Notes on Memo: *The Chief Justice disagreed with the conclusion of Fennelly, J. that leave to apply should
be granted on the ground that there was insufficient evidence before the Respondent at the time of the decision of the
Tribunal to proceed to public hearings in respect of the purchase of Doncaster Rovers F.C. On that issue he agreed
with Kearns, J.
**Kearns, J. agreed with Fennelly, J. on one ground namely the vires point on the temporal limitations
on the terms of reference.
THE SUPREME COURT
DENIS O’BRIEN Appellant
MR. JUSTICE MICHAEL MORIARTY
(THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY
and MICHAEL LOWRY)
and Notice PartyJUDGMENT of Mr. Justice Fennelly delivered the 12th day of May, 2005
THE ATTORNEY GENERAL,
REPRESENTING THE PUBLIC INTEREST
On 17th September 2004, the Applicant issued a Notice of Motion seeking Judicial Review of the decision of the Respondent (to whom I will refer as “the Tribunal”) dated 27th May 2004 to “proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported “connection” of Michael Lowry to the said purchase” and an interlocutory injunction restraining the Tribunal from proceeding with those hearings.
The application for leave was heard by Herbert J in the High Court on 21st September 2004. Counsel on behalf of the Tribunal was permitted to present argument against the grant of leave. Herbert J ruled that the application for leave was, nonetheless, ex parte and that counsel for the Tribunal was heard only because of the associated application for a stay on the proceedings of the Tribunal.
Herbert J, by order dated 30th September 2004, refused the Applicant leave to institute proceedings by way of Judicial Review of the decision of the Respondent. He delivered a written judgment on 26th November.
The Applicant served notice of appeal against the High Court order on 4th October 2004. Nonetheless, the Court is dealing with an application for leave to apply for Judicial Review. This is clear from Order 58, rule 13 of the Rules of the Superior Courts which provides:
“Where an ex parte application has been refused in whole or in part by the High Court an application for a similar purpose may be made to the Supreme Court ex parte within four days from the date of such refusal, or within such enlarged time as the Supreme Court may allow.”
The primary function of this Court on this application is to decide whether leave should be granted. The standard to be met on such an application is, as stated in G v Director of Public Prosecutions and another  1 I.R. 374: per Finlay CJ: “…that the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review” and, per Denham J at page 382, having described the burden as “light,”: that the “applicant is required to establish that he has made out a stateable case, an arguable case in law.”
Counsel for the Tribunal have argued that, where arguments have been heard in opposition to the leave, as in this case, a different and higher standard should be adopted. Counsel drew attention to the decision in Gorman v Minister for the Environment  1 I.R. 40, where Kelly J expressed doubts as to whether it was appropriate to adhere to the G v DPP case standard where there had been extensive argument inter partes. However, it had been agreed to maintain that as the relevant standard at the outset of the hearing and the learned judge felt it would be unfair to depart from that ruling. Nonetheless, he cited a number of English decisions. Counsel for the Respondent relies on decisions in Mass Energy Limited v. Birmingham City Council  ENV., L.R. 298; R. v. Cotswold District Council, ex parte Barrington  75 P. and C.R. 515; R. (Portland Port Limited) v. Weymouth and Portland Borough Council  E.W.H.C. Admin. 1171; R. v. Derbyshire County Council ex parte Woods  JPL 958. In Mass Energy Ltd. v. Birmingham City Council  Env. L.R. 298, at pp. 307 and 308 Glidewell L.J. said:-
"First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us ... Thirdly, as I have already said, we have most, if not all, of the documents in front us; we have gone through the relevant ones in detail - indeed in really quite minute detail in some instances - in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.
For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be - and the approach I intend to adopt will be - that we should grant leave only if we are satisfied that Mass Energy's case is not merely arguable but is strong; that is to say, is likely to succeed.”
In the later case of R. v. Cotswold District Council, Keene J spoke of “a reasonably good chance of success if he is to be given leave." The English courts appear to have applied this modified approach both at first instance and to the renewed application on appeal.
Without excluding the possibility of following this line of thinking, I do not think it appropriate in the present instance. The fact that Herbert J declined to apply it is not, in itself, conclusive, though it is a matter to be taken into account. At the hearing of the application, the matter proceeded without any decision in limine. Thus, although counsel for the Tribunal had argued in their written submissions for the modified approach, counsel for the Applicant did not agree. The hearing took place without any decision as to the applicable standard. Therefore, for the reasons given by Kelly J in the Gorman case, I believe it would be unfair to require the Applicant retrospectively to meet a more exacting standard than the one which is normally applied. In addition, I would have serious reservations as to the implications of adopting a modified standard on the renewed application in this Court. Were this Court to determine, at the leave stage, that the case was a “strong” one, I believe that would be regarded as virtually deciding the case or, at least, leaving the High Court judge in great difficulty as to the standard to be applied by him.
One further observation is appropriate before considering the facts and background. In any case where the Court is disposed to grant leave to apply for Judicial Review under certain headings, it is essential that it abstain from expressing or hinting at any view regarding the strength of the applicant’s arguments. Those arguments must be dealt with by the High Court exactly as if leave had been granted in the High Court.
The Terms of Reference of the Tribunal are contained in the resolution passed by the Dáil and Seanad in September 1997 and set out in the Order of the Taoiseach of 26th September 1997 setting up the Tribunal. Two aspects of the Terms of Reference, one substantive and one procedural, are relevant to the present application. The relevant substantive part of the resolution is that it was resolved:
g) Whether Mr Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision.”
“…that it is expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, to inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance:
a) to d) [not relevant]
e) Whether any substantial payments were made directly or indirectly to Mr Michael Lowry,… … … …during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.
The term "payment," is defined so as to include “money and any benefit in kind and the payment to any person includes a payment to a connected person within the meaning of the Ethics in Public Office Act, 1995.”
The relevant procedural provisions of the Terms of Reference are:
i. To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters,
“And that the Tribunal be requested to conduct its enquiries in the following manner, to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:-
ii. To enquire fully into all matters referred to above in relation to which such evidence may be found to exist, and to report to the Clerk of the Dáil thereupon,
iii. In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dáil and to report in such a manner as the Tribunal thinks appropriate, on the steps taken by the Tribunal to determine what evidence, if any, existed…”
The factual background to the application as disclosed in the Applicant’s grounding affidavit is principally relevant to the contention that there is not “sufficient evidence” (the expression used in paragraph (i) of the Terms of Reference), or expressing the converse “there is insufficient evidence” (the expression used in paragraph (iii)) “to warrant proceeding to a full public inquiry.” The following summary of that background is based on the Applicant’s grounding affidavit. It may not, of course, be complete. But it is the basis upon which, at this point, the facts apparently available to the Tribunal when deciding to proceed to public inquiry regarding the Doncaster Rovers matter, need to be assessed for the purpose of deciding whether the Applicant has an arguable ground that there is “insufficient evidence” to warrant a public inquiry.
The Applicant is a well-known Irish businessman. In his grounding affidavit, he describes himself as a businessman with an address in Portugal.
In 1998, the Applicant received a proposal from one Kevin Phelan for the purchase of Doncaster Rovers Football Club. Mr Kevin Phelan, who resides in the United Kingdom, and who is apparently not available to the Tribunal as a witness, contacted the Applicant’s agent, one Aidan Phelan. The two Phelans are not related. On the recommendation of Kevin Phelan, one Christopher Vaughan, an English solicitor was appointed to act for the purchaser in this transaction. Mr Vaughan had acted and was continuing to act for Mr Lowry in connection with other English property transactions.
Doncaster Rovers was purchased in August 1998 by Westferry Limited, part of an O’Brien Family Trust, from Dinard Trading Limited and Shelter Trust Anstalt. A Mr Ken Richardson was described by Mr Vaughan as the “controller” of these entities. The Trust, via Westferry Limited, now owns all the shares in Doncaster Rovers. The transfer took place on 18th August 1998.
The Applicant gave details in his affidavit of the financing of this purchase. He says that Michael Lowry had no involvement, legal or beneficial, at any stage in the transaction. In any event, Mr Lowry had resigned from the Irish Government two years before the transaction, though he continued to be a member of the Dáil and was so at the time of the transactions covered by the Doncaster Rovers module proposed by the Tribunal.
On 25th September 1998, Mr Christopher Vaughan, Solicitor, drafted a letter to be sent to Mr Lowry, discussing Doncaster Rovers in some detail. This letter is central to the Tribunal’s decision under challenge. In it, Mr Vaughan stated, inter alia: “I had not appreciated your total involvement in the Doncaster Rovers Transaction…...” According to Mr Vaughan’s later letter, that letter was neither sent by Mr Vaughan nor received by Mr Lowry. An article based on the draft letter appeared in the Irish Times on 11th January 2003. The Tribunal wrote to the Applicant making inquiries concerning any involvement of Mr Lowry in the Doncaster Rovers transaction. Thus, the Tribunal commenced investigation of this matter in January 2003.
In the week following the meeting of September 1998 referred to in Mr Vaughan’s letter, Mr Kevin Phelan told Mr Vaughan that he was mistaken about Mr Lowry’s involvement in the Doncaster Rovers matter. He had none.
