, there is a very close link between the two interim reports

both inter se and when viewed in combination with the decision on costs. Each of the

reports finds one or more of the appellants to have been guilty of obstructing and

hindering the work of the Tribunal.

84. The validity of these findings is contested on legal grounds, which are essentially

identical. In summary, they are that they involved findings of the commission of a

criminal offence, that they were made without any notice and that the grounds for the

findings were identical with those of the substantive findings. The two reports were

prepared by the Tribunal at the same time. Publication of the Third Interim Report was

postponed for a reason unconnected with the appellants. It would be wrong, unjust and

anomalous if the Court were to be permitted to reach a conclusion that the findings in the

Third Interim Report were invalid but allow the Second to stand. That would create an

undesirable legal anomaly. The findings of one report would have been declared invalid by

the court. Similar findings in the other report would be objectively invalid for the same

reason, but without any judicial ruling.

85. An even more difficult problem arises when one considers the links between the reports

and the rulings on costs. As and from 14th May 2004, the Tribunal treated the recovery of

costs in relation to the two reports as a single issue. There was one hearing in June 2004

and one decision on costs including the hearings on 30th June 2004 and on 9th

November. The final ruling of 9th November 2004 took into consideration “the adverse

findings of obstructing and hindering,” taking them “as a whole.” It would be impossible

to segregate the findings of obstruction and hindering made in the two reports, since the

Tribunal itself treated them as one whole. Thus, if the appellants were to succeed in their

challenge to the findings of the Third Report, but could not attack the Second, the

decision of the Chairman would be based in part on findings declared to be invalid and in

part on identical rulings, upon which the court could not rule.

86. This is a unique set of circumstances. Even assuming the appellants to have been at fault

in failing to challenge the Second Interim Report in time, their clear right to challenge the

Third Report and the costs ruling virtually compels the Court to extend the time and I

would do so.

87. It is then necessary to consider, in an appropriate sequence, the agreed issues, as set out

above. It will not be necessary to address the question of constitutionality of the

legislation if the appellants succeed on either of the first two issues. I propose to consider

Issue number 2 in the first instance.

Hindering and obstruction 88. The agreed issue is:

Was the Tribunal entitled to make findings of obstruction and hindrance either:

a. As a matter of vires;

b. In the manner in which it did?

89. The appellants contest the findings of obstruction and hindering on a number of grounds,

which I identify as follows:

• The Tribunal formulated the findings as findings that the appellants had committed

criminal offences;

• The Tribunal gave no advance warning that, at the same time as its substantive

findings of corruption, it was considering making findings of obstruction and

hindering against the appellants;

• The findings were indistinguishable from and seemed to flow automatically, with no

independent consideration, from the substantive findings of corruption:

90. These arguments are very closely related and cannot be considered in isolation from each

other. Ultimately, their importance for these proceedings is that they played a crucial part

in the decision of 9th November 2004, whereby the Tribunal declined to order that any of

the appellants recover any of their costs.

91. Since what is at stake is the appellants’ right to have their costs applications considered,

it seems best to commence by recalling the provisions of section 6(1) of the Act of 1979

as amended.

92. I am not at this point considering the Tribunal’s reliance on substantive findings. The

relevant words, as interpolated in parentheses by the Act of 1997, are: “the terms of the

Resolution passed by each House of the Oireachtás relating to the establishment of the

Tribunal or failing to cooperate with or provide assistance to, or knowingly giving false or

misleading information to, the Tribunal.”

93. Section 6(1), even after amendment, contains no reference to obstruction or hindering.

Thus, the Tribunal had no power to investigate allegations of obstruction and hindering as

a separate matter. The learned trial judge considered the distinction between obstruction

and hindering and failure to co-operate to be a mere matter of degree. Normally, I would

agree with him. It would depend on the words used. In this case, it is clear that the

Tribunal, in Chapter 17 of its Second Interim Report, advisedly chose to use the precise

wording of 3(2) of the Tribunals of Inquiry (Evidence)(Amendment) Act, which makes it a

criminal offence where a person “by act or omission obstructs or hinders the Tribunal in

the performance of its functions………” The Tribunal expressly stated that such a person

"commits a criminal offence.” Furthermore, it drew a distinction throughout Chapter 17 of

the Second Interim Report and Chapter 8 of the Third Interim Report between obstruction

and hindering and failure to co-operate.

