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Supreme Court of Ireland Decisions
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Cite as:  2 ILRM 1,  3 IR 338,  IESC 15
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Judgment Title: Mahon -v- Post Publications
Composition of Court: Murray C.J., Denham J., Hardiman J., Geoghegan J., Fennelly J.
Judgment by: Fennelly J.
Status of Judgment: Approved
THE SUPREME COURT
Record No. 367/05
HIS HONOUR JUDGE ALAN P. MAHON,
HER HONOUR JUDGE MARY FAHERTY
AND HIS HONOUR JUDGE GERALD B. KEYS
(MEMBERS OF THE TRIBUNAL OF INQUIRY
INTO CERTAIN PLANNING MATTERS
POST PUBLICATIONS LIMITED
TRADING AS THE SUNDAY BUSINESS POST
1. In this appeal, the Planning Tribunal asks the Court to hold that it has power to require that documents which it circulates prior to public hearing of its modules be treated as confidential and to make general orders restraining the defendant and, in effect, all media of communication, from publishing them until they are disclosed at a public hearing.
2. The plaintiffs are members of the Tribunal of Inquiry into Certain Planning Matters and Payments. The Tribunal was established pursuant to an instrument of the Minister for the Environment and Local Government dated 4th November 1997 by virtue of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979 and a resolution passed by Dáil Eireann on 7th October 1997 and by Seanad Eireann on 8th October 1997. The terms of reference of the Tribunal have been amended by a number of subsequent ministerial instruments. I will refer to the plaintiffs as the Tribunal.
3. The defendant is a limited company. It is a subsidiary of Thomas Crosbie (Holdings) Ltd, which publishes “The Examiner.” It also publishes the “Sunday Business Post.”
4. The present proceedings commenced on 17th December 2004 when Finnegan P., on an ex parte application, granted to the Tribunal injunctions in terms set out in a plenary summons issued on 20th December 2004. By notice of motion served for 17th January 2005 the Tribunal applied for interlocutory injunctions in the same terms. Following adjournments to facilitate an exchange of affidavits, the matter came on before Kelly J. in the High Court. By agreement the hearing of the motion was treated as the trial of the action. There were no pleadings other than the plenary summons. In the absence of a statement of claim or of an order granting leave in judicial review proceedings, the issues must be gleaned from the affidavits filed in respect of the application for an interlocutory injunction. The injunctions sought in the proceedings, and granted by Finnegan P., were:
Further or in the alternative an injunction restraining the Defendant its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the Defendant its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information and/or document."
5. The Tribunal’s motion was grounded on an affidavit of Ms Marcelle Griffin (hereinafter “Ms Griffin”). Mr Anthony Dinan swore an affidavit on behalf of the defendant and Ms Griffin swore a replying affidavit. A comprehensive summary of the evidence and, to a considerable extent, argument is to be found in the judgment of Kelly J. The entire case depends on the confidentiality of certain documents circulated by the Tribunal.
6. The Tribunal expounded its policy in respect of confidentiality in a protocol of 14th January 1998. The Tribunal appreciated the concern with regard to personal and commercial confidentiality of persons wishing to assist it in its work. To protect these “legitimate concerns,” it outlined a number of measures it proposed to adopt. Principally, these were:
7. The Tribunal would return all original documents to their owners on conclusion of its work. In addition:
· All copies of documents containing confidential, commercially sensitive or personal information would be destroyed on conclusion of its work;
· Confidential information not relevant to the inquiry would not be disclosed to any outside party;
· Documents containing both confidential, commercially sensitive or personal information and other information, which was relevant, would have irrelevant information blanked out (“redacted”).
9. Ms Griffin describes the Tribunal’s modus operandi, which is by now very well known from various judgments of this Court. It divides its work into a first, investigative stage and a second hearing stage. The Tribunal conducts the first stage entirely in private. The second consists of public hearings. Ms Griffin explains that, in the first stage, the Tribunal seeks statements from persons who may be called as witnesses at public hearings. The confidentiality of this stage is essential to the work of the Tribunal. All those participating are made aware of this stipulation. Persons assisting the Tribunal expect and may demand confidentiality as a condition of their cooperation and will be dissuaded by the publication of “leaked” information in the news media. In addition, and most materially for the purpose of the present appeal, the Tribunal circulates a set of documents or a “brief” some six weeks in advance of the commencement of public hearings in relation to one of its modules. These briefs are circulated to a carefully selected and limited number of persons. The purpose is to enable those persons to prepare for the public hearing. In every case, such persons are expressly notified in writing that the circulation is on a strictly confidential basis. The terms of the confidentiality requirement, as set out in the letter accompanying the documents circulated in October 2004, which gave rise to the present proceedings, was:
11. On 11th December 1998, the Tribunal sat in public to consider whether to make an order pursuant to the provisions of section 4 of the Tribunals of Inquiry (Evidence) Act, 1979, whose terms I will describe later, against a number of newspapers and broadcasters. The then Sole Member delivered a lengthy ruling on 18th December 1998, reiterating the position already taken that all documentation and information relating to its inquiry work was confidential, indication that it was considering the making of an order against one newspaper company and concluding:
12. In late 1998, following complaints from the Tribunal to the Commissioner of An Garda Síochána, a garda investigation into leaks took place. It lasted four months. Ninety eight people were interviewed including four journalists. The journalists refused to cooperate or to reveal their sources of information. Further unauthorized publication in 2001 led to a public statement by the Sole Member.
13. On 24th January 2001, the Sole Member made a public statement at a sitting of the Tribunal expressing “concern about the content of some recently published newspaper articles.” The statement did not specify the articles or their publishers but explained that the Tribunal found it appropriate from time to time to seek discovery of bank records of individuals and companies but that this did not mean that such individuals had been guilty of any impropriety. The Sole Member also said that the Tribunal had recently learned that a memorandum from the legal department of a bank had come into the possession of a national newspaper, but that the newspaper in question had undertaken not to publish the information. On 26th January 2001, the Tribunal wrote to the solicitor for the defendant in reference to publication by Mr Frank Connolly in the Sunday Business Post entitled of an article entitled: “Flood Probes TDs’ Bank Accounts.” The letter stated that the article appeared to have been based on documents compiled from a series of letters written to a financial institution by the Tribunal. The letter cited in full the Tribunal’s statement of confidentiality. It complained that the newspaper was undoubtedly aware of that policy and that publication of the article constituted a very serious breach of the confidentiality of the Tribunal.
14. It does not appear from Ms Griffin’s affidavit that any further similar publications occurred between 2001 and October 2004, when the story leading to the present appeal commences. As will become apparent, the injunction sought by the Tribunal does not relate to this material.
15. On 15th October 2004, the Tribunal circulated the brief for its pending “Coolamber” module. It included the confidentiality stipulation quoted above.
16. On 17th October 2004, the Sunday Business Post published two articles, written by Barry O’Kelly, entitled: “Jim Kennedy’s Pipe Dream;” and “Fifty Councillors named in new planning tribunal list.”
17. On 21st October 2004, the Tribunal wrote to Mr O’Kelly at the Sunday Business Post as follows:
19. Ms Griffin draws attention to a particularly disturbing feature of this publication. Mr Campion gave evidence in public at the Tribunal on 14th, 15th and 19th October 2004. During those sittings, the Tribunal directed that the names of three specific persons mentioned in Mr Campion’s statement should not be disclosed but that they be referred to as A, B and C. Mr O'Kelly was clearly aware of this direction. His article said: “The names of the TDs ……were left unsaid at the request of the Tribunal. Quite plainly, Mr O’Kelly was fully aware that the Tribunal regarded as confidential both the statement of Mr Campion and the names of the three TD’s mentioned. The Tribunal had written to the newspaper on 21st October. Mr O’Kelly was blatant in his defiance of the claim of confidentiality.