By a letter dated 6th March 2003, Mr Vaughan wrote to the Tribunal explaining his letter of 25th September 1998, stating how he had incorrectly believed that Mr Lowry had had such an involvement with the Doncaster Rovers purchase. Mr Vaughan, having outlined the history of meetings with a number of the relevant persons including Mr Lowry, said that his earlier view was “totally incorrect.” He accepted that in “hindsight it does seem unusual that I believed Michael Lowry to be involved in DRFC, as throughout the whole of the discussions and negotiations relating to the acquisition of DRFC over a period of some nine months, I had never heard Michael Lowry’s name mentioned…….”
The Applicant explains the background to the Vaughan letter as follows. On 24/25 September 1998, Mr Lowry, accompanied by Mr Kevin Phelan, who had organised property transactions for Mr Lowry in England, to a meeting with Mr Vaughan, who was acting for Mr Lowry in other matters, to discuss Mr Lowry’s property transactions. During the course of the discussions, Mr Vaughan and Mr Kevin Phelan discussed the Doncaster Rovers purchase, in respect of which there were some outstanding matters. Mr Lowry remained present and took part in these discussions.
A dispute arose subsequently between the parties to the Doncaster Rovers transaction regarding retention monies. Dinard, later joined by Shelter Trust Anstalt brought proceedings in 2001 against Westferry Ltd in the Queen’s Bench Division of the High Court in England. This dispute was resolved by mediation in September 2002.
A number of odd events are alleged to have occurred about this time. Mr Denis O’Brien, senior, the Applicant’s father later made a statement to police alleging that Mr Richardson and Mr Mark Weaver attempted to blackmail him by threatening that, if the litigation was not settled “in a friendly and generous manner, a copy of [Christopher Vaughan’s letter to Michael Lowry] would find its way to the Tribunal or the newspapers.”
Mr Vaughan prepared a memorandum of 18th October 2002, describing a visit to his office on that date of one Mark Weaver, who produced to him a copy of his draft letter of 25th September 1998 to Mr Lowry. He said this had been sent to him by FAX and that a journalist from the Irish Times had been phoning him constantly about the letter. Mr Weaver described himself as Mr Richardson’s “runner” but also said that he was employed by Dinard trading. He said that Dinard Trading’s solicitors in Zurich had had an approach from a third party to purchase from them all documents in their possession about the Doncaster Rovers matter. Mr Weaver repeatedly asked Mr Vaughan what he should do with the letter. Mr Vaughan took a copy of the fax copy of the letter. He also stated in the course of the memorandum that Mr Lowry had had no involvement in the Doncaster Rovers transaction. He suggested that the approach involved “some sort of blackmail.”
On 10th September 2002, Ms Ruth Collard, a partner in Carter-Ruck and partners, solicitors, who also acted for the Applicant made an attendance note of a meeting with Mr Denis O’Connor, an accountant acting for Mr Lowry. Mr O’Connor is noted as saying that he had been trying to sort out, on the Applicant’s behalf, the “position with Kevin Phelan” and that the latter had made various threats to cause trouble for Mr Lowry. The attendance note contains the following:
On 9th December, Mr Ken Richardson and Mr Mark Weaver presented themselves unannounced at the Tribunal Offices at Dublin Castle. Mr Weaver stated that Mr Lowry was involved in the Doncaster Rovers transaction, that he himself was under police protection that he was receiving mobile phone calls from Kevin Phelan, Christopher Vaughan and the Applicant. Mr Richardson said that he had videos of conversations with Kevin Phelan and Christopher Vaughan stating that money had been given to Michael Lowry.
“DOC said the upshot of all his discussions with DOB and KP had been that he had been asked if he would be prepared to meet Ken Richardson and Mark Weaver and at DOB’s request a meeting had been arranged, first in Manchester and then in Dublin……………. He said that the other side were laughing at us and that they would ensure that the mediation [regarding the retention dispute] would not succeed…… They wanted to cause the maximum embarrassment to ML. RC asked how they would cause any embarrassment to ML, as, so far as she was aware, he had no connection to the proceedings. DOC said that ML did have a connection and that he had been in the room when discussions had taken place between KP and KR regarding the lease. RC said no one had ever suggested that to her previously.” [emphasis added]
As already stated, the Tribunal commenced its investigations of the Doncaster Rovers matter in January 2003. In the course of that investigation, the Tribunal obtained, inter alia, the entire file of Mr Christopher Vaughan, the full statement of Mr Denis O’Brien, senior, made to the London Metropolitan Police, statements from other witnesses and copies of the title documents in connection with the Doncaster Rovers transaction.
The Applicant says that the private phase of the Tribunal’s investigation of the Doncaster Rovers matter has produced “no sufficient evidence” to justify proceeding to public hearings in respect of the Doncaster Rovers matter. A great volume of papers has been placed before the court at the hearing of the present application.
It is, I think, fair to say that the Tribunal does not say that it has, in its possession, any direct evidence that Mr Lowry had an interest in the Doncaster Rovers transaction. It is acknowledged that both the Applicant and Mr Lowry have stated that the latter had no interest at any stage. Neither Mr Christopher Vaughan nor Mr Kevin Phelan is available to attend as a witness at the proposed public hearings, though Ms Ruth Collard is. The Tribunal’s assessment of the state of the evidence is, perhaps best summarised in its letter to the Applicant’s solicitors dated 14th July 2004:
“What has prompted the Tribunal to pursue this inquiry is the fact that while…… there is no reference to Mr Michael Lowry in the title deeds, and while Mr Denis O’Brien, Mr Denis O’Brien Senior, Mr Christopher Vaughan and Mr Denis O’Connor have denied any involvement on the part of Mr Lowry, there is information from which it appears that Mr Christopher Vaughan, Mr Kevin Phelan, Mr Michael Lowry and Mr Denis O’Connor appear to have acted in such a way, on at least one reasonable view, to indicate that Mr Lowry did have such an involvement.”
The Applicant has significantly attenuated the grounds upon which he now relies in seeking leave to apply for Judicial Review of the Tribunal’s decision to proceed to public hearings in respect of the Doncaster Rovers transaction. They were summarised at the outset of the hearing as follows:
1. That any potential involvement or interest by Mr Lowry in the Doncaster Rovers transaction could not amount to a “payment” for the purposes of the Terms of Reference;
2. That payments, as defined in the Terms of Reference, could not include payments arising from transactions, such as the Doncaster Rovers transaction, which were, at the time of the adoption of the Resolutions in 1997, in the future;
3. That, at the time of the decision of the Tribunal to proceed to public hearings, there was “insufficient evidence” of any payment to Mr Michael Lowry;
4. That the Tribunal acted unfairly in conducting an interview in the United Kingdom with Mr Christopher Vaughan in September 2004, in light of the fact that he would not be available as a witness.
5. That the entire process and continued activity of the Tribunal is oppressive, because of excessive delay, since September 1997, in completing its inquiry. The first, fourth and fifth of these grounds can be dismissed almost summarily. I believe they are without merit. The Terms of Reference defines “payment” as including “money and any benefit in kind…” This expression is clearly not limited to money payments. It plainly extends to any interest in a property or commercial transaction of any kind. It would make no sense to limit the scope of the inquiry pursuant to paragraph (e) of the Terms of Reference by reference to any particular kind of property or benefit. Nor can I discern any basis for the complaint regarding the interview of Mr Vaughan. If the non-appearance of Mr Vaughan as a witness gives rise to any unfairness to the Applicant, the Tribunal will be bound to take appropriate steps to protect his legitimate interests, but the mere fact of having interviewed Mr Vaughan cannot be a ground for Judicial Review. Finally, no evidence or argument has been presented which could lead to the halting of the entire work of the Tribunal. It would be an extraordinary matter for the Courts to intervene to restrain the completion of a task mandated by the Oireachtas. It would require exceptional evidence. None has been presented.
I turn then to consider the remaining grounds.
Insufficiency of Evidence
The Applicant argues that there is no sufficient evidence to justify the Tribunal proceeding to public hearings. This argument is combined with a submission that the Tribunal failed to conduct a full and proper inquiry pursuant to paragraph (i) of the Terms of Reference. The relevant parts of the Terms of Reference, which I have described as “procedural” have been set out above.
It is well established by a long line of authorities of recent years in dealing with the various tribunals of inquiry that the interpretation of the Terms of Reference is a function of the Tribunal and not for the courts and, furthermore, that it is entirely a matter for the Tribunal to decide when and whether to conduct private investigations or to proceed to public hearings. Counsel for the Tribunal referred in particular to Goodman International and another v Mr Justice Hamilton and others  2 I.R. 542; Haughey and others v Mr Justice Michael Moriarty  3 I.R. 1; Redmond v Mr Justice Feargus Flood  3 I.R. 79; Bailey v Mr Justice Feargus Flood (High Court unreported 6th March 2000).
Section 2(a) of the Tribunals of Inquiry (Evidence) Act, 1921 is also relevant, insofar as it lays down the basic rule in favour of proceedings being heard in public. It provides:
(a) shall not refuse to allow the public or any portion of the public to be present at any of the proceedings of the tribunal unless in the opinion of the tribunal it is in the public interest expedient so to do for reasons connected with the subject matter of the inquiry or the nature of the evidence to be given..."