94. It is, of course, perfectly clear that the Houses of the Oireachtás may pass a resolution

asking a tribunal of inquiry to investigate and report on whether criminal offences have

been committed. Finlay C.J. in his judgment in Goodman v Hamilton held that:

“… an inquiry…… into the question as to whether criminal acts have been

committed, even to the extent of inquiring whether criminal acts have been

committed by a named person or persons, and the reporting of the truth or falsity

of such an allegation to the Legislature by the sole member of the Tribunal cannot

under any circumstances be construed or deemed as a trial on a criminal charge or

an offence within the meaning to be attached to those phrases in Article 38 of the

Constitution."

95. This case is, however, different. The Terms of Reference do not refer to hindering and

obstructing and a finding of such behaviour cannot be said to be within their scope.

96. Paragraph 17-04 refers to the obligation which is "upon every witness called to the

Tribunal to give a truthful account of the matters upon which they are questioned…” The

entire of that introductory paragraph relates to witnesses and evidence. That chapter

does not refer to any other form of failure to cooperate with the Tribunal. As has been

stated above, the ensuing list of witnesses heard by the Tribunal distinguishes between

those found to have “obstructed and entered” it and those who have “failed to cooperate”.

This analysis strongly suggests that the Tribunal equated obstruction and hindering with

the giving of evidence, which it disbelieved.

97. This conclusion receives some support from an examination of the Tribunal’s treatment of

the evidence. I tend to agree with the statement in the written submissions of the

appellants that it treated the evidence of Mr Joseph Murphy junior as an attempt to set up

an alibi, which would disprove the possibility that he did in fact attend the meeting at Mr

Burke’s house. It may be going too far to suggest, as the appellants do, that this

amounted to a reversal of the onus of proof. Nonetheless, it does appear from a close

reading of the report that the conclusion that the alibi did not exclude the possibility of Mr

Murphy's attendance led, as the appellants suggest, "seamlessly and without further

analysis or finding to the conclusion that he had in fact attended the meeting".

98. This is not, of course, to question in any way the conclusion of fact reached by the

Tribunal, which was entirely within its province and which, moreover, has not been

contested by the appellants. What does appear, however, is that the evidence was finely

balanced, that the conclusion turned significantly on the fact that the alibi or alibis did not

exclude the possibility of Mr Murphy having attended one or other of the meetings. The

report does not state that the evidence of Mr Gogarty is credible and that that of Mr

Murphy is not. In short, other than the conclusions in Chapter 17, the report contains no

statement to the effect that Mr Murphy gave false evidence.

99. Thus, I do not think that the findings of the Tribunal on obstruction and hindering were

validly reached. The Tribunal did not directly address the question whether the appellants

had failed to cooperate, which is one of the matters mentioned in section 6(1). Instead, it

addressed the different question of whether they had “hindered and obstructed” the

Tribunal. I do not say that they might not have used one or other of both of those words

in an appropriate context. The actual context leaves little room for doubt that it was

making a distinction between a section that created a statutory offence and the section,

which gave it jurisdiction in relation to costs. Furthermore, the Tribunal appears to have

treated its own conclusion that a person’s evidence was to be rejected on a substantive

issue as leading automatically and without any further analysis to the conclusion on

obstruction and hindering.

100. Finally, I turn to the question of notice. It is alleged by the appellants and not contested

that the Tribunal did not at any stage alert the appellants to the possibility that it was

contemplating making findings in relation to obstruction and hindering. The case for the

respondents is simple. It says that no notice was necessary. The learned trial judge

agreed.

101. The appellants complain that they were denied a fair hearing, because the Tribunal gave

them no warning that it was considering making a finding of obstruction and hindrance.

They say that the Tribunal was required to apply a heightened standard of fair procedures

to any proposed findings of such gravity. The findings affect them in their reputation,

good name and their liability to incur substantial costs; they should have been given an

opportunity to comment on the Tribunal’s primary findings for the specific purpose of

resisting a consequent finding of hindrance or obstruction: at a minimum the Tribunal

should have put its primary findings in relation to the resolution of the evidential conflict

before the parties before making findings of obstruction or hindrance arising out of those

self same findings.

102. The basic position of the respondents, upheld by the learned trial judge, is that the

appellants, in fact, had sufficient notice, even if they had no specific notice that findings

of hindering and obstructing were under consideration. The Tribunal has power to award

costs. Those appearing before it, being legally represented, must be aware of the

possibility of a finding of non-co-operation.

103. In resolving this issue, it seems right to take, as a starting point, the fact that the

Tribunal enjoys an express statutory power to award costs. The Tribunal itself treated this

as a distinct function when it commenced the procedure leading up to the costs hearings,

firstly, on 16 April 2003 and, secondly, when the newly appointed Chairman gave notice

on the 14th May 2004. It is certainly true that the primary obligation of the Tribunal to

report, in accordance with its Terms of Reference, to the Houses of the Oireachtás and its

power to award costs pursuant to section 6(1) of the Act of 1979, as amended, are

distinct and separate functions.