20. Mr O'Kelly phoned the Tribunal on 26th October 2004 to state that he could not comply with the written request that he name his sources. He was relying on journalist’s confidentiality. The Tribunal received two serious written complaints on behalf of persons who had been circulated with documents over which they claimed to place a requirement of confidentiality. These are cited more fully in the judgment of Geoghegan J. The Tribunal wrote to all recipients of the “Coolamber Brief” seeking to ascertain the source of the leak. All those persons denied that they had been responsible for any disclosure.
21. Correspondence was then exchanged between the Tribunal and solicitors for the defendant. I do not think it is necessary to relate it in detail. The Tribunal unsuccessfully sought disclosure of Mr O'Kelly’s sources. They also asked for an undertaking that the documents in his possession be kept and not destroyed. The defendant's solicitors took the position that only Mr O'Kelly knew the source of the information and that he relied on journalist’s privilege and that they had conveyed the Tribunal’s request not to destroy the documents to their client. The solicitors informed the Tribunal that the documents had been destroyed by Mr O'Kelly. He asserted that their return to the Tribunal might reveal the source of his information.
22. The Tribunal summoned Mr O'Kelly, Mr Dinan and Mr Richard Martin, solicitor, to appear at a hearing on 1st December 2004. Mr O'Kelly, having confirmed that he had received appropriate legal advice, declined to produce the copy of Mr Campion’s statement, which was in his possession. He said that he had destroyed it. At a subsequent hearing, Mr O'Kelly refused to reveal his sources. Mr Dinan declined to give an undertaking on behalf of the Sunday Business Post, that it would not publish “information or documentation in relation to which it [Sunday Business Post ] is aware that the Tribunal has directed that such information or documentation should remain confidential……”
23. Ms Griffin has sworn, in her grounding affidavit on behalf of the Tribunal that, “if an injunction is not granted against [the defendant] then that newspaper will continue to publish confidential information ……” She continued: “The Tribunal is gravely concerned that, based on its experience to date, some or all of the documents will be deliberately leaked by persons to whom they have been circulated in a deliberate attempt to undermine the Tribunal.” (emphasis added). Thus, the Tribunal makes it clear that it attributes the leaks to the persons to whom it has circulated information. It does not suggest that they come from Tribunal sources.
24. Mr Dinan, in his affidavit on behalf of the defendant contests the jurisdiction of the Tribunal to demand that Mr O'Kelly reveal his sources or to demand that newspapers give undertakings as to future conduct. He disputes that the relevant information is or was confidential or that the Tribunal was entitled to maintain any claim of confidentiality in respect of it. Mr Dinan explains the attitude generally taken by journalists to the revelation of sources. It is that this is a principle which must be maintained in the public interest: “It frequently falls to journalists to reveal matters of which the public ought to be aware, but which journalists have obtained from sources who have provided the same only on the basis of a guarantee that their identity will not be revealed. If that guarantee was broken in any given cases, then the likelihood of other material being provided in future……would become very small indeed.”
25. Mr Dinan went on to swear that the publication of the articles of which the Tribunal complained was in the public interest. He explained that the attitude of the defendant newspaper was that “the decision of the Tribunal to declare a document confidential could not of itself be regarded as determinative of any decision as to whether not to publish. This decision must be made only by the editor of the newspaper in the proper context where all matters are considered.”
26. More generally, Mr Dinan swore:
The High Court Judgment
25. Kelly J, in a comprehensive judgment delivered on 4th October 2005  IEHC 307, rejected the Tribunal’s application.
26. He was, he said, concerned only with future publications. He noted that there was little factual dispute between the parties. The Tribunal was asserting confidentiality in respect of everything contained in a brief, but made no distinction based on whether information or documents had or had not been obtained on the basis of an assurance of confidentiality. He summarised the Tribunal’s case as follows:
27. The defendant, on the other hand contested the power of the Tribunal to direct that documents or information should be confidential, in the manner claimed. Furthermore, it said that the documents do not have the necessary quality of confidentiality. The defendant argued that the reliefs sought were not specific enough, because the documentation or information was not readily identifiable. It submitted, in particular, that an order as sought would fetter its constitutional rights pursuant to Article 40.6.1 of the Constitution.
28. Kelly J commenced his analysis by pointing out that the injunctions were an attempt to restrain an organ of the press from publishing material. Following a review of a number of decisions of the High Court and the Supreme Court with regard to the interpretation of Article 40.6 of the Constitution and of the European Court of Human Rights regarding Article 10 of the Convention, he observed:
It is against this background of a constitutionally guaranteed entitlement to press freedom coupled with a similar right under Article 10 of the Convention that this application for injunctive relief must be viewed.”
29. Kelly J. then proceeded to consider the entitlement, claimed by the Tribunal, to assert a claim of confidentiality over the material circulated as part of its brief, and to restrain the publication by the Sunday Business Post. He demonstrated by reference to the judgments of this Court in O’Callaghan v Judge Alan Mahon and others, (Supreme Court Unreported 9th March 2005  IESC 9) (conveniently referred to as JR324 in the submissions in this case), that the Tribunal had failed to maintain a claim of confidentiality in the circumstances of that case.
30. Kelly J also reviewed the history of the law in respect of the equitable doctrine of confidence, with citations from English and Irish cases. He observed that the reliefs sought by the Tribunal covered all material in a brief, whether or not it was truly of confidential character. The only material capable of protection under the doctrine was that which had the necessary quality of confidence about it. He concluded:
The only material which could be capable of protection is that which has the necessary quality of confidence about it. Material which is public property and public knowledge cannot have that quality. No order of the Tribunal can make it so. Some of the material in the brief might well be capable of protection but the injunctive reliefs sought make no such distinction or give any clue in that regard.”
32. I find myself fully in agreement with the approach adopted by Kelly J. In particular, he was right to take as his starting point the proposition that the matter as involving a request to restrict freedom of expression. I will turn then to discuss these issues.
33. The Tribunal’s notice of appeal contains fourteen grounds. Seven grounds take issue with that part of the High Court judgment which held that the order sought was overbroad and that there was insufficient information to enable the court to frame an appropriate order so as to protect only “truly confidential material.”
34. Regarding the substance of the Tribunal’s case, one ground concerned the failure of the High Court:
36. I do not propose to consider the issue of the Official Secrets Act. As was pointed our when the matter was raised at the hearing, that Act provides only for criminal sanctions. I do not see any basis for the allegation that it imports a right for the Tribunal to impose a requirement of confidentiality.
37. The Tribunal’s case is, therefore, expressly based on the claimed confidentiality of documents circulated by the Tribunal “in the interest of permitting affected individuals to vindicate their constitutional rights.” Mr Paul O’Higgins, Senior Counsel, for the Tribunal, argued that what was involved was a species of public-interest confidentiality. The public interest consisted in vindicating the good name of individuals as part of the Tribunal process. The Tribunal should be in a position to assure those who engage with it in its work that the information they provide will be used only in the interests of its inquiries and circulated in such a way that their confidence is respected.
38. Mr O’Higgins accepted the prima facie status of freedom of speech and argued that the issue was where the balance was to be struck.
39. The Tribunal does not dispute that the order it seeks would impinge upon the freedom of expression of the defendants and of others affected by the order. Nor does it dispute that it must rely on one of the permitted qualifications of that right.
Freedom of Expression
40. The Tribunal seeks, in the form of an injunction, a general order restraining future publication by the media. That form of order is called prior restraint. That is axiomatic and must be recognised before proceeding further in the discussion.
41. Freedom of expression is, of course, guaranteed both by the Constitution and by the Convention, but, even without those guarantees and simply on the basis of the common law, it is elementary that any party asking a court to impose prior restraint of publication must justify it.
42. It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Griffin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
43. The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television PLC  Fam. 192;  3 WLR 20:
44. For the purposes of the present appeal, it is the last sentence of that passage which is important. The Tribunal needs to point to an exception clearly defined by law.