"A tribunal to which this Act is so applied as aforesaid -
Tribunals of inquiry, however, necessarily have to conduct much of their initial investigations in private. This is both for practical reasons and to protect the interests and confidentiality of persons assisting the Tribunal in its work. Furthermore, it enables the Tribunal to decide that a particular matter does not warrant a public hearing. The different stages are discussed in the judgment of Hamilton CJ in Lawlor v Mr Justice Feargus Flood  3 I.R. 107. That case makes clear, however, that witnesses cannot be compelled to give evidence in private before counsel for the tribunal. Much of the private investigative phase, therefore, depends on co-operation. The corollary of that proposition is that the Tribunal cannot be compelled to conduct a private investigative phase even when an interested person wishes to protect his confidential or commercial interests. (see Haughey and others v Mr Justice Michael Moriarty; Redmond v Mr Justice Feargus Flood  3 I.R. 79).
The form of the Terms of Reference, which I have cited, were designed to permit the Tribunal to have resort to a practical machinery combining private and public elements. However, it is clearly left to the Tribunal as to how best to utilise these procedures. This was best explained in the judgment of Hamilton CJ in Redmond v Mr Justice Feargus Flood, already cited, in a passage much debated in the argument. The learned Chief Justice stated (see page 94):
“An inquiry under the Tribunals of Inquiry (Evidence) Act, 1921, is a public inquiry. The Court in the passage quoted [from Haughey and others v Mr Justice Michael Moriarty] 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.”
In the earlier case, Haughey v Moriarty, cited above, at page 75 and cited again by Hamilton C.J. the learned Chief Justice had explained the role and purpose of the private phase of a Tribunal’s investigations as follows:
“If these inquiries in this investigation were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby. “
At the hearing of the present application, counsel for the Tribunal emphasised that there is no need for a prima facie or a strong case. Counsel for the Applicant referred to the statement that “the allegation should be substantial in the sense that it warranted a public inquiry.” He drew attention to the existence, in the Redmond case, of a sworn affidavit grounding the relevant allegations.
Counsel for the Tribunal quite correctly did not claim that the decision of the Tribunal was immune from Judicial Review. He submitted that it could be challenged only if it was so unreasonable as to be irrational. It may be material to refer to certain other passages from the judgment of the Chief Justice in Redmond. At page 87 he said;
“There is no doubt but that an inquiry by the Tribunal into the allegations made by Mr. Gogarty as contained in his affidavit sworn on the 12th October, 1998, allied with the exceptional inquisitorial powers conferred upon such Tribunal under the Act of 1921, as amended, necessarily exposes the applicant and other citizens to the risk of having aspects of their private lives 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 and may interfere with the applicant's constitutional right to privacy.
The right to privacy is however not an absolute right. The exigencies of the common good may outweigh the constitutional right to privacy.
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 public life.”
At page 88, he continued:
“The effect of such resolutions is undoubtedly to encroach upon the fundamental rights of the applicant in the name of the common good but is justified by the exigencies of the common good. Such encroachment must however be only for the proper conduct of the inquiry.
The Tribunal is obliged to conduct its inquiry and all necessary proceedings in relation thereto in accordance with fair procedures and the principles of constitutional justice.”
Presumably, it was in recognition of the principles set out in these judgments that the solicitor for the Tribunal stated, in a letter of 14th July 2004 to the Applicant’s solicitors that “the Tribunal recognises that in fairness to persons who might be affected by its inquiries, it is not at liberty to proceed from private or preliminary investigation to a public hearing without a reasonable justification.”
In all these circumstances, looking at the quality of the evidence as it stands, and bearing in mind the “light” burden necessary to justify the granting of leave, I have come to the conclusion that the Applicant has an arguable case that the decision of the Tribunal to proceed to public hearings in respect of the Doncaster Rovers matter, on the basis of the available evidence, was unreasonable in the sense of irrational. I would emphasise that, upon a full hearing of the application for Judicial Review, a court might identify additional evidence already available or take the view that there was “sufficient evidence.” My conclusion is limited to stating that there is an arguable case that, at the date the Tribunal made its decision, it did not have sufficient evidence.
Terms of Reference: application to future benefits
The relevant words of paragraph (e) of the Terms of Reference are whether “any substantial payments were made directly or indirectly to Mr Michael Lowry……”,
This was an expression used in a Dáil and Seanad resolution passed in 1997. It is expressed in the past tense. The question is whether the resolution should be interpreted as requiring “payments” made to Mr Lowry in the future, looked at from that date, to be investigated. Without making any further comment, I would say that the Applicant has established an arguable case and would grant leave on this point. In fact, the point does not, at present, appear in the Statement of Grounds submitted in September 2004. However, the matter was fully argued and dealt with by Herbert J. Counsel for the Tribunal drew attention to the absence of this ground but rightly abstained from objecting to any necessary amendment. The ground relates in a fundamental way to the vires of the Tribunal. I believe the necessary amendment should be made.
Counsel for the Tribunal submitted, as a separate matter, that the Applicant has been so much in delay in making his application for Judicial Review that he has deprived himself of the right to ask the court for relief.
It is important, in the first instance, to identify the delay which is in issue. It is clear that Herbert J approached the matter as involving delay commencing in January 2003, when the Tribunal, prompted by the Irish Times article, commenced to investigate the Doncaster Rovers matter. Since I have not treated the present application as an appeal from the decision of Herbert J but rather as a renewed application to this Court pursuant to a special provision in the rules, it is not appropriate to decide whether Herbert J was correct but rather to look at the matter as it now presents itself.
As I understand it, counsel for the Tribunal does not seek to lay blame at the door of the Applicant as from January 2003. While citing the part of the judgment of Herbert J, which does so, counsel for the Tribunal in their written submissions date the delay from 27th May 2004 and that was how I understood the matter to be argued at the hearing.
In my view, it would be quite wrong to attach blame for delay to the Applicant in respect of the period from January 2003. The decision under attack is the decision to proceed to public hearings, which was not made until 27th May 2004. The Tribunal was engaged in preliminary and private investigation from January 2003. In my view, the Applicant was entitled to take the stance that the matter did not warrant public investigation and to act in the hope that the Tribunal would not so decide. The Applicant has explained his concern that the Tribunal is being unduly intrusive into his private affairs. I take the judgment of Hamilton CJ in Redmond v Mr Justice Feargus Flood and the earlier judgment in Haughey and others v Mr Justice Michael Moriarty as recognising that as a legitimate matter of concern. If the Applicant had applied in 2003 or early 2004 to restrain the investigation, he would necessarily, by that very act, have given widespread publicity to the matter. Furthermore, it is not at all clear that he would have succeeded in obtaining relief at a time when the extent of the evidence available to the Tribunal had not yet been established. In response to any application relating to the insufficiency of evidence, made during the investigative phase, the Tribunal would have argued, almost certainly successfully, that the application was premature.
It is the period after 27th May 2004 which is relevant. The application is for certiorari of the decision made on that day. The application for leave was made on 21st September 2004, less than four months after the date of the decision. This is well within the six-month period provided for such applications by Order 84, rule 21(1) of the Rules of the Superior Courts. The rule also requires that the application be made “promptly.” I will look at the facts, in a moment. Firstly, I would observe that it is undoubtedly the case that the Courts have, in recent years, applied much more severe scrutiny to delayed applications for Judicial Review than formerly. Nonetheless, matters have not reached the stage where an application made within time can be defeated in the absence of some special factor. In my own judgment in Dekra Éireann Teoranta v. The Minister for the Environment and Local Government  2 IR 270, with which three other members of the Court agreed, I said at page 302:
Denham J delivered a separate judgment with the same result, but without making specific reference to this point.
“Nonetheless, a claim cannot normally be defeated for delay if it is commenced within the relevant period. There would need to be some special factor such as prejudice to third parties (The State (Cussen) v. Brennan  I.R. 181).”
The prejudice to a third party, in the case of State (Cussen) v. Brennan was singular. The prosecutor, by his delay, had allowed the successful candidate for the post he had applied for to act on foot of his appointment by, for example, giving notice of termination of his existing employment and instructing solicitors in the purchase of a new house. That case remains, nonetheless, a solitary example. I remain of the view I expressed in the Dekra case, namely that an applicant for leave to apply for Judicial Review will not normally be defeated for failure to move “promptly,” where the application is made within the permitted time. The burden would be on the Respondent to establish the contrary.
In the present case, following communication of the Tribunal’s decision on 27th May, solicitors for the Applicant engaged in correspondence with the Tribunal via its solicitor. The letters exchanged were lengthy and extremely detailed. The Applicant objected strenuously to the decision. He complained of the intrusion into his private affairs, the publicity that would inevitably be generated, but especially to what he argued was the lack of evidence to justify the decision. The Applicant was endeavouring to persuade the Tribunal not to hold the public hearings. A letter of 15th June stated:
The letter proposed the “the correct thing to do is to recognise that there is no proper evidence indicating any payment to Mr Lowry.” The Tribunal did not refuse to entertain this correspondence. On the contrary, the correspondence, while argumentative, and at times heated, examined helpfully and in considerable detail the nature of the Tribunal’s reliance, in particular, on Mr Vaughan’s letter and the absence of any direct evidence purporting to link Mr Lowry to the Doncaster Rovers transaction.
“Our client is extremely concerned that the public hearing of matters pertaining to Doncaster Rovers and the purported connection of Mr Lowry will have the effect of greatly damaging his reputation in circumstances where no such inquiry is merited since there is no proper evidence supporting the alleged connection.”
I do not think it was unreasonable for the Applicant to try to persuade the Tribunal to alter its decision and to spend upwards of two months in endeavouring to do so. At one point, 7th July, the solicitor for the Tribunal used the expression: “if notwithstanding the submissions you have made, the Sole Member does not alter his determination to proceed to a Public Inquiry in connection with the Doncaster transaction……” This suggests that the Tribunal had at least an open mind. The correspondence was live from May to July, became dormant in August and resumed in September.
