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Cite as: [2006] 2 IR 221, [2005] IESC 32

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Judgment Title: O'Brien -v- The Honourable Mr. Justice Moriarty

Neutral Citation: [2005] IESC 32

Supreme Court Record Number: 448/04

High Court Record Number: 2004 817 JR

Date of Delivery: 12/05/2005

Court: Supreme Court

Composition of Court: Murray C.J., Mc Guinness J., Hardiman J., Fennelly J., Kearns J.

Judgment by: Kearns J.

Status of Judgment: Approved

Judgments by
Fennelly J.
Appeal allowed - set aside High Court Order
Murray C.J. (*in part - see notes), Mc Guinness J., Hardiman J.
Kearns J. **
Appeal allowed - set aside High Court Order

Outcome: Allow And Set Aside


JUDGMENT of Mr. Justice Kearns delivered the 12th day of May, 2005

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”,

(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.

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:-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.

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.

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.

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 [1981] I.R. 181. In de Roiste v Minister for Defence [2001] 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 [1985] 1 W.L.R. 1319, per Ackner L.J. (at 1322-3) observed:- In O’Flynn v. Mid Western Health Board [1991]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.

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).

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 [1977] 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.

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 [1984] 3 All ER 201:-Similar views were expressed by Denham, J in Lawlor v Flood [1999] 3 I.R. 107 when she stated (at 137):-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 [1999] 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):-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 [1999] 3 I.R.1 at 79 that:-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:-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:-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 [1993] 1 I.R. 39 and The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642.

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):- Reverting finally to some particulars of these grounds of complaint, I would wish to add some further comment.

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.

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.
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 [1999] 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.
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.
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 [1994] 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:-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 [1994] 1 I.R. 374.

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. [1994] Env. L.R. 298:-

As Kelly J. stated in Gorman v. The Minister for the Environment [2001] 1 I.R. 306 (at. 310):-As Keene J. stated in R. v. Cotswold District Council ex-parte Barrington [1998] 75 P and C.R. 515:- 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.”

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:-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.

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