45. To be fair to the Tribunal, it has never contested or sought to diminish the importance of the freedom of the press to report and comment on its proceedings. For example, Ms Griffin has exhibited in her grounding affidavit the decision of the then Sole Member of the Tribunal dated 18th December 1998 which contains the following admirable statement:
47. It is, therefore, necessary to consider the extent and nature of the right at issue before addressing the question of the restrictions which may be justified.
48. Article 40.6.1(i) of the Constitution guarantees the: “right of citizens to expressly freely their convictions and opinions……” The present case concerns the communication of information rather than opinions. The constitutional origin of the right to communicate information has been considered in two cases:
49. In Attorney General v. Paperlink Limited  ILRM 373 at p. 381, Costello J situated it in Article 40.3.1°. He reasoned as follows:
Article 40.6.1 deals with a different though related matter. It is concerned with the public activities of the citizen in a democratic society. That is why, the Court suggests, the framers of the Constitution grouped the right to freedom of expression, the right to free assembly and the right to form associations and unions in the one sub-section. All three rights relate to the practical running of a democratic society. As Barrington J. stated in Irish Times Ltd. v. Ireland  1 I.R. 359, the rights of the citizens "to express freely their convictions and opinions" guaranteed by Article 40.6.1° is a right not only to communicate opinions but also to communicate the facts on which those opinions are based. If this means that there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1°, so be it. The overlap may result from the different philosophical systems from which the two rights derive.”
51. Clearly, the Constitution, unequivocally guarantees both the right to express convictions and opinions and the right to communicate facts or information. These rights are inseparable. It matters little, at least for present purposes, which Article of the Constitution expresses the guarantee. The right of a free press to communicate information without let or restraint is intrinsic to a free and democratic society.
52. The real issue is the extent to which and the grounds upon which restrictions on that right may be justified. In the constitutional context, Barrington J, at a later point in the judgment of the Court quoted above, added that “both the right of freedom of expression and the right of freedom of communication are personal rights and both can, in certain circumstances, be limited in the interests of the common good.” (page 25). The Court proceeded to judge the case before it (concerning a statutory prohibition on broadcasting of advertisements “directed towards any religious or political end…”).
53. Our courts, therefore, recognise that the right of freedom of expression is not absolute. It may be necessary to reconcile it, in the event of conflict, with other constitutional rights. It may even, as in the case of Murphy v. I.R.T.C., be restricted or controlled by laws passed for the advancement of other legitimate social purposes. In such cases, the courts have found it useful to have resort to the principle of proportionality. The judgment of Barrington J identified the issue at page 26 as follows:
55. Article 10 of the Convention guarantees the exercise of freedom of expression in the following terms:
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
56. Just as the Court (Barrington J) in Murphy v I.R.T.C., posed for itself the question whether the statutory restriction on broadcasting religious broadcasts was “proportionate to the purpose which the Oireachtas wished to achieve,” a question may be formulated as a test for the present case in accordance with Article 10(2) of the Convention. In De Rossa v Independent Newspapers  4 IR 432, a libel case, Hamilton C.J., speaking for the majority of the Court recalled, at page 449 of the judgment, the dictum of Henchy J in Hynes-O'Sullivan v. O'Driscoll  I.R. 436 at p. 450 that “the law must reflect a due balancing of the constitutional right to freedom of expression and the constitutional protection of every citizen's good name." Hamilton C.J. added that there did not “appear to be any conflict between Article 10 and the common law or the Constitution.” That is an issue to which I will return in more detail.
57. I believe, therefore, that the Convention analysis provides a particularly useful mechanism for examination of the justification for imposition of the restriction sought by the Tribunal in the present case. As Geoghegan J said in his concurring judgment in Murphy v I.R.T.C., "[a]lthough the European Convention on Human Rights is not part of Irish municipal law, regard can be had to its provisions when considering the nature of a fundamental right and perhaps more particularly the reasonable limitations which can be placed on the exercise of that right." This dictum was approved by Hamilton C.J, speaking for the majority of the Court, in his judgment in De Rossa v Independent Newspapers, cited above.(page 450).
58. The restriction sought is said to justified by the need of the Tribunal to protect the confidentiality of information communicated to it while it is carrying out its functions in accordance with the Tribunals of Inquiry Acts and the Oireachtas resolutions which established it.
59. Section 2 of the European Convention on Human Rights Act 2003 now requires the Court in interpreting “any statutory provision or rule of law, ……in so far as is possible, subject to the rules of law relating to such interpretation and application, [to] do so in a manner compatible with the State's obligations under the Convention provisions.” That provision applies to the provisions of the Tribunals of Inquiry Acts and to the general or common law regarding the protection of confidential information.
60. A restriction on freedom of expression, if it is to be permitted pursuant to Article 10(2) of the Convention, must, as that provision requires, firstly, be prescribed by law and, secondly, be “necessary in a democratic society…” It must, as the Court of Human Rights has said serve “a pressing social need.” It must also, of course, serve one of the listed interests. One of these is: “preventing the disclosure of information received in confidence.” Kelly J quoted the following passage from the speech of Lord Hope of Craighead in R. v. Shayler  1 A. C. 247 at page 280:
The principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism on the Convention ground that it was applied in a way that is arbitrary because, for example, it is being resorted to in bad faith or in a way that is not proportionate. I derive these principles, which have been mentioned many times in subsequent cases, from The Sunday Times v. The United Kingdom, 2 EHRR 245, para.49 and also from Winterwerp v. The Netherlands  2 EHRR 387, 402 – 403, para.39 and Engel v. The Netherlands (1) 1 E.H.R.R. 647, 669, paras.58 to 59, which were concerned with the principle of legality in the context of Article 5(1); see also A. v. The Scottish Ministers  SLT 1331, 1336 – 1337."
61. It is important to note the first of these requirements, that of legality. The restriction proposed must be based on a provision of the law of the state. Hoffmann L.J. said as much in the passage already cited. It is not necessary that the exception invoked be prescribed by statute. The law of defamation indubitably restricts freedom of expression, but is almost entirely a creature of the common law. But it must be based on known and accessible legal provisions. It must, as Lord Hope says be: “sufficiently precise to enable [an affected individual] to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law.”
62. The principle of proportionality is not expressly mentioned in the Article, but has been developed in the case-law of the Court of Human Rights. It derives from the requirement that the restriction be “necessary in a democratic society.” The Court of Human Rights has consistently held that to satisfy this requirement the restriction sought must serve “a pressing social need.” (see Observer and Guardian v the United Kingdom judgment of 26 November 1991, Series A no. 216 p.30). A further crucially important aspect of that requirement is that the restriction should not be any broader than strictly necessary to serve the interest invoked to justify it. Lord Hope analysed proportionality in a further passage, also quoted by Kelly J, at page 281of the same speech:
63. Our own courts have consistently approved and applied, for instance in Murphy v I.R.T.C., the following dictum of Costello J (as he then was) regarding the principle of proportionality in Heaney v. Ireland  3 I.R. 593 at 607:
2. (b) impair the right as little as possible, and
3. (c) be such that their effects on rights are proportional to the objective ..."
64. The Tribunal, as I have explained, founds its application for the remedies sought exclusively on the law of confidence. Necessarily, it is driven to show that its reliance on the confidentiality of the documents it has circulated justifies the restriction of the defendant’s right of freedom of expression.
65. Finally, under this heading, it is is important to reiterate that what is sought by the Tribunal amounts to a form of prior restraint. The defendant, in reliance on the jurisprudence of the European Court of Human Rights, submits that any such restriction calls for the most careful scrutiny. In Observer and Guardian v United Kingdom, (cited above), the Court held:
66. That passage referred, of course, to the obligation of the European Court itself. However, it is equally plain, for reasons I have given above, that this Court is under a corresponding obligation. Lord Hope spoke of a “close and penetrating examination of the factual justification for the restriction.” (cited above). It must scrutinise the present application for an injunction seeking prior restraint on publication with particular care.