I do not think the Applicant failed to apply “promptly.” I do not think the Tribunal has established any prejudice of the type considered in State (Cussen) v Brennan. There is, furthermore a particular consideration in the present case which suggests that the Applicant should not be defeated on the ground of delay. One of the grounds upon which I would grant leave to apply for Judicial Review is that arguably the Tribunal has no power to investigate alleged payments to Mr Lowry made after the date of the Terms of Reference. It would not be in the public interest to permit a Tribunal to proceed into the future to act on the basis of a doubtful interpretation of the Terms of Reference.
For the reasons here given, I would grant leave to apply for Judicial Review by way of certiorari of the decision of the Tribunal dated 27th May 2004 to proceed to public hearings in respect of the purchase of Doncaster Rovers Football Club and the purported “connection” of Michael Lowry to the said purchase on the grounds that:
(a) the Terms of Reference of the Respondent do not empower it to investigate transactions taking place after the date of the establishment of the Tribunal and giving rise to payments to Mr Michael Lowry;
(b) it was not reasonable for the Respondent to determine that there was sufficient evidence before Respondent at the time of that decision, namely 27th May 2004, to warrant proceeding to a full public inquiry in respect of the matter of the involvement of Mr Michael Lowry in the purchase of Doncaster Rovers Football Club.
The Applicant also seeks, by way of ancillary relief, an interlocutory injunction restraining the Tribunal from conducting the proposed public hearing pending the determination of the present application for Judicial Review. The Tribunal opposes the grant of an injunction. In my view, the continuation of the public hearing, while the Judicial Review proceedings have not been determined, would defeat the purpose of the Applicant’s application. He objects to an intrusive inquiry into his business affairs on the two grounds mentioned. It seems obvious that this intrusion would take place if the Tribunal were to implement its decision of 27th May 2004.
Against these considerations, the Tribunal relies, inter alia, on the decision of this Court in McDonnell v Brady  3 I.R. 589. The Court, in that case, held that the normal criteria in respect of the grant of an interlocutory injunction applied to an application of this type. It was a material consideration in that case that the particular Oireachtas sub-committee would be unable to complete its work prior to the dissolution of the Dáil, if the injunction were granted. The Tribunal in the present case also pleads the necessity to complete its report, which is clearly a legitimate consideration. The governing criterion is the balance of convenience. In the McDonnell case the concerns of the Applicant were procedural, lack of legal assistance and failure to provide fair procedures, in particular. In my view, the balance of convenience more strongly favours the grant of an injunction in a situation where the grounds upon which leave to apply for Judicial Review is granted would, if successful, mean that there would be no public hearing at all on the matter in issue.
I would, therefore, grant an interlocutory injunction restraining the Tribunal from proceeding to hold public hearings in respect of the Doncaster Rovers transaction until the determination of the application for Judicial Review.
THE SUPREME COURT
MR. JUSTICE MICHAEL MORIARTY
(THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY AND MICHAEL LOWRY)
I have read the judgment about to be delivered by Fennelly J in this case and agree with it to the extent that I also believe that an arguable case has been established on one ground, namely, that the investigation of a transaction subsequent in time to the establishment of the Tribunal may arguably be regarded as falling outside the temporal limits of its Terms of Reference.
However, I would be strongly of the view that this appeal should be dismissed on all other grounds, both on the grounds of delay in bringing the leave application and because no arguable case has been made out in relation to those other grounds.
Delay cannot, of course, preclude the granting of leave where an arguable case is made out that the Tribunal has acted ultra vires in embarking upon a line of inquiry which falls outside its Terms of Reference. Arguments as to whether the acquisition of Doncaster Rovers Football Club at a time subsequent to the establishment of the Tribunal can only be seen as jurisdictional in character and going to vires. However, the other complaints in this case concern the decision of the Tribunal to proceed to public sittings in circumstances where it is contended that there was insufficient evidence to warrant such decision and, secondly, that the Tribunal wrongly so decided when certain witnesses were unavailable. These are intra vires decisions of the Tribunal where delay in bringing judicial review proceedings promptly may altogether disentitle an applicant from relief. Such I believe to be the case here.
(A) The Effects of Delay
The factual background in this matter is set out more fully in the judgment of Fennelly J and I will only refer to the underlying facts of this matter to the minimum extent necessary.
On the 11th January, 2003, an article by Colm Keena appeared in The Irish Times under the headline “Lowry linked to £4m deal by letter”.
The article suggested that “new evidence” had emerged linking Mr. Michael Lowry to a Stg. £4m property deal involving the appellant in Britain. A letter seen by Mr. Keena concerning the planned purchase of Doncaster Rovers Football Stadium was stated in the article to suggest that a “key adviser to Mr. O’Brien” believed the former Minister had a “total involvement” in the deal.
The “key adviser” was Mr. Christopher Vaughan, a Northampton based solicitor, who had written the letter in question to Mr. Michael Lowry on the 25th September, 1998. Mr. Vaughan was then acting on behalf of Westferry Limited, a company owned by the O’Brien family, in relation to the purchase. The text of the letter was reproduced in the article and it included the following sentence:-
The Irish Times newspaper article went on to state that:-On the 13th January, 2003, the Tribunal solicitors wrote to the applicant requesting “at your earliest convenience and certainly within the next seven days”,
“I had not appreciated your total involvement in the Doncaster Rovers transaction and I am therefore enclosing a copy of my Completion Letter which was sent to Kevin Phelan, Paul May and Aidan Phelan on completion.”
(1) Details of the events which gave rise to such complaint.
(2) All matters and considerations which prompted the making of a ` complaint.
(3) The precise nature of the complaint made.
(4) The steps taken by the authorities to investigate such complaint.
Without going into any great detail concerning the correspondence which subsequently ensued, it is clear that the Tribunal, as and from January, 2003, was interested in investigating this transaction, Mr. Lowry’s involvement (if any) in it and the circumstances in which a complaint had been made to the London police arising out of the production of this letter during the mediation hearing referred to.
(5) The outcome of such complaint or of any investigation instigated on foot of such complaint.
The Tribunal also wishes to obtain copies of all documents in your client’s power, possession or procurement regarding the events surrounding the complaint, the complaint made, the steps taken to investigate such complaint and the outcome of such complaint.”
The Tribunal pressed urgently for information both as to the source of the funds employed in the purchase of Doncaster Rovers Football Club and for documents and statements in relation to the transaction. In this regard, the Tribunal experienced considerable delay which was explained by the solicitors for the appellant as being referable to such matters as long absences abroad by the appellant on business commitments, and by his father also, by the fact that Mr. O’Brien senior was now represented by a different firm of solicitors, and also by problems relating to the provision of waivers of solicitor and client confidentiality.
However, on the 12th May, 2004, the Tribunal wrote a long and detailed letter to the solicitors to the appellant requesting information in relation to the transaction and indicating that the Tribunal might determine that it should proceed to hear evidence in relation to those matters at public sittings. The letter also advised that certain information had been made available to the Tribunal by a Mr. Denis O’Connor, who acted as accountant to Mr. Michael Lowry. The letter went on to seek comments from the appellant in relation to an attendance which was noted on the file of a firm of solicitors, Peter Carter-Ruck and Partners, and made by Ms. Ruth Collard, a partner in that firm, at a meeting in London with Mr. Denis O’Connor on the 10th September, 2003, arranged by Westferry Ltd.
In that attendance, Ms. Ruth Collard stated she had attended the particular meeting at which Mr. O’Connor allegedly stated that Mr. Michael Lowry had a connection with the acquisition of Doncaster Rovers and had been present in a room with other parties when discussions had taken place with regard to the lease. The Tribunal’s letter concluded:-
By further letter dated 27th May, 2004, the Tribunal stated to the appellant’s solicitors that it had heard nothing from the appellant in relation to its requests. In the letter of the 12th May, 2004, and continued:-
“The Tribunal intends to conclude the investigative phase of its work into this matter in very early course and, if appropriate, to proceed to public sittings in the very near future.”
Thereafter the solicitors for the applicant asked what allegations were being made against the appellant in respect of the Doncaster Rovers transaction. They requested copies of all material furnished to the Tribunal in the course of its private investigation into the transaction together with all notes or memoranda relating to meetings with or documents furnished by a number of named parties since the setting up of the Tribunal. They also sought confirmation that the various named parties were available to give evidence.
“The Tribunal has now determined that it is appropriate to proceed to hear evidence at public sittings of the Tribunal pursuant to para. (e) of its Terms of Reference in relation to the Doncaster Rovers Football Club project and the connection of Mr. Michael Lowry with the project. The Tribunal expects to commence public sittings shortly after the commencement of the new legal term and anticipates hearing evidence into this matter from in or about the middle of next month.”
By letter dated 9th June, 2004, the Tribunal wrote to the solicitors for the applicant addressing these matters, stating it was not yet in a position to confirm whether all of the named parties would be available to give evidence, but indicating that the solicitors for the appellant would receive public sittings books in early course and the identity of the persons whom the Tribunal intended to call to give evidence would be apparent from those books.