104. In applying the rules of natural justice to these procedures, it must be borne in mind, as

is acknowledged by the applicants, that the requirements of natural justice vary according

to the character of the proceedings and the gravity of findings. The fact that the Tribunal

is entitled to have regard, inter alia, to its view as to whether a person has failed to

cooperate with it does not necessarily mean that there has to be a separate hearing on

that issue, so long as persons potentially affected have reasonable notice of the possibility

of such findings. It might well, nonetheless, be good practice for a Tribunal to give some

advance notice of the relationship between cooperation with the Tribunal and any decision

regarding costs, which it might later make.

105. In any event, that is not what happened in the present case. The Tribunal made

considered findings that the two personal appellants had hindered and obstructed its

work. It is not contested that the appellants had no notice of the possibility that such a

finding might be made. It requires no expansion of the rules of natural justice to state

that anyone exposed to the risk of adverse findings of that character, amounting to an

accusation of criminal conduct, should receive reasonable advance notice. On that

separate ground, I do not believe that the findings of hindering and obstructing the work

of the Tribunal made in the Second and Third Interim Reports can be allowed to stand.

Effect of invalidity of findings of hindering and obstructing on costs ruling 106. The decision of the Chairman of the Tribunal of 9th November 2004 was dually motivated.

It was based in part on “the serious findings of corruption”. The Chairman explained that

he “would have considered awarding [the appellants] a portion of the costs had they

chosen to fully and honestly cooperate with the Tribunal,” which necessarily implies that

he would have deprived them of part of their costs by reason of the corruption findings, in

any event. Moreover, he had already ruled, as a matter of principle, on 30th June 2004

that he was entitled to have regard to those findings.

107. The Chairman could not have been clearer in stating, in addition, that “the adverse

findings of obstructing and hindering the Tribunal made against the Applicants were so

serious, so extensive and so far reaching, as to clearly lead any reasonable person

considering them to the conclusion that the individuals concerned, ………… were intent

from the outset in ensuring that the Tribunal would not find the truth.”

108. The decision was, therefore, founded upon two reasons. The parties have not referred the

court to any authorities concerning decisions made for mixed reasons. In Kennedy v The

Law Society [2002] 2 I.R. 458, this court held that a power exercised for two purposes at

an equal level of importance, one of which was unlawful, had been invalidly exercised.

109. There cannot be any doubt but that the adverse findings of hindering and obstructing

constituted a major reason for the decision of the Tribunal. I have come to the conclusion

that the findings of the Tribunal on obstruction and hindering were not validly reached.

They could not, therefore, have lawfully been taken into account when deciding on costs.

Such a decision falls within the less well known part of the judgment of Greene M.R. in

Associated Provincial Picturehouses Limited v Wednesbury Corporation [1948] I K.B. 223

that a decision may be quashed if an applicant can show that the decision-maker has

taken into account a legally irrelevant consideration. As Finlay C.J. expressed it in his

judgment in P. & F. Sharpe Ltd. v Dublin City and County Manager [1989] I.R. 701 t 717,

“the decision-making authority must have regard to all relevant and legitimate factors

which are before it and must disregard any irrelevant or illegitimate factor which might be

advanced.”

110. I am satisfied that the decision of 9th November 2004 must be quashed as having been

made, at least in part, on the basis of a legally irrelevant consideration.

111. At this point, in this judgment, the appellants have established their entitlement to the

central relief which they seek. The decision refusing them costs should be set aside. The

consequence is, however, that the matter will have to be reconsidered by the Tribunal.

For this reason, it is not possible to avoid addressing the first of the agreed issues.

Taking account of substantive findings of corruption when exercising its jurisdiction in respect of costs 112. The Chairman of the Tribunal, following detailed submissions on the question, reached a

clearly expressed conclusion that he was bound, in the exercise of his discretion regarding

the award of costs, to have regard to the substantive findings made by his predecessor,

Mr Justice Flood, that the appellants were guilty of making corrupt payments. He

emphasised that he was not bound to refuse costs but that the corruption constituted “a

factor to which [he was] entitled to have regard in determining, whether in all the

circumstances, it is equitable to make an award of costs, whether in whole or in part.”

113. The appellants say that, both on principle and on authority, the Tribunal was not entitled

to have regard to their substantive findings when deciding the issue of costs.