67. The Tribunal accepts that there is no provision in the Tribunals of Inquiry Acts conferring the quality of confidentiality on the Tribunal or on any of its workings. In its written submissions to this Court, it makes reference to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, which provides:
69. In essence, as already explained, the Tribunal bases its claim on the express written notice it gives to persons to whom it communicates its briefs that their circulation is on a strictly confidential basis. Clearly, a matter which I wish to make perfectly clear, none of this concerns the confidentiality of the entirely private proceedings of the Tribunal in its investigative phase, conducted prior to the decision to go on to public hearings and to circulate briefs. That is the ordinary right to confidentiality that any person or body possesses in respect of his, her or its own internal activities. That type of confidentiality has already been dealt with by this Court in JR324. Nobody, whether in or out of the media, has the right to invade or trespass upon the internal workings of any individual or organisation. Problems arise only when information has been released or, as often happens, “leaked.”
70. The law with regard to confidential information is of comparatively modern origin. It was above all developed to regulate the behaviour of private parties and was based on the doctrine of trust. It is independent of contract. A recipient of a confidence must not breach it by communicating the confidential information to third parties. It is, of course, capable of application both to purely personal and to non-commercial information. The case of Prince Albert v Strange (1849) 1 Mac. G. 25 concerned drawings and etchings made by Queen Victoria and Prince Albert of subjects of private and domestic interest to themselves. Certain plates had been confided to a printer for the purpose of printing impressions for private royal use. They had found their way by surreptitious means into the hands of persons wishing to publish a catalogue of them. An injunction was granted based on breach of confidence and trust. The case of Duchess of Argyll v Duke of Argyll  Ch. 302 concerned the publication of marital secrets.
71. The law of confidence has, however, developed more generally in a commercial context. Dismissed or defecting employees have not infrequently purloined their former master’s technical or commercial information. While employees can be restrained in contract without resort to the equitable doctrine, the latter becomes relevant when the information is conveyed to third parties who are on notice of the confidential character of the information. A more specific type of application of the equitable principle has arisen where information has been conveyed during negotiations for the establishment of a joint commercial venture. Many of the cases have arisen from cases of failed negotiations. The recipient of the information is deemed to have received the confidential information on trust solely for the purposes of the intended joint venture. If the negotiations fail, that recipient will, if necessary, be restrained from using it or authorizing use of it without permission, for his own purposes. Kelly J cited a passage from the judgment of Megarry J (as he then was) in Coco v A. N. Clark (Engineers) Ltd.  R.P.C. 41 at 47. It neatly encapsulates the requirements for a successful action based on breach of confidence, at least in a commercial setting. He said:
"In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must 'have the necessary quality of confidence about it'. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it."
72. Megarry J gave further thought to the test for establishing the confidential character of information:
73. In the first case on this topic in this jurisdiction, House of Spring Gardens Ltd. and others v. Point Blank and others  I.R. 611 Costello J reviewed, in great detail, the English decisions commencing with Prince Albert’s case. He was dealing with a case of the failed-joint-venture type. His analysis of the law was approved by this Court. He cited, in particular two passages from English decisions on the circumstances from which an obligation of confidence may be deduced. In Terrapin Ltd. v. Builders' Supply Co. (Hayes) Ltd  R.P.C. 128, Roxburgh stated (as reported on page 1317 of the report of Cranleigh Precision Engineering Ltd. v. Bryant  1 W.L.R. 1317.):
"As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communication, and spring-board it remains even when all the features have been published or can be ascertained by actual inspection by members of the public.”
Costello J cited with approval a very similar dictum of Lord Denning M.R. in Seager v Copydex Ltd.:
1. The information must in fact be confidential or secret: it must, to quote Lord Greene, 'have the necessary quality of confidence about it';
75. A fuller discussion and treatment, taking account of issues not relevant to the present case, may be found in R.G. Toulson and C.M. Phipps, Confidentiality (Thomson Sweet & Maxwell London 2006).
76. An important point is, however, made by the defendant, namely that the confidence is vested in those who have created the information or, as may in this case, have provided it to the Tribunal. The defendant relies on a decision of the Court of Appeal in England in Fraser v Evans  1 Q.B. 349. In that case, a public relations consultant to the Greek Government under a contract expressly imposing on him the duty never to reveal any information about his work made a written report to that government. A version of the report in an English translation was surreptitiously obtained, and came into the hands of journalists from the “Sunday Times,” who proposed to publish an article based on the report. The consultant obtained an interim and an interlocutory injunction. The latter was set aside on appeal. Lord Denning M.R. referred to the cases on the issue of breach of confidence. At page 362, he proceeded as follows:
78. This case is not, of course, of the same character as any of those discussed above. It does not concern relations between private parties. In England, the principles of the law of confidence were extended to the workings of government in Attorney General v Jonathan Cape Ltd  1 Q.B., which concerned an application to prevent the publication of Richard Crossman’s Diaries of a Cabinet Minister. The injunction was refused, due to lapse of time, but the principle was established. Lord Widgery C.J. said at page 769:
80. The House of Lords had occasion to consider all aspects of the application of the doctrine to the publication of Mr Wright’s memoirs in Attorney General v Guardian Newspapers  1 A.C. 109. I propose to cite the dicta regarding the need to show detriment to the public interest. Lord Keith of Kinkel said at page 256:
It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticise government action.
Accordingly, the court will determine the government's claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.”
84. It is of interest to note that the identical passage from the judgment of Mason J was cited with approval by Carroll J in her judgment in Attorney General for England and Wales v Brandon Book Publishers Ltd.  I.R. 597 at 601. That passage was, no doubt, obiter to the decision of the learned judge. She held, quite correctly, that the plaintiff was not in a position to rely upon the public interest of a foreign government before an Irish court. On the other hand, I believe that the dictum of Mason J is deserving of the respect accorded to it by Carroll J, quite independently of the views of the House of Lords. I also believe that, since the Tribunal clearly does not fit within the scope of the traditional type of case concerning breach of confidence between private individuals, it must prove detriment to the public interest if it is to obtain the injunction sought.
Application of Legal Principles to the Facts of this Case
85. As I have already stated, this case concerns an attempt to impose a restriction on the exercise of the right guaranteed by both the Constitution and the Convention to the free expression of convictions and opinions including the free communication of information. Hence, the Tribunal must justify the order it seeks on the basis of an exception recognised by law. That is necessary in the purely constitutional context. It is also necessary for the Tribunal to show that it can justify the order it seeks by reference to one of the interests listed in Article 10(2) of the Convention.
86. In particular, since it seeks an order by way of prior restraint on publication, its application must be subjected to particularly strict scrutiny.
Legal Justification; Prescribed by Law
87. I do not believe that the Tribunal has established any legal justification for its claim of confidentiality. It was expressly accepted at the hearing of the appeal that there is no provision of the Tribunals of Inquiries Acts imposing confidentiality on the documentation circulated by the Tribunal in the form of “briefs.” I have already mentioned that the Tribunal, while referring to section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 does not claim that an order has been made pursuant to that provision or even that the section authorises such an order. It is not unknown for the Oireachtas to enact specific rules ordaining the confidentiality of categories of documents or information under pain of criminal penalty: see for example section 37 of the Commissions of Investigation Act, 2004. Similarly, the media are prohibited on pain of prosecution from publishing the proceedings of the family courts.