It is clear beyond question that the appellant’s solicitors regarded the 27th May, 2004, as the effective date of the decision of the Tribunal to hold public sittings, because by letter dated 10th June, 2004, the appellant’s solicitors wrote in the following terms to the Tribunal:-
It is not necessary to further review the lengthy and argumentative correspondence which continued between the solicitors for the applicant and the Tribunal. In my view, the learned trial judge correctly identified the 27th May, 2004, as the date upon which the Tribunal clearly indicated its intention to commence public hearings into the Doncaster Rovers transaction. Quite apart from the decision to go public, the grounds for any challenge on the basis that the right of the Tribunal to carry out this particular investigation was ultra vires went back much beyond that, and probably as far back as January, 2003. In relation to the other grounds of complaint by the appellant, the same were all fully set out in letters dated 10th and 15th June, 2004 and were repeated in letters of 9th and 26th July, 2004. No alteration of the Tribunal’s decision was forthcoming but still no application to court was made. Eventually an Opening Statement was delivered by the Tribunal on the 15th September, 2004 as this particular module finally got under way. Only then, on the 17th September, 2004, was a Notice of Motion to court issued and the ensuing leave application began on the 21st September, 2004.
“We are extremely concerned at the decision of the Tribunal to proceed to public hearings on a matter which quite clearly relates to the private business activities of our client and which has no connection with the Terms of Reference passed by resolution of Dáil Éireann and Seanad Éireann on 11th September and 18th September, 1997, respectively… we are also of the strong opinion that the Tribunals actions in proceeding to investigate these private matters is a breach of the rights that our client enjoys under the European Convention on Human Rights as implemented into Irish Law by the European Convention on Human Rights Act, 2003. Our client reserves his right to seek to challenge the decision of the Tribunal to commence public hearings on this matter on the grounds that it is ultra vires its Terms of Reference.”
Order 84 or 21 (1) of the Rules of the Superior Courts, 1986, provides:-
In this case, particularly having regard to the long involvement of the appellant with the Tribunal, both in this and in previous hearings, and having regard further to the clear lines of dispute which had emerged between the appellant and the Tribunal over many months, if not indeed years, up to the 27th May, 2004, there was the clearest need to move speedily and expeditiously on the vires point when it became apparent in 2003 and on the remaining points as soon as was possible after the 27th May, 2004. The requirement under the Rules to move “promptly” should never be taken as meaning that the outer limits of promptitude are co-terminous with the last date of any period of time specified in the Rules for moving judicial review applications.
“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made.”
That leave can be refused where there has been a failure to move promptly, even though the time period has not expired, was recognised in State (Cussen) v. Brennan  I.R. 181. In de Roiste v Minister for Defence  1 I.R. 190, Fennelly J , in stressing that an applicant is bound to apply promptly, stated (at 221):-
Similarly, in considering the identical wording in the English Rules, the Court of Appeal in R v Stratford-on-Avon D.C, ex parte Jackson  1 W.L.R. 1319, per Ackner L.J. (at 1322-3) observed:-
“The judicial review time limit is not a limitation period. Prompt pursuit of a remedy is, however, a requirement of the judicial review remedy”
In O’Flynn v. Mid Western Health Board 2 I.R. 223, this Court deprecated eleventh hour attempts to render nugatory the efforts of administrative bodies. In that case, the applicants had waited for eight months before applying for judicial review of a decision to establish a Committee investigating certain complaints against them.
“The essential requirement of the rule is that the application must be made ‘promptly’. The fact that an application has been made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been made promptly. Thus there can well be cases where a court may have to consider whether or not to extend the time for making the application, even though the application has been made within the three month period”
Needless to remark, the particular circumstances of an individual case will in many instances highlight the obvious necessity of moving promptly and expeditiously to challenge decisions by way of judicial review. Sometimes it is also a statutory requirement. Modern legislation shows an increasing impatience with endless legal challenges to decisions of administrative bodies and ministerial decisions, and many recent statutes provide strict cut-off periods for challenges of this nature, including, for example, the Irish Takeover Panel Act, 1997 (seven days), the Illegal Immigrants (Trafficking) Act, 2000 (fourteen days), Compulsory Purchase Orders confirmed by the Minister for the Environment under s. 78(1) of the Housing Act, 1966 (three weeks), decisions of a planning authority or an Bord Pleanala (eight weeks), orders of the Minister for the Environment and Local Government made under s.49 or s.51 of the Roads Acts 1993-1998 (two months) and decisions of the E.P.A. under the Environmental Protection Agency Act, 1992 to grant or refuse licenses (two months). The list is not exhaustive, but these examples reflect an increasing concern on the part of the legislature that legal challenges must be brought and disposed of promptly if huge delays, costs and expense are to be avoided across a whole range of projects and activities. I can see no lesser requirement of urgency where a Tribunal is charged by the Oireachtas with an investigation as a matter of “urgent public importance”.
Given that all the difficulties of which complaint is now made, including the allegedly inadequate evidence and the almost certain non-availability of certain witnesses, were well known to the appellant and his advisers for many months, the failure to move this application until the 22nd September, 2004, several days into the hearing of this particular module, seems to me inexcusable. A Tribunal is not like a small rowing boat which can be whistled back to harbour from the pier’s end. It is more like an aircraft carrier which spends months enlisting crew and laying in provisions in preparation for departure on an appointed day. Having signalled that departure date well in advance, a challenge to the propriety of the journey which is deferred until the journey is under way requires some considerable justification in my opinion. The main explanation tendered for delay however is that the appellant subjectively believed that an adverse public reaction would follow any early attempt by him to bring proceedings which might have the incidental effect of preventing certain information entering the public realm. I must confess I find myself totally unimpressed by this argument, not least because precisely the same reaction can attend a late, as well as an early, application to court. That excuse, if such it be, has to be placed in the balance with the significant cost and time expended by the Tribunal, and presumably other parties also, in preparing for this particular module. When these various considerations are placed in the balance, the decision in my view must firmly come down against condoning or permitting such delay and in favour of refusing leave for that reason.
While the appellant also raised an issue about the propriety of a meeting held in London on the 9th September, 2004, between counsel for the Tribunal and Mr. Vaughan, arguing that such a meeting should not have taken place as it was not authorised under the Terms of Reference having regard to the fact that the Sole Member was not present, nothing seems to me to turn on this complaint, whether the meeting should, or should not, have taken place in the manner in which it did. It cannot affect the issue as to whether or not there was excessive delay in bringing this application, or indeed the allegation that there was inadequate evidence to justify the decision to proceed to public sittings. It is in my opinion a spent issue on any view of the matter.
(b) Sufficient Evidence
It is submitted on behalf of the appellant that there is no sufficient evidence to justify a decision on the part of the Tribunal to proceed to a public hearing in relation to the Doncaster Rovers transaction and that the Tribunal is accordingly precluded from so proceeding.
However, once some evidence is available to the Tribunal, it seems to me that the decision to proceed to public sittings is then intra vires and a matter for the Tribunal and that the court should in those circumstances be extremely slow to interfere with the Tribunal’s own assessment that there is a sufficiency of evidence to warrant going public.
It is perhaps appropriate to commence any discussion of this theme by referring to the Terms of Reference which require the Tribunal:-
It is important in this context to carefully consider what the Oireachtas may have meant when using the word “evidence”. Is it to be taken as meaning “information indicating whether a belief or proposition is true or valid” as the word is so defined in the Concise Oxford English Dictionary (11th Ed). Alternatively, is the word “evidence” to be taken as meaning only “evidence admissible in a court of law”, a specifically legal meaning which may also be ascribed to the word (and one which also appears in the Oxford Dictionary).
“B(i) To carry out such investigations as it thinks fit using all the powers conferred on it under the Acts (including, where appropriate, the power to conduct its proceedings in private), in order to determine whether sufficient evidence exists in relation to any of the matters referred to above to warrant proceeding to a full public inquiry in relation to such matters.”
This distinction seems to me to be at the nub of this part of the application.
It seems to me that when this word is used in the context of a Tribunal of Inquiry, the word should be taken as meaning more than just evidence which may be admissible in a court of law. I would favour the broader of the two interpretations as deriving from the inquisitorial and investigative nature of the Tribunal process itself, so that the word ‘evidence’ should be taken not merely as meaning ‘admissible evidence’ but as also meaning and including ‘relevant information’ in the sense of material which provides a realistic and reasonable basis for proceeding to public sittings.
That a tribunal can adopt less stringent tests than a court in deciding what material may be admissible is well established, subject to the requirement of fair procedures. As Henchy J noted in Kiely v Minister for Social Welfare  IR 267 (at 281):-
These observations of Henchy J were cited with approval recently by this court in the majority judgment delivered by Geoghegan J in O’Callaghan v Mahon Tribunal (Unreported, 9th March, 2005). I allude to the passage, however, because it neatly encapsulates the fact that there are many kinds of material or ‘evidence’ to which a tribunal may have regard when discharging its remit, subject always to the requirements of fair procedures.
“This Court has held, in cases such as In re Haughey, that Article 40, s.3 of the Constitution implies a guarantee to the citizen of basic fairness of procedures. The rules of natural justice must be construed accordingly. 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 a fair result.”