114. Section 6(1) of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, in its original

form, provided that a tribunal was to make its decision “having regard to the findings of

the Tribunal and all other relevant matters…”

115. It was in that form that the section came to be interpreted in the dictum of McCarthy J in

Goodman v Hamilton, cited above. The full statement upon which the appellants rely

reads:

“Section 6: the liability to pay costs cannot depend upon the findings of the

Tribunal as to the subject matter of the Inquiry. When the Inquiry is in respect of a

single disaster, then, ordinarily, any party permitted to be represented at the

Inquiry should have their costs paid out of public funds. The whole or part of those

costs may be disallowed by the Tribunal because of the conduct of or on behalf of

that party at, during or in connection with the Inquiry. The expression ‘the findings

of the Tribunal’ should be read as the findings as to the conduct of the parties at

the Tribunal. In all of the cases the allowance of costs at public expense lies within

the discretion of the Tribunal, or, where appropriate, its Chairman.”

116. Three written judgments were delivered in that case, i.e., by Finlay C.J. and by Hederman

and McCarthy JJ. O’Flaherty and Egan JJ. expressly agreed with each of the judgments

delivered. Thus, the judgment of McCarthy J would appear to express the unanimous view

of the Court on the points upon which he expressed views.

117. The respondents submit, however, that that the statement of McCarthy J is an obiter

dictum. Furthermore, they say that the amended section makes it clear that substantive

findings may be taken into account.

118. I am quite satisfied that the dictum of McCarthy J, which I have just quoted, is not obiter.

The principal argument of the plaintiff in that case was that the establishment of the

tribunal invaded the constitutionally reserved judicial sphere. Both the High Court and the

Supreme Court rejected that contention. Finlay C.J., at page 590 of the report, by way of

contrasting the function of the tribunal with the judicial function remarked that it was no

“part of the function of the judiciary in our system of law, to make a finding of fact, in

effect, in vacuo.” Again, he said that it was no part of the judicial function “to ascertain

the truth or falsity of facts and report them to Parliament." The plaintiff had argued, in

part, that the tribunal had power to impose upon it a liability for costs. This is what

McCarthy J addressed in the passage quoted above. Thus, the reasons given by McCarthy

J form part of the reasoning of the Court. The possibility of an award of costs being made

against the plaintiff was one of the arguments made for the plaintiff. (see page 569 of the

report). There is no distinction in principle between an order of that kind and an order

depriving a party of his costs, as has occurred here.

119. The key point made by McCarthy J was that costs might be disallowed "because of the

conduct of or on behalf of that party at, during or in connection with the Inquiry,” but not

by reference to the findings made "as to the subject matter of the inquiry." It is true that

the learned judge spoke of "a single disaster" when expressing his view that a party

should normally be represented at public cost and counsel for the respondents relied

strongly on this point. I see no reason, however, to restrict the principle in that way.

There is no distinction of principle, so far as costs are concerned, between an inquiry into

a single disaster and one into corruption whether in the beef industry or in the planning

process. A tribunal of inquiry is established to serve the public interest. It is in the public

interest that every person in possession of relevant information should co-operate with

the inquiry. It is beyond question that the obligation to cooperate may impose greatly on

individuals and expose them to very substantial legal expense. They must incur those

costs without any advance assurance of reimbursement. I think that the ordinary

presumption should be in favour of reimbursement. Otherwise, the obligation to co-

operate with Tribunals would impose loss without compensation on individuals.

120. Geoghegan J expressed similar sentiments by way of an obiter dictum in his High Court

judgment in Haughey v Moriarty, cited above. Referring to awards of costs against

individuals, he said:

“In my opinion, power to award costs under the Act of 1997 is confined to instances

of non co-operation with or obstruction of the Tribunal but that of course would

include the adducing of deliberately false evidence and that is why the statutory

provision specifically requires regard to be had to the findings of the Tribunal as

well as all other relevant matters.”

121. The next question is whether the words interpolated in parentheses by amendment in

1997 affect the principle enunciated by McCarthy J. As a pure matter of construction,

there is some force in this contention. The interpolated words appear after the expression

“all other relevant matters,” and may be said to qualify only that expression, leaving “the

findings of the Tribunal” standing alone. This approach certainly found favour with the

Law Reform Commission in its consultation paper published in 2003, where it said:

“It is critical that there can, therefore, be no room for the suggestion that the

phrase “the findings of the Tribunal” should be taken to mean a finding as to

whether a person has failed to co-operate with the Tribunal. Instead, this key

phrase must bear its natural meaning, that is, the findings of the Tribunal as to the

substantive issue.”