88. The Tribunal relies, for this purpose on the statement accompanying the briefs, which says:
89. Unlike the cases concerning communication of confidences, there is no question of trust here. That type of trust or confidence arises from mutual arrangements of some sort, as in the joint venture cases. A person becomes the repository of confidences on an implied basis of trust, firstly in the colloquial sense that the communicator trusts that person and, secondly, in the equitable sense of trust. No such relationship is alleged here. The terms of confidentiality are imposed unilaterally by the Tribunal. They are extremely restrictive. They extend to a person’s spouse or other close intimates or associates whether personal or business. I cannot accept, as appeared to be suggested at the hearing that these are trivial or unimportant matters, which should not be taken seriously, because the Tribunal would never enforce the terms so rigorously. I find myself in agreement with Kelly J, who said that he could “find no authority statutory or otherwise, express or implied which enables the Tribunal to create such far reaching confidentiality, nor in my view should this court enforce it.
90. Furthermore, I do not accept that the Tribunal has power to enforce the confidentiality of documents or information which are, or as may well be the case, may be, confidential to persons who have assisted the Tribunal by making statements or giving information or documents. I would not wish to pronounce definitively on whether the decision of the Court of Appeal in England in Fraser v Evans, cited above, should be followed, without qualification, in this jurisdiction. I would merely make the following observations. The Tribunal, especially in its notice of appeal, claims the right to seek the orders by way of injunction in the interests of protection of the privacy or good name of persons who may be affected by publication. It would represent a substantial departure from the existing law if courts were to make general orders of prior restraint in protection of the good name of individuals, even in applications at the suit of those individuals themselves. In the exceptional cases where that is done, the person moving the court must place before it cogent material to demonstrate that his or her name will be irreparably and seriously damage if an impending publication takes place. The orders sought at present would be made on the presumptive and entirely speculative basis that publication of material circulated by the Tribunal would damage the good name of unnamed and unspecified individuals without any showing whatever on the question of damage. Furthermore, it would be done at the behest, not of the individuals, who would not be required to play any part, but of the Tribunal.
91. I do not, in the preceding passage, intend to disparage the possibility that an individual, aware of impending media publication of information communicated by him or her to the Tribunal, could succeed in obtaining an injunction. The law of defamation has established principles in this area. An individual complaint grounded on the right to privacy might succeed by virtue of the mere fact that the information (for example, an individual’s personal financial information) was private and personal. Unlike other jurisdictions, we have not yet had cases of this sort. There is room for development of the law.
92. At the beginning of the paragraph before the preceding one, I mentioned documents or information which are confidential to persons who have assisted the Tribunal by making statements or giving information or documents. Of course, the orders sought are so broad as to affect potentially information which is not confidential at all and in respect of which the related individuals have sought no undertaking as to its being kept confidential. As was stated at the hearing of the appeal, briefs are circulated to proposed witnesses who are not themselves impugned by any allegation. Most particularly, I regard as strange, not to say bizarre, the notion that the press may be restrained from publishing the fact that the Tribunal has circulated a document, even an entirely innocuous one, which is already in the public domain. If it is already a public document, what is confidential about the fact of its having been circulated by the Tribunal?
93. Finally, the question of whether the doctrine of confidence extends to the information of the government or of public authorities has not yet been the subject of judicial determination in this jurisdiction. For what it is worth, I do not see any reason not to follow the line of case-law which has been adopted in England. This point is more relevant to the question of whether the ground for the restriction is prescribed by law for the purposes of Article 10(2) of the Convention, to which I now turn.
94. All of the reasons I have given amount to compelling reasons demonstrating that the restriction relied upon is not prescribed by law. Clearly, steps taken for “preventing the disclosure of information received in confidence” is one of the exceptions recognised by Article 10(2). However, the Tribunal has, for reasons already mentioned, not demonstrated any legal power to prevent those to whom it communicates its briefs from communicating their contents. In this context, I would add that, in the present state of Irish law, and acknowledging that it may develop, it is not established that governmental or other public or statutory bodies have the right to apply for injunctions preventing the disclosure of confidential information. The Tribunal’s claim depends crucially on whether it has power to impose a requirement of confidentiality on all recipients of its briefs. Since there is no express power, it asks the Court to rule that it exists. In my opinion, the Court does not itself have such power. It cannot confer a power which the law has not conferred.
95. That is sufficient to dispose of the appeal. Nonetheless, I will consider the question of proportionality.
96. I have quoted in full at the beginning of this judgment the form of order sought in these proceedings. That is the form order obtained by the Tribunal on 17th December 2004. Kelly J, in the High Court considered that this form of order could not be said to impair the rights of the defendant as little as possible. He thought it was “entirely disproportionate to the aim being pursued and in excess of any legitimate need.” He added:
(a) before such information and/or the contents of such document has been disclosed at a public hearing of the Plaintiff; or
(b) until the Plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the Defendant (or any person having knowledge of the order herein) is restrained from publicizing the fact that they are part of the documents so circulated.
99. The defendant has referred to the dictum of Lord Nicholls in Attorney-General v Punch Ltd  1 A.C. 1046 at 1055:
101. The Tribunal seeks an order which will restrict freedom of expression. It claims that the press should be restrained from publishing information which it has designated as confidential. It has not been able to identify any legal power which it possesses to designate information released by it in that way. It seeks an order in very wide terms in respect of unspecified information, which would affect the entire media.
102. In my view, the learned trial judge correctly dismissed the Tribunal’s application. I would dismiss the appeal.
JUDGMENT of Mr. Justice Geoghegan delivered the 29th day of March 2007
This is an appeal by the above-named appellants (hereinafter referred to as “the Tribunal”) against an order of the High Court (Kelly J.) refusing certain alternative injunctions against the above-named respondent (hereinafter referred to as “Post Publications”) prohibiting the publication of what the Tribunal considers to be certain confidential documentation and information emanating from it.
The proceedings had been commenced with a plenary summons and contemporaneously an application was made to the High Court for interim injunctions in the form of the alternative injunctions to which I have referred. In fact Finnegan P. who heard the application granted both interim injunctions. The consequential motion seeking interlocutory injunctions in the same form was ultimately adjourned from time to time with the interim injunctions remaining in place. In the meantime, various affidavits were exchanged and ultimately by agreement the hearing of the interlocutory motion was treated as the trial of the action. Kelly J., therefore, determined the issues on foot of affidavits and exhibits and without oral evidence. I will return later to the reasons why the reliefs were refused.
So that there can be a proper understanding of the nature of the issues on this appeal and how they arise, I think it essential that I review in some detail the various affidavits filed.
The first and most important is the affidavit of Marcelle Gribbin, solicitor attached to the Tribunal grounding the original application for the interim injunctions and sworn on the 17th December, 2004. In the introductory part, she explains the general nature of the Tribunal which was established pursuant to respective resolutions passed by Dáil Éireann and Seanad Éireann in 1997 and which had the powers conferred on it by the Tribunals of Inquiry (Evidence) Act, 1921, as amended. The Tribunal was set up to investigate alleged corruption in the planning process. She goes on to give details of the ownership of the Sunday Business Post which is owned by Post Publications and which in turn is a subsidiary of Thomas Crosbie (Holdings) Limited the publisher of the Examiner Newspaper in Cork.
Ms. Gribbin goes on to explain that at a public hearing of the Tribunal on the 14th January, 1998 a protocol in the following terms was announced by the then Sole Member.
(ii) All copies of documents with confidential, commercially sensitive or personal information will be destroyed after the conclusion of the inquiry.
(iii) All documents will be stored in a secure location.
(iv) Confidential information not relevant to the inquiry will not be disclosed to any outside party. The only parties who will have access to such documents will be the Chairman and the legal team to the Tribunal.
(v) Documents, which contain both confidential, personal or commercially sensitive information not relevant to the inquiry, or other information, which is relevant, will have the irrelevant information blanked out.
In paragraph 7 of the affidavit the deponent explains that since it was established the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information which according to her has significantly delayed the Tribunal’s work.