It would , in my view, be incorrect to assess the Tribunal’s decision to proceed to public sittings as analogous to that of a District Judge in former times when he decided that the material in a Book of Evidence was sufficient to warrant a return for trial of a criminal accused, or, in the case of the Director of Public Prosecutions, that the evidence is sufficient and sufficiently reliable to warrant charging a suspect with a particular offence. Any such approach to “evidence” in the context of a Tribunal decision to move from private session to public sittings, requiring in effect the establishment of a prima facie case on evidence only admissible in a court of law, would, in my opinion, be misconceived. This is quite simply because Tribunals of Inquiry operate in a different way from courts, as indeed was noted by the Salmon Commission on Tribunals of Inquiry (1966) (para.30):-
In similar vein, Lord Diplock stated as follows in Mahon v. New Zealand  3 All ER 201:-
“There are important distinctions between inquisitorial procedure and the procedure in an ordinary civil or criminal case. It is inherent in the inquisitorial procedure that there is no lis. The Tribunal directs the inquiry and the witnesses are necessarily the Tribunal’s witnesses. There is no plaintiff or defendant, no prosecutor or accused; there are no pleadings defining issues to be tried, no charges, indictments or depositions. The inquiry may take a fresh turn at any moment.”
Similar views were expressed by Denham, J in Lawlor v Flood  3 I.R. 107 when she stated (at 137):-
“An investigative inquiry into facts by a Tribunal of inquiry is in marked contrast to ordinary civil litigation, the conduct of which constitutes the regular task of High Court judges, in which their experience in the methodology of decision making on factual matters has been gained. Where facts are in dispute in civil litigation conducted under the Common Law system of procedure, the judge has to decide where, on the balance of probabilities, he thinks that the truth lies as between the evidence which the parties to the litigation have thought it to be in their respective interests to adduce before him. He has no right to travel outside that evidence on an independent search on his own part for the truth; and, if the parties evidence is so inconclusive as to leave him uncertain where the balance between the conflicting probabilities lies, he must decide the case by applying the rules as to the onus of proof in civil litigation. In an investigative inquiry, on the other hand, into a disaster or accident of which the Commissioner who conducts it is required, as the judge was in the instant case, to inquire into and to report on ‘the cause or causes of the crash’, it is inevitable, particularly if there are neither survivors nor eyewitnesses of the crash, that the emergence of facts, and the realisation of what part, if any, they played in causing the disaster and of their relative importance, should be more elusive and less orderly, as one unanticipated piece of evidence suggests to the Commissioner, or to particular parties represented at the inquiry, some new line of investigation that it may be worthwhile to explore, whether, in the result, the exploration when pursued leads only to a dead end or, as occurred in one particular instance in the present case, it leads to the discovery of other facts which throw a fresh light on what actually happened and why it happened.”
Any suggestion that some sort of prima facie case had to be made out prior to public sittings of a tribunal was expressly rejected by this court in Redmond v Flood  3 I.R. 79. It had been submitted in that case, in the light of the earlier decision of this court in Haughey v Moriarty, that a Tribunal should only proceed to a public hearing if there was a prima facie case or a strong case against a particular individual. In rejecting this proposition, Hamilton CJ stated (at p.95):-
“The difference between proceedings in court (and being a party thereto) and a Tribunal of Inquiry to which a person is called to give evidence is important. The Tribunal hearing is not a criminal trial nor is it even a civil trial, nor is the person a party. The hearing is an inquiry to which the person is a witness.”
I believe a court should only intervene to set aside a Tribunal decision to proceed to public sittings if there is absolutely no evidence to support the Tribunal’s decision. Appropriate deference should be given to decisions of the Tribunal, not least because it is well settled, and indeed was so stated, by Hamilton CJ in Haughey v Moriarty  3 I.R.1 at 79 that:-
“… The court (in Haughey v. Moriarty) was not suggesting that the Tribunal should proceed to a public inquiry only if there was a prima facia case or a strong case against a particular citizen. It was suggesting that the allegations 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.”
The view that the requirement is that there be “absolutely no evidence” before a court should intervene to quash a tribunal decision to proceed to public sittings receives support from the following passage in the judgment of Morris, P in Bailey v Flood (High Court, unreported, 6th March, 2000), a decision upheld by this court, in which, at p.23 of his judgment he stated:-
“The interpretation of the Terms of Reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself”
In the present case, it cannot be said that there is “absolutely no evidence” (in either the sense of admissible evidence or in the wider sense I have found the word ‘evidence’ in the context of the Terms of Reference to mean). The full detail of the available information is summarised in the written submissions filed on behalf of the respondent to this Court and made available by the Tribunal, as per its letter dated 7th July, 2004, to the appellant’s solicitors, and consists of the following:-
“…I think it clear that if the sole member, on a preliminary investigation found sufficient evidence in relation to even one issue, then he should proceed to public sittings. The clause is directed towards nipping a Tribunal in the bud, should it be determined that there is absolutely no evidence to support any of its inquiries. Presumably, the purpose is to prevent the needless expenditure of public monies that would accompany public sittings of a Tribunal that has nothing into which to inquire.” (emphasis added)
However, even if the only information or evidence available to the Tribunal consisted of the letter written by Mr. O’Brien’s solicitor, Mr. Vaughan, to Mr. Lowry in which he referred to Mr. Lowry’s “total involvement” with the Doncaster Rovers transaction, that, in my view, would, in the case of this particular decision, be sufficient to satisfy the requirements as to reasonableness which attach to a decision maker pursuant to O’Keeffe v. An Bord Pleanála  1 I.R. 39 and The State (Keegan) v. Stardust Victims Compensation Tribunal  I.R. 642.
“(1) The fact the Mr. Vaughan, the appellant’s solicitor, formed the view in the course of a meeting with Mr. Lowry that Mr. Lowry had a ‘total involvement’ in the DRFC transaction, and was sufficiently certain of Mr. Lowry’s involvement to write to him in relation to the transaction, furnish him with documentation pertaining to it, and provide him with access to confidential advice as to how the purchaser ought to divest itself of its assets;
(2)The fact that, whatever the circumstances in which Mr. Vaughan formed that view, no one disabused him of the impression that Mr. Lowry was involved in the transaction, with the latter undertaking on 25th September, 1998, to arrange a meeting with Aidan Phelan in relation to the matter.
(3) Mr. Vaughan had himself conceded that it seemed unusual that he believed that Mr. Lowry was involved. He did not however appear to have written to correct the impression recorded in his letter to Mr. Lowry dated 25th September, 1998.
(4) The fact that Denis O’Connor, Mr. Lowry’s accountant, subsequently involved himself in mediation hearings relating to the agreement. Mr. O’Connor was described by the appellants solicitor as representing neither Westferry nor the vendor, and indeed was permitted to continue to act in relation to the mediation, although no one was entirely certain what his role was or why he had become involved; and
(5) The fact that in the course of that involvement, Mr. O’Connor appears to have advised another solicitor that Mr. Lowry did indeed have a connection with the DRFC transaction and that he had been present when discussions took place between Mr. Phelan and Mr. Richardson regarding the lease on the Doncaster premises.
Insofar as it was argued that such an approach opens the door to a citizen having his private affairs examined on the basis of rumours rather than solid evidence, it is important to remember that the Salmon Commission stressed that lapses or even ‘rumoured’ lapses of accepted standards of public administration may on occasion require a tribunal-type investigation to allay concerns:-
As Morris P. pointed out in his judgment in Bailey v. Flood (at p.33):-
“The history of inquiries to which reference has been made shows that from time to time cases arise concerning rumoured instances of lapses in accepted standards of public administration and other matters causing public concern which cannot be dealt with by ordinary civil or criminal processes but which require investigation in order to allay public anxiety” (para.22)
Reverting finally to some particulars of these grounds of complaint, I would wish to add some further comment.
“The very reason for the establishment of such a Tribunal is that urgent matters causing grave public disquiet need to be investigated in order either to root out the wrongdoing or to expose the concerns as misplaced. If a Tribunal is to accomplish its purpose on either count it is profoundly important that it be seen to conduct a thorough, methodical inquiry in which no special treatment is accorded to anyone and where matters are shielded from public scrutiny and criticism only where absolutely necessary, such as where to do otherwise would jeopardise the lives of individuals. The public concern and disquiet must be met either by establishing facts which give rise to the concern or disquiet or alternatively establish that the fears or cause for concern and disquiet were groundless.”
While Mr. Vaughan is said not to be available to the Tribunal, the appellant clearly would be available to answer such questions as may be put to him concerning a letter written by his own solicitor. So too is Mr. O’Brien snr., Mr Lowry and Mr Denis O’Connor.
Obviously evidence may be adduced suggesting that Mr. Lowry had no role whatsoever to play in the particular transaction. However, that is not the point. The Tribunal has determined on the basis of credible information that it is a matter which ought to be investigated. The appellant’s case appears to be that because he denies the suggested involvement of Mr. Lowry, as indeed Mr. Lowry does himself, and because Mr. Vaughan subsequently furnished an explanation in relation to his letter and the suggestion that Mr. Lowry was involved, that there is, therefore, nothing to go to public hearing. That also misses the point. The decision of the Tribunal to hold public hearings on this question is founded on relevant information which provides a rational basis for the decision to hold public sittings.
I also believe that the further complaints of the appellant in relation to the non-availability of Christopher Vaughan and Kevin Phelan are misplaced. The appellant contends that the evidence of Christopher Vaughan and Kevin Phelan is essential in order to enable the Tribunal to ascertain “the full picture” in relation to the Doncaster Rovers transaction. I am left in a state of uncertainty as to precisely why Mr. O’Brien’s former solicitor, Mr. Vaughan, is not available to assist the Tribunal, but be that as it may, I agree with the trial judge who, in relation to this argument, stated that the absence of Mr. Vaughan and Mr. Phelan “does not …establish even an arguable case for halting all public hearings of the Tribunal in relation to the DRFCL transaction.”