122. The significance of this suggested interpretation, which is also advocated by the

respondents, must be grasped. It means that the findings of the Tribunal are no longer

mere findings of the truth or falsity of allegations the subject matter of the inquiry made,

to use the expression of Finlay C.J., in vacuo. It is instructive also to recall two judicial

statements from the High Court of Australia, which had been cited with approval by

Costello J in his judgment in Goodman v Hamilton at pages 561 and 562. The citations

are from a decision on the functions and role of commissions of inquiry in Victoria v.

Australian Building Construction Employees' and Building Labourers' Federation (1982)

152 C.L.R. 25, concerning a Royal Commission which had inquired into alleged unlawful

behaviour of a trade union or its members. In responding to a challenge to these powers,

Stephen J stated:

“The appointment of a commissioner to inquire into and report upon the

commission of a crime creates no prerogative criminal court; his report can neither

commit anyone nor involve those consequences which a curial finding of guilt

entails. The only direct consequence of his reported conclusion that a particular

person committed a crime is that the mind of the executive is informed of his

conclusion.”

123. Brennan J spoke to similar effect at pages 152-153:

“A commission of mere inquiry and report - affecting no rights, privileges or

immunities, imposing no liabilities, exposing to no legal disadvantage - cannot be

(unless the circumstances are exceptional) either an authority for the assumption of

judicial functions or an interference with the judicial process. Even if a

commissioner be directed to inquire into and report upon a contravention of the

law, the inquiry and report are sterile of legal effect . It is not the nature of the

facts to be found, but the legal effect of the finding which may stamp an inquiry as

judicial . . . The absence of any legal effect in the findings of a royal commissioner

appointed merely to inquire and report denies any suggestion that such a

commissioner is exercising judicial power.”

124. This Court in Goodman v Hamilton dismissed the challenge to the powers of the tribunal

in that case, because the Court held that the powers given to the tribunal were not an

invasion of the judicial function. A tribunal, in the view of the Court, was limited to

making findings of fact, in vacuo, (per Finlay C.J.). They were “sterile of legal effect” (per

Brennan J cited with approval by Costello J).

125. If it be the case that the amendment to section 6(1) has the effect of investing in the

Tribunal the power to refuse to award costs by reason of the substantive findings it has

made, it is difficult to see how its findings could any longer be described as being devoid

of legal consequence, made in vacuo or sterile. I cannot accept the submission made on

behalf of the respondents that the necessary intervention of the taxing master or of

processes of execution alters that fundamental fact. It is incumbent on this Court to

address, only in the last resort, a question as to the constitutional validity of a statute. To

that end, the Court must, so far as the words used by the legislature so permit, interpret

those words so that they do not conflict with the Constitution. In the present case, that

task is simplified by the availability of the judgments in Goodman v Hamilton. The link

created by section 6(1) of the Act of 1979, as interpreted by the Tribunal and as upheld

by Smyth J, appears to empower the Tribunal to penalise a witness before it in respect of

costs by reason of its substantive findings. Clearly, this Court, when delivering judgment

in that case did not contemplate any such possibility. The dictum of McCarthy J avoids

conferring that power on the Tribunal. If this Court had thought otherwise, the result of

Goodman v Hamilton might well have been otherwise. At the very least, the reasons

given by Finlay C.J. would of necessity have had to be different.

126. The Oireachtás can be taken to have been aware in 1997 of the decision in Goodman v

Hamilton. If the legislature had intended to negative the effect of the judgment of

McCarthy J, it could have adopted clear wording to that effect. In fact, it has left intact

the words which were interpreted by McCarthy J. I agree that if the section, in its present

form, were the only matter to be interpreted, it is at least open to the meaning that the

Tribunal may have regard to its substantive findings when deciding on costs. The matter

is not, however, res integra. This Court has said, per McCarthy J, that a tribunal may not

have regard to its substantive findings when deciding on costs. The words which he

interpreted are still in this section. The additional words interpolated in 1997 do not

inevitably reverse the principle enunciated by the Court in 1992. It is possible, without

doing violence to language, to interpret the words in parentheses as qualifying both “the

findings of the Tribunal” and “all other relevant matters.” In the light of the decision in

Goodman v Hamilton and the obligation to interpret in conformity with the Constitution, I

think that is the correct interpretation.

127. I am satisfied, therefore, that the Tribunal, in making a decision as to whether to award

costs is not entitled to have regard to its substantive findings on the subject matter of its

Terms of Reference

Conclusion 128. For these reasons, I would allow the appeal. I would make a declaration that the Tribunal

was not entitled to make findings of hindering and obstructing in respect of the appellants

contained in its Second and Third Interim Reports. I would also make an order, by way of

certiorari quashing the decision of the Tribunal dated 9th November 2004.