I need to pause here because one of the problems in this case and indeed it is a problem to which the learned High Court judge attached considerable significance is what exactly the Tribunal rightly or wrongly regards as “confidential information”. As I understand the case being made, it is not confined to documents furnished by persons at its investigative stage with an express stipulation as to confidentiality in the event of their not being considered relevant to be produced at the oral hearing. In order to explain what the Tribunal means by the expression for the purposes of this appeal it is necessary to explain the context in which it arises. The Tribunal at its investigative stage gathers in all kinds of documentation and information which it may or may not find necessary to use for the purposes of the oral hearing and, therefore, for the purposes of the findings of the Tribunal. Ideally from the point of view of persons who give the Tribunal such documentation or information it would not be furnished to any outsiders by the Tribunal unless and until it was produced at the oral hearing. Having regard however to re Haughey  IR 217 the Tribunal is under a constitutional obligation to give reasonable advance notice to a third party whose reputation may be put in question by evidence given by a witness at the Tribunal. Accordingly, the Tribunal has devised a system of sending out a brief to each person who might potentially be damaged by evidence at a forthcoming public hearing. The brief contains documentation including for instance another witness’s statement which would, effectively, put that person under notice as to what is going to be said in relation to him or her at the Tribunal. When carrying out this practice the Tribunal makes it clear that the “brief” is confidential. The learned trial judge correctly points out that the “brief” may contain documents with information which is in the public domain at any rate as for instance a Companies Act search. Therefore, he concludes that the injunctions sought (the terms of which I will be setting out later) are much too wide and essentially that is the basis on which the reliefs were refused. While I do not know exactly what was said in the High Court, I am satisfied from the submissions made in this court and also as a matter of inference from the affidavits which I will be fully reviewing that although, undoubtedly, the Tribunal is not confining its confidentiality policy to documents in respect of which it has already promised confidentiality to some person it nevertheless is not intending to extend it to documents that are in the public domain or contain information in the public domain. What it does require however is that it not be disclosed that such public document or document containing such public information is in fact included in the “brief” because of course that is quite a different matter. It may produce context which implicates adversely some person and which if published in advance of an oral hearing could be very damaging. After that diversion, I now intend to return to Ms. Gribbin’s affidavit.
Paragraph 7 reads as follows:
“Since it was established, the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information, which has significantly delayed the Tribunal’s work. The Tribunal believes that such unauthorised disclosures are deliberate, are made by or on behalf of persons who have been or who are likely to be called to give evidence to the Tribunal and are intended to undermine and delay the Tribunal in its work. As a result of one such disclosure the then Sole Member wrote to the editors of a number of newspapers, including the Sunday Business Post, on the 10th December, 1998, expressing his concerns ‘following the continuing publication in the print media of confidential material provided to the Tribunal and circularised by the Tribunal on a strictly confidential basis. It is apparent that past publication of material has taken place, notwithstanding that the publishers were or ought to have been aware of the strictly confidential nature of the documentation which has been published without the authority of the Tribunal.’ The Sole Member also noted in that letter that he had received a number of complaints from individuals whose rights they claimed had been infringed by the unauthorised publication of the Tribunal’s documentation and information. Some of the complainants had indicated that their desire to assist the Tribunal was limited by their fear that confidential information disclosed by them would end up in the newspapers. A letter in similar terms to that sent to the Sunday Business Post was written to the editor of the Examiner.”
Three years before that on the 18th December 1998, the Sole Member had issued a statement to all the principal media outlets. That statement is exhibited in the affidavit. The following is a quotation from paragraph 5 of that document.
“The preparation of a report and the making of recommendations based on the facts established at such public hearing.
This Tribunal is currently carrying out a preliminary investigation in private in relation to certain aspects of its work. The Supreme Court in the recent Haughey case, at page 122 of the transcript, has made clear that if the inquiry worked during the preliminary investigation stage … 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.”
“It is essential to the proper functioning of this phase of the work of this inquiry that, where appropriate, the confidential nature of inquiries being made and the confidential nature of information and documentation coming into possession of the Tribunal be respected. This Tribunal, in common with past tribunals of inquiry, took the step of publishing at a public sitting a protocol detailing the manner in which the Tribunal would treat confidential information and documentation. The Tribunal considers all documentation and information concerning its inquiry work, whether emanating from or received by the Tribunal as confidential information. The Tribunal also considers that any such documentation or information is generally confidential in nature, as well as the fact of having been communicated in circumstances importing an obligation of confidence.”
“… your clients’ article appears to have been based on the document or documents compiled from a series of letters written to a financial institution by the Tribunal. These letters were written by the Tribunal as part of its preliminary investigations in private (which are not yet completed) and were expressed to be so in the body of the letter. Each of the letters was headed ‘strictly private and confidential – to be opened by addressee only’. The information contained in the letters remains confidential to the Tribunal whether contained in the letters themselves or in a document compiled from the letters. This would undoubtedly have been readily apparent to your client. Your clients are undoubtedly aware of the importance of the Tribunal’s preliminary investigations in private. Your clients’ publication constitutes a very serious infringement of the confidentiality of the Tribunal. It could seriously damage the work of the Tribunal. It could cause damage to the reputations of persons whose interest may be affected by the work of the Tribunal. The Sole Member would expect that persons who came into possession of confidential information of the Tribunal would seek to uphold the confidentiality thereof rather than to expand the breach of confidence. The Sole Member requires that in future your clients maintain the confidentiality of the Tribunal. Meanwhile, the Sole Member will take such steps as he considers appropriate to protect the work of the Tribunal.”
Ms. Gribbin then goes on to explain that as on previous occasions a number of complaints were received by the Tribunal about these disclosures. Two passages from one such complaint are set out in the affidavit and are worth quoting. The first read as follows:
“It is very clear that Mr. O’Kelly, the journalist, had access to considerable amount of information which, it would appear can only have emanated originally from the Tribunal.”
“It is a matter of serious concern to my client as it is to members of the Tribunal that confidential information should be made public in this most public of ways. We have had correspondence in relation to issues such as this before and the views expressed at that time apply equally to this situation.”
Essentially, these are the background circumstances in which the Tribunal in its original affidavit looked for injunctions. The two interim injunctions read as follows:
1. An injunction restraining the defendant, its servants or agents (and all other persons having knowledge of the granting of the order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal.
2. An injunction restraining the defendant, its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal.
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information.
As I will be explaining in more detail later on in this judgment, the learned High Court judge was, at all material times, concerned about the scope of each of these injunctions which in the end he held to be too wide having regard to the generally accepted principles of freedom of the press referred to both in the Constitution and the European Convention of Human Rights. The judge did indicate that he might re-list the matter before giving judgment with a view to receiving submissions as to the wording of a possible narrower injunction. In the event, he did not adopt this latter course but refused the relief mainly on the ground that what was sought was too wide. At the hearing of this appeal, counsel for the Tribunal, Mr. Paul O’Higgins, S.C. proposed to this court a third alternative form of injunction with the following wording:
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
I think it helpful at this stage to return to the affidavits. In reply to the affidavit of Marcelle Gribbin which I have already summarised an affidavit on behalf of Post Publications was sworn by Anthony Dinan, mentioned above, on the 21st January, 2004. The substance of the affidavit effectively commences in paragraph 4. In that paragraph, Mr. Dinan refers to the procedures of the Tribunal in relation to sending out briefs to interested parties in advance of a public hearing and he asserts that on many occasions, newspapers and other media organisations have published such alleged confidential information and he exhibits some examples. The last sentence in the paragraph, however, summarises the position taken by Post Publications. It reads:
“I say that it is not accepted that these matters are confidential or that any particular claim of confidentiality may be made in that regard by the Tribunal.”