Herbert J. went on to state (at p 45):-
I agree entirely with this passage in the judgment.
“I am not satisfied that evidence cannot be given at public sittings of the Tribunal in relation to the DRFCL transaction by Mr. Denis O’Brien senior, Mr. Aidan Phelan, Mr. John Ryall, Mr. Michael Lowry and the applicant in the absence of evidence from Mr. Christopher Vaughan and Mr. Kevin Phelan without that being unfair to the applicant.
If Mr. Christopher Vaughan does not give evidence, then, in particular having regard to the letter from Mr. Christopher Vaughan to the Tribunal dated 6th March, 2003, the respondent will have to decide what weight (if any) he can give to the letter of 25th September, 1998, in making his report to the Clerk of the Dáil. However, the fact that this issue might have to be addressed by the respondent is no basis for seeking an order of this Court halting all public sittings of the Tribunal inquiry into the DRFCL transaction. This is especially so as the Tribunal is on notice of matters altogether separate from and unconnected with this letter of the 25th September, 1998, such as the Ruth Collard attendance of 10th September, 2002, in which she records Mr. Denis O’Connor, accountant to Mr. Michael Lowry, as stating that Mr. Lowry did have a connection with the DRFCL transaction. It might well be that the respondent, having heard evidence from witnesses other than Mr. Christopher Vaughan and Mr. Kevin Phelan would be in a position to conclude that Mr. Christopher Vaughan was, as he now insists he was, wholly incorrect in the belief which he expressed in his letter of 25th September, 1998, to Mr. Michael Lowry, that Mr. Lowry was totally involved in the DRFCL transaction.”
It is quite clear in the present case that the Tribunal has taken its decision to proceed to public sittings while being fully cognisant of the likely unavailability of Messrs. Vaughan and Phelan and has given its reasons for doing so in its letter of the 7th July, 2004. Once it decides to so proceed, it is, in my view, for the Tribunal to set down the procedures for any such hearing including, inter alia, the admissibility of evidence. In preparing his report, it must be presumed that the Sole Member will only take account of evidence given to him at public hearings. I cannot see how the non-availability of these two witnesses in any way precludes the Tribunal from proceeding to public hearings.
I would refuse the leave application on these particular grounds.
(C) Terms of Reference - Temporal Dimension
As already noted, the Tribunal was appointed by Executive Order dated 26th September, 1997, to enquire urgently into and report and make findings on definite matters of urgent public importance as outlined in resolutions passed by Dáil Éireann on the 11th of September, 1997, and by Seanad Éireann on the 18th of September, 1997.
It is not a matter of dispute that proposals concerning the purchase of Doncaster Rovers were only first put forward in 1998. Doncaster Rovers was subsequently purchased in August, 1998, by Westferry Ltd, a company which is wholly owned by the appellant’s family trust. This trust was settled by the appellant as a discretionary trust on the 16th of September, 1997, and the beneficiaries of the trust have at all times been the appellant or members of his immediate family. The trustees are Wallbrook Trustees (IOM) Ltd, a division of Deloitte and Touche. The appellant obtained a loan facility in his own name from Woodchester Credit Lyonnais Bank on 23rd April, 1998, in the sum of Stg. £700,000. This funded the deposit monies for the Doncaster purchase. Westferry Ltd. obtained a loan facility from Anglo Irish Bank for Stg. £3,385,000 to fund the balance of the purchase price of shares in Doncaster Rovers. The appellant became guarantor for this loan on the 13th August, 1998, and the transfer of title of the shares in Doncaster Rovers to Westferry Ltd. took place on the 18th August, 1998.
In this portion of the appeal, the appellant raises two issues:
(a) Whether it is appropriate to engage in an investigation of the Doncaster Rovers transaction where it is alleged that the Tribunal is not investigating any “payment”, however broadly that term is defined.
(b) Whether the Doncaster Rovers transaction, being an event which occurred after the establishment of the Tribunal in September, 1997, can fall within its remit.
It appears clear from the Tribunal’s Opening Statement in relation to this particular module made on the 15th September, 2004, that its decision to investigate the Doncaster Rovers transaction arises from a concern that Mr. Lowry may have had some involvement in the transaction.
Before considering the two issues raised by the appellant, it is perhaps appropriate to set out that portion of the Terms of Reference which underpin this line of inquiry. The Terms require the Tribunal to “enquire urgently into…:-
It was accepted during the hearing of the application in the High Court that Mr. Michael Lowry was a member of Dáil Éireann in 1998, but that he ceased to hold Ministerial office in 1996. In the course of the hearing before this Court, counsel on behalf of the appellant did not pursue the argument that Mr. Michael Lowry did not hold “public office” within the meanings of the Terms of Reference at the time when the appellant acquired his interest in Doncaster Rovers.
(e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry (whether or not used to discharge monies or debts due by Mr. Michael Lowry or due by any company with which he was associated or due by any connected person to Mr. Michael Lowry within the meaning of the Ethics in Public Office Act, 1995, or discharged at his discretion), during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had to potential to influence the discharge of such office.
(f) The source of any money held in the Bank of Ireland, Thurles Branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel Island, the Allied Irish Bank, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Ltd. in the Isle of Man, the Irish Permanent Building Society, Patrick Street Branch, Cork or Rea Brothers (Isle of Man) Ltd, in accounts for the benefit or in the name of Mr. Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr. Lowry or for the benefit or in the name of a connected person within the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr. Lowry.
(g) Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision.
(h) Whether any payment was made from money held in any of the bank accounts referred to at (f) to any person who holds or has held public office.
(i) Whether any holder of public office for whose benefit money was held in any of the accounts referred to at (b) or (f) did any act, in the course of his/her public office, to confer any benefit on any person who was the source of that money, or directed any person to do such an act.” (emphasis added)
The appellant submits however that the Tribunal is acting ultra vires its Terms of Reference because it is merely investigating whether Mr. Michael Lowry has a “connection” to the Doncaster Rovers transaction, as distinct from whether any substantial payment or benefit in kind was received by Mr. Lowry.
However, it is well settled and was so stated by Hamilton C.J. in Haughey v. Moriarty  3 I.R.1 (at 79) that:-
To stultify the Tribunal in the performance of its functions by precluding it from enquiring into any matter until it had first determined whether or not a payment had been made would effectively deprive the Tribunal of its ability to perform its functions. Ultimately it must focus on the issue as to whether or not Mr. Lowry received a payment or benefit in kind. At this stage, and based upon the information and material already in its possession, the Tribunal is performing its investigative role with a view to establishing the facts, including the possibility of any such payment. This ground of complaint is manifestly unfounded in my view.
“The interpretation of the Terms of Reference of the Tribunal is, at this stage, entirely a matter for the Tribunal itself.”
I have however come to the view that an arguable case can be made that this leg of the Tribunal’s inquiry falls outside the Terms of Reference because the transaction in question post-dated the establishment of the Tribunal.
The underlined portions of the Terms of Reference cited above do, on the face of it, and taking the words in their ordinary sense and meaning, refer to past events.
In dealing with this issue, the learned trial judge stated (at p. 22):-
It goes without saying that a “pay-off” for a political favour rendered at one point in time may take place months, or even years, later. However, in the present case, no evidence of any sort whatsoever exists to suggest that the Doncaster transaction existed in any shape or form at the time the Tribunal was set up. Indeed the evidence is all the other way, that the proposal to purchase was first made in 1998. The transaction in no way straddles the date upon which the Tribunal was appointed and its Terms of Reference fixed. Every part of it post-dates that event.
“In my judgment there is nothing in language of para. (e) which would constrain the court to infer that the intention of the Houses of the Oireachtas was to limit the enquiry by the tribunal to some period prior to 18th September, 1997, the date of the resolution by Seanad Éireann. I do not believe that the recital in the second paragraph of the Terms of Reference referring to, ‘serious public concern arising from the report of the Tribunal of Inquiry (Dunne’s payments)’, which established that irregular payments were made to certain persons who were members of the Houses of the Oireachtas between 1st January, 1986 and 31st December, 1996, is to be read as in any manner limiting the time frame of the inquiry to be undertaken by the Tribunal to this period. This second paragraph does no more than furnish the historical basis upon which the Houses of the Oireachtas deemed it necessary to establish the present Tribunal of Inquiry. In my judgment, the use of the past tense in the phrase, ‘during any period when he held public office’, does not limit the inquiry to the period prior to the passing of the resolution establishing the Tribunal by Seanad Éireann on 18th September, 1997. The fact that by its Terms of Reference the Tribunal is required, ‘to enquire urgently into’ the matters indicated and to complete it’s inquiry ‘in as economical a manner as possible and at the earliest date consistent with a fair examination of the matters referred to it’, does not support the argument that it cannot be concerned with events such as the Doncaster Rovers transaction occurring after 18th September, 1997.
In my judgment, a right of the respondent to investigate is, in the case of Mr. Lowry, limited only by reference to those periods when Mr. Michael Lowry held ‘public office’ as above defined and provided, ‘sufficient evidence exists’ as this phrase is defined by the Supreme Court in the case of Redmond v Flood  3 I.R. 79 at 95, to justify public inquiry by the Tribunal subject to the right of the Houses of the Oireachtas by further resolutions to fix a date within which the Tribunal must report. For this reason, I reject the submission of the applicant that the inquiry by the Tribunal is so unlimited in scope and time as to amount to unreasonable oppression of the applicant and a breach of his constitutional right to fair procedures. There is clearly no question of the Tribunal being able to investigate the business affairs of the applicant or of Mr. Michael Lowry ‘forever’ as was suggested by counsel for the applicant.”