Ms. Gribbin replied to Mr. Dinan’s affidavit by a further affidavit of her own sworn on the 2nd February, 2005. The opening paragraphs mainly deal with refuting the suggestion that there was delay on the part of the Tribunal in asserting its complaints and pointing out the actions which the Tribunal had taken to prevent leaks including contact with the gardaí etc. Paragraphs 6 and 7 of this affidavit are important and are worth citing in full. They read as follows:
“6. I beg to refer to paragraphs 4, 7 and 13 of the affidavit of Mr. Anthony Dinan where he deals with the issue of confidentiality material. I say that the material forming the basis of the articles exhibited at exhibit A of the affidavit of Anthony Dinan was clearly confidential and had been circulated on a strictly confidential basis. I say that the Tribunal in the course of its private investigative work, which is mandated by statute, seeks statements from persons it is envisaged may be called as witnesses at the public hearing. I say that these statements and the contents of the brief circulated are confidential and remain so until they are opened at the public hearing.
7. It is accepted that documents such as copies of folios, company office searches and the like are not of themselves confidential documents. However, when such documents are circulated with and in the context of other documents including, in many cases, statements made by witnesses who will be called to give evidence to the Tribunal, all of the material in the folder circulated by the Tribunal are designated by the Tribunal to be confidential and are so named. Such documents are opened at a public sitting of the Tribunal. It is noteworthy that at no time that I am aware of has the defendant published details of a company office search without attempting to put the results of that search in context whether in relation to the names of the directors of the company, properties owned by the company, profits earned by the company or otherwise for commercial reasons.”
In paragraph 10 of her second affidavit, Ms. Gribbin, refers back to paragraph 36 of her previous affidavit and reiterates the point that “where documents are leaked in advance the Tribunal is not in a position to protect the constitutional rights of parties affected. In that regard the Tribunal is unable to effectively conduct its inquiries and effectively fulfil its statutory mandate.” She goes on to make the further point that “the leaking of such material acts as a disincentive to parties coming forward with information essential for the work of the Tribunal.” I think it important to quote in full also paragraph 12 of this second affidavit of Ms. Gribbin. The paragraph reads as follows:
“12. I say that the Tribunal has an obligation to conduct the hearings in which allegations are made against numerous parties in a fair and proper manner. In particular I say that the Tribunal is mindful at all times of the constitutional rights of the parties against whom allegations are being made and in particular their right to a good name. I say that the effect of the policy of confidentiality, when properly operated, is that allegations made against certain parties are made within the proper forum of public hearings, that the full context and circumstances surrounding those allegations are made known at one and the same time as those allegations and that the party against whom the allegation is being made is given the proper opportunity to respond to those allegations as soon as practicable. Further I say that the party against whom the allegations are being made is given the opportunity to test these allegations by means of cross-examination within a reasonable time of those allegations being aired in a public forum.”
I turn now to the judgment of Kelly J., the trial judge. Having outlined the relevant evidence, he set out his “conclusions on the evidence”.
2. Such information may consist of documents or statements.
3. When seeking narrative statements the Tribunal expressly represents that they will remain confidential until they come into the public domain at a hearing of the Tribunal. Until that time they will remain confidential.
4. In so far as documentary material is concerned it is subject to the protocol of the 14th January, 1998, which I have already set forth in this judgment.
5. On receipt of all of this information the Tribunal then collates and circulates all relevant documents (including the narrative statements of evidence of persons whom it proposes to call as witnesses at the public hearing at which such evidence will be tendered). This forms what has been referred to as a ‘brief’.
6. The circulation of such a brief is made to a limited number of persons in advance of the public hearing. In general these persons consist of those whose good name or reputation might be adversely affected if evidence of the type outlined in the narrative statements were to be given in public. This procedure is embarked upon with a view to giving such persons notice of the allegations so as to enable them to take whatever steps they believe appropriate in order to vindicate their reputations.
7. At the time when the brief material is circulated to this limited number of persons all of the material contained in it is directed by the Tribunal to be confidential. That is so regardless of the source or nature of the material which is contained in the brief. Thus, the Tribunal asserts that even public documents when contained in such brief are to be treated as confidential. Such confidentiality is to be maintained until the matters in the brief are opened at a public session of the Tribunal.
8. In circulating such a brief the Tribunal has made it clear that it purports to restrain disclosure of the entire contents of the brief.
9. This elaborate procedure is embarked on so as to ensure that the Tribunal conducts itself with constitutional propriety particularly with regard to the rights of third parties.
10. The Tribunal accepts the importance of the work carried out by the defendants in reporting on its hearings and the matters before it. The Tribunal does not accept that the defendants may report on matters arising out of documents which it has determined to be confidential.
11. The Tribunal rulings concerning confidentiality have not been honoured in the past. Many of the failures of the past in this regard have been deliberate and the Tribunal believes done to impede and frustrate its efforts. Nonetheless it has continued to work for the last eight years and this is the first time that an action of this sort has been taken by it.”
I find it necessary to comment on only three of these conclusions i.e. 7, 9 and 10. With regard to No. 7, as I understand it, the Tribunal is not asserting that a document which is in the public domain is in any circumstances a confidential document as such. This was expressly made clear in relation, for instance, to documents such as company searches and Land Registry Folios. The Tribunal, however, is asserting confidentiality pursuant to its own direction as to the fact that such a document has been included in the a particular brief. The Tribunal’s policy in this regard would seem to me to be reasonable, provided that it is legal, a question to be considered later in this judgment. A public document may be perfectly neutral per se as far as any question of injury to a person’s good name is concerned but if transmitted by the Tribunal to some person or persons in a particular context the effect may be quite different.
The learned trial judge has described in conclusion No. 9 the procedure adopted by the Tribunal as an “an elaborate procedure”. I have inferred, I hope correctly, that the word “elaborate” is used here in a somewhat pejorative sense. If so, for the reasons which I have already indicated, I would respectfully disagree with the learned trial judge. I think that provided it does not breach the Constitution or the Convention of Human Rights and provided it can be enforced, the procedure, even if it could be described as “elaborate” is quite sensible and probably necessary for the reasons that the Tribunal asserts to protect the constitutional rights of third parties.
The learned High Court judge is quite correct in conclusion No. 10 in his assertion that the Tribunal takes the view that it can impose confidentiality. But again for the same reasons and subject to the law to be considered later on in this judgment, I can see no objection to this approach.
The learned trial judge, in his judgment, then goes on to criticise (impliedly at least) the Tribunal in making no distinction between information obtained by it from a third party in circumstances where an assurance of confidentiality was given to such a party and material which is not covered by such an assurance. I think that there is a danger of confusion arising here. As I see it, there are two quite distinct aspects of confidentiality which have arisen in the functions of the Tribunal. One is that the Tribunal has been prepared to give undertakings as to confidentiality to persons who furnish it with statements or documents subject of course to the right of the Tribunal to make use of such statements and/or documents at public hearings. The question of what remedy or remedies a person who furnishes such statement or document would have against the Tribunal in the event of the Tribunal breaching such an undertaking does not arise for consideration in this case and indeed in my view, it has almost nothing to do with the case. It is the second aspect of confidentiality in the functioning of the Tribunal that does arise. That is the imposition by the Tribunal itself of an obligation of confidentiality in respect of the brief sent out. The learned trial judge is quite correct, of course, in noting that that purported imposition of confidentiality by the Tribunal extends well beyond documents or statements in respect of which express undertakings have been given by the Tribunal to the original person or persons who furnished them. The object for which the Tribunal purports to impose confidentiality would not be achieved if it confined its imposition to those documents or statements. There would indeed be a further practical problem. If the Tribunal in sending out its brief to interested persons had to sift through the contents and select for confidentiality only those in respect of which an express undertaking had been given, a letter accompanying the documents precisely specifying which document was to be confidential would have to be sent out. This might well prove time consuming and administratively impractical. Ideally, the letter accompanying the brief should expressly state that a document which is of its nature a public document would not of itself be subject to the confidentiality but that confidentiality would be required as to the fact of its conclusion in the brief. I do not think, however, that this omission should be fatal to the Tribunal’s claim in these proceedings as it is quite clear that no issue relating to the simple publishing by the newspaper of a public document arises. Nor indeed has it ever done so.