The Terms of Reference clearly adopt the past tense in setting out the scope of the Tribunal’s inquiry, as I have emphasised above. To adopt a construction which permits or mandates the Tribunal to consider events or possible payments made subsequent to the establishment of the Tribunal and the fixing of its Terms of Reference may arguably be seen as going beyond the temporal limitations of the Terms of Reference. Arguably also, any other interpretation might impose upon the Tribunal a task which had no temporal limitation and thus no completion date. Thus, to take the most extreme example, the Tribunal might be required to continue and maintain its investigations right up to the present and beyond. If it does not end at some specified point, one might reasonable ask: where does it end? An open-ended agenda might require that the Tribunal, if it had a definite line of inquiry suggesting that a payment be made at some future time, remain in existence to monitor that situation through to its conclusion.
Such a possibility may arguably be seen as inconsistent with those Terms of Reference which require the Tribunal “to inquire urgently into” the matters indicated and to complete its inquiry “in as economical a manner as possible and at the earliest date consistent with the fair examination of the matters referred to it”.
For these reasons I believe an arguable case has been made out that this module falls outside the Terms of Reference given to the Tribunal.
That said, it is perfectly obvious that this point was available to be taken by the appellant and his legal advisors from the very outset. The Tribunal first signalled its interest in inquiring into this transaction in early 2003. The failure thereafter to seek the judicial review remedy on this point until the 22nd September, 2004, has in no respect been justified. No application to court was made until months of preparation had been undertaken by the Tribunal, a date fixed for its public sessions and an opening statement made on the 15th of September, 2004. Quite clearly, considerable costs must have been incurred which have been, or may now be, thrown away as a result of this belated application .However, I am bearing in mind that the Sole Member, regardless of the outcome of this application, does have powers to address this aspect of the case as he sees fit at a later stage.
Having regard to the overriding requirement that the Tribunal proceed to complete its work with the minimum of further delay, and having regard also to the fact that leave is being granted on what is essentially a net point, I would believe that the full hearing of this matter should be heard and determined by the High Court as a matter of considerable urgency and within a matter of weeks, not least because the granting of leave on this ground effectively precludes the Tribunal from continuing its work on this module until the particular issue is resolved. No matter how one looks at it, and bearing in mind there may be a further appeal to this court from any decision of the High Court, a delay of effectively a full legal year in the Tribunal’s work is now inevitable.
(D) The Appropriate Test in an Application for Judicial Review inter partes
In the decision in G v. the Director of Public Prosecutions and Judge Kirby  1 I.R. 374 the Supreme Court (per Finlay CJ. At p.378 and per Denham J. at p.382) defined the burden of proof on an applicant for leave to seek judicial review as requiring that such applicant establish “that the facts averred in the (verifying) affidavit would be sufficient, if proved, to support a statable ground for the relief sought by way of judicial review (and) that on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.”
In the present case both sides were heard in the course of a lengthy hearing before the learned trial judge which went on for 9 days. In his judgment, however, the learned trial judge held that there was no inter partes hearing within the strict meaning of that term in respect of the leave application in this case. He did not accede to the application by counsel for the respondent that the application for leave to seek judicial review should be deemed to be a hearing inter partes. As he states (at p.5 of his judgment):-
The learned trial judge went on to note that:-
“Over nine days of extended sittings the court undoubtedly had the benefit of detailed inter partes arguments on all aspects of the leave application. However, this was in the context of the application for a stay of further public proceedings by the Tribunal in respect of the DRFCL transaction pursuant to the provisions of Order 84 R. 20 (7) of the Rules of the Superior Courts or, alternatively, for injunctive relief to the same effect pending the hearing and determination of the application for judicial review.”
In those circumstances, the learned trial judge decided it would be “unjust and unfair” for the court to impose any higher test on the applicant for leave to seek judicial review than the test laid down in “G” v. The Director of Public Prosecutions and Judge Kirby  1 I.R. 374.
“In the case of the Garda Representative Association v. Ireland (unreported) December 18th, 1987, Supreme Court, it was held that the principles set out in the case of Campus Oil Ltd. v. The Minister for Industry and Energy (No. 2)  I.R. 88, as governing the grant of interlocutory injunctions applied also where such injunctions were sought during the course of applications for judicial review. It was accepted on all sides during the course of argument in the instant application, that for the purpose of determining whether the applicant had raised a fair, substantial, bona fida question for determination, the respondent and the notice party would necessarily have to address the same material and issues as would be relevant to considering whether the facts averred, if proven, would support a statable ground for the relief sought and, that on those facts, the applicant could make an arguable case in law for that relief, without having to establish that the tests were the same or did not differ in any material respect.
In these circumstances, though counsel for the respondent opened the decisions in Mass Energy Ltd. v. Birmingham City Council  ENV., L.R. 289; R. v. Cotswoold District Council, Ex-parte Barrington  75 P and C.R. 515; R(Portland Port Ltd.) v. Weymouth and Portland Borough Council  EWHC Admin. 1171; R. v. Derbyshire County Council ex-parte Woods  JP L 958 and Gorman v. The Minister for the Environment 1 I.R. 306, the question of whether the burden on the applicant at this leave stage in the instant case was to establish not merely an arguable case, but a case that was likely to succeed or to show a reasonably good chance of success if given leave to seek judicial review, was not fully argued before me.”
If the matter was not fully argued or determined in the court below, as the learned trial judge has so found, what follows hereafter must of necessity be obiter only.
For my part, I would be strongly of the view that in those instances where an application for leave to seek judicial review is required to be made on notice to the respondent, or where the judge having charge of the matter decides that the same should be made on notice to the respondent, and where on foot of such provision or direction a respondent is heard on the application, it is appropriate and desirable that the threshold to be surmounted by the applicant should be higher than when the application is made ex-parte.
As Glidewell J. stated in Mass Energy Ltd. v. Birmingham C.C.  Env. L.R. 298:-
As Kelly J. stated in Gorman v. The Minister for the Environment  1 I.R. 306 (at. 310):-
“First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us…Thirdly, as I have already said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail - indeed in really quite minute detail in some instances - in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.
For those reasons taken together, in my view, the proper approach of this court, in this particular case, ought to be - and the approach I intend to adopt will be - that we should grant leave only if we are satisfied that Mass Energies case is not merely arguable but is strong; that is to say, is likely to succeed.”
As Keene J. stated in R. v. Cotswold District Council ex-parte Barrington  75 P and C.R. 515:-
“That approach appears… to make a great deal of sense and to make for a more economical use of court time than the application of the substantially lower standard of arguable case to a hearing of this sort.”
Some support for this approach may also be found in the decision of O’Caoimh J. in D.C. v. D.P.P. (unreported, High Court, 18th May, 2004) where the approach advocated by Kelly J. in O’Gorman was applied, O’Caoimh J. holding that leave should be granted “only if the applicants case is not merely arguable but is strong, that is to say, likely to succeed.”
“…Where the court seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the court is in a better position to judge the merits then as usual on a leave application. It may then require (a claimant) to show a reasonably good chance of success if he is to be given leave.
In the present case this court has heard arguments stretching over one and a half days from all three parties, each represented by leading counsel and with substantial skeleton arguments from all three parties, and with all the documentation which those parties have been able to assemble over the period of almost 4 months since this application was lodged. This is very different, therefore, from the ordinary 20 minutes ex-parte leave hearing.”
As already indicated, I cannot really see any good reason why this issue was not tackled head-on when both parties were before the High Court and where all points canvassed on this appeal were fully argued and debated. In fact, it would be fair to say that, having regard to the length of time which the hearing took, they must have been debated in far greater detail than they were before this Court. This is in no way intended as a criticism of the learned High Court judge, whose judgment in this case is otherwise comprehensive and carefully reasoned.
The Tribunals of Inquiry (Evidence) Acts, 1921 - 2002 not only provide Tribunals with certain powers but acknowledge in express terms the urgency which attaches to the process in which Tribunals of Inquiry are engaged. Section 1(1) provides:-
Having regard to cumbersome nature of Tribunals of Inquiry and the obvious need, as expressly recognised in the 1921 Act, that they should discharge responsibilities in matters of “urgent public importance”, it seems to me highly desirable that:-
“Where it has been resolved… by both Houses of Parliament that it is expedient that a Tribunal be established for inquiring into a definite matter described in the resolution as of urgent public importance, and in pursuance of the resolution a Tribunal is appointed… the instrument by which the Tribunal is appointed may provide that this Act shall apply, and in such case the Tribunal shall have all such powers, rights and privileges as are vested in the High Court…”(emphasis added)
It seems to me that if these requirements were to obtain, the number and duration of legal challenges might be significantly reduced and the ability of Tribunals to get to the end of their work in timely fashion might be enhanced to a significant degree.
(a) Any challenge to the powers or decisions of a Tribunal should be made at the very earliest opportunity after the cause for complaint arises.
(b) That where an application is made for leave to bring judicial review proceedings to challenge some decision of a Tribunal that it be made on notice to the Tribunal concerned
(c) That a test higher than the “arguable case” test should apply in such circumstances to the leave application.