The learned trial judge, however, appears to take the view that the Tribunal can only impose confidentiality in relation to documents in respect of which the Tribunal itself has given an undertaking as to confidentiality to the provider of them. The judge refers to the background against which the application must be viewed. In this regard he refers to the right to free expression recognised under Article 40.6.1.i of the Constitution and to the later part of the Article which there is specific mention of the liberty of expression of the press. He refers to the Irish Times v. Ireland  1 I.R. 359 and in particular to the judgment of Barrington J. who held that the article protected a dissemination of information as well as the expression of convictions and opinions. I find it difficult to see a relevant connection between the noble views of Barrington J. on the one hand and the sleazy leaking of Tribunal documents on the other.
The learned trial judge then goes on to treat of the right of the freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms but he concedes that both the constitutional rights and the Convention rights are subject to limitations. Article 10 expressly permits restrictions “for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”
The learned High Court judge rightly then points out further that even at common law freedom of speech and the press will be protected and he refers in particular to R. v. Central Independent Television plc Fan. 192. But again I would make the comment that the noble sentiment expressed in that case by Hoffmann L.J. (as he then was) had no relevance to the issues in this case. The same is true, in my view, of other important authorities referred to in the judgment.
Among the quotes to which the learned trial judge has attached significance is the following quotation from the judgment of Hardiman J. in O’Callaghan v. The Tribunal Supreme Court (unreported 9th March 2005).
“Had the Tribunal been less ambitious and sought merely to ensure that documents which it obtained in confidence would have their confidentiality preserved by injunctive relief, there might be something to be said for the courts intervention; but that is not what is sought. Both in the affidavit evidence, the form of order sought and the submissions made, it is quite clear that the Tribunal seeks to go much further and to render confidential everything contained in a brief regardless of nature or source.
Even if one considers the position apart from O’Callaghan’s case could there be any basis to support such a wide claim of confidentiality?”
The next section of the High Court judgment deals with the law of confidentiality as such. What is discussed essentially, and quite correctly, is the equitable rather than the contractual right to confidentiality. The trial judge set out useful principles enunciated by Megarry J. (as he then was) in Coco v. A.N. Clarke (Engineers) Limited  R.P. C. 41. The judge quoted the following passage from the judgment of Megarry J.
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
The learned trial judge with references to the first of these requirements refers to dicta of Lord Greene where he said that “something which is public property and public knowledge” cannot per se provide any foundation for proceedings for breach of confidence. Lord Greene’s reasoning was that there could be “no breach of confidence in revealing to others something which is already common knowledge”.
It is interesting and helpful to apply those principles of Megarry J. and Lord Greene M.R. to the present appeal. I have already made clear that it is not the case of the Tribunal that it can impose confidentiality on a public document per se. The information that the public document is included in the brief should be regarded as confidential in the view of the Tribunal and I think that such information given the context in which the Tribunal asserts that view does “have the necessary quality of confidence about it.” I believe this to be so even if in a few isolated cases it may well be that context is not of great significance. It is reasonable in all the circumstances for the Tribunal to have this policy because normally, the context in which the document is sent out will be relevant and should be kept confidential until the public hearing. The second requirement of Megarry J. is also fulfilled in that the Tribunal itself is imposing confidentiality on the person who is receiving it in advance of the public hearing. That is quite a normal basis for confidentiality and indeed newspapers themselves and media outlets are well accustomed to embargos being placed on information pending their being made public in the right way. The third requirement of Megarry J. is also fulfilled in this case as in my view the leaking of the information with knowledge of its confidentiality was clearly unauthorised. Such leaking was to the detriment of the Tribunal’s orderly conduct of its business.
The learned High Court judge in the view which he has taken has also relied on the following passage from the judgment of Lord Goff of Chieveley in Attorney General v. Guardian Newspaper  1 A.C. 109.
The learned trial judge then refers to the case which in this jurisdiction is the most relevant on the law of confidentiality in general. That is House of Spring Gardens v. Point Blank  I.R. 611. The following passage from the judgment of Costello J. in the High Court which was approved by the Supreme Court reads:
“First, I think that the information must be information the release of which the owner believes will be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e. that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous headings must be reasonable. Fourth, I think that the information must be judged in light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information and trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.”
“Thus, it appears that, whether one is speaking about confidentiality in the context of trade or commerce or of the type dealt with in Attorney General v. Times Newspapers or indeed the present case, confidentiality can only attach to information which is truly confidential. It must have the necessary quality of confidence about it. Thus documents or information in the public domain cannot be regarded as confidential.”
The obligation of confidentiality independently of contract is an equitable obligation as pointed out by Costello J. when he relied on a number of English authorities. It seems to me therefore irrelevant to the question of whether the newspaper was entitled to disseminate such information that it had not itself entered into some contract with the Tribunal as to confidentiality. Once it had notice of the policy of the Tribunal and of the intention that documentation sent out to these persons would be kept confidential pending public hearings it was bound in equity not to flout such confidentiality.
Again on the next page of his unreported judgment the learned trial judge makes clear quite correctly that “the only material which could be capable of protection is that which has the necessary quality of confidence about it.” But as I have already pointed out, his opinion that it did not have that “necessary quality” seems to be based on the fact that the briefs may, from time to time, contain documents which in the ordinary way were in the public domain. As I understand it, the learned High Court judge was not in principle against granting an injunction. What he objected to was the width of the injunction sought. In my opinion, the policy adopted by the Tribunal of sending out a brief and making the contents confidential is a reasonable one. I cannot imagine that the Sunday Business Post would have the slightest interest in publishing a document in the public domain unless it could put it into context. It is that context which the Tribunal quite reasonably wants to be kept private until the public hearing.
When reserving his judgment, the learned trial judge did suggest to the parties that he might want to re-enter the matter for discussion as to a narrower form of injunction than those sought. The course of action which the trial judge took in the event cannot be said to contravene any expressed intention. Nevertheless, I am satisfied that if the learned trial judge had re-entered the matter and indicated to the parties that he was unhappy with the form of injunction suggested, counsel for the Tribunal would have applied their minds to achieving a narrower form of injunction that might have been acceptable to the judge. The judge was in no way obliged to facilitate the parties in that way but I think that there was an element of expectation (I will deliberately not use the word “legitimate”) on the part of counsel for the Tribunal that if the outcome of the action was to be determined on the basis of the form of injunction sought it might seem likely that the judge would have permitted further discussion.
Before reaching my final conclusion, there is one other matter which was aired at the hearing of the appeal and with which I would need to deal. It has been suggested that for the Tribunal to create any element of confidentiality in respect of documents or information would require a special enactment in the Tribunal of Inquiries Acts or elsewhere. The argument then runs that the Tribunal being a creature of statute does not have inherent powers. I cannot accept this argument for a combination of reasons. First of all, the system of delivering an advance brief to somebody who might be adversely affected by evidence likely to emerge at a public hearing arises directly from the Constitution and the constitutional obligations both to adopt fair procedures and to protect the good names of persons. If the Tribunal did not owe that constitutional obligation it would be much simpler and more efficient from its point of view to keep everything secret until the public hearing. A constitutional obligation superimposed in this way and to some extent creating problems for the efficient running of the Tribunal cannot be more than is reasonable in all the circumstances and it, therefore, must necessarily embrace any desirable limitation that does not derogate from that obligation such, as in this case, the imposition of confidentiality. The right to impose such confidentiality is, therefore, merely an element in the carrying out of the constitutional obligation and where it is reasonable it would seem to me that there is an implied right by virtue of the Constitution to impose it. A special section is not therefore necessary. Furthermore and for the same reason the legal basis for the alleged restriction exists for the purposes of Article 10 of the European Convention of Human Rights. The imposed confidentiality is necessary for the “protection of the reputation or the rights of others.”
I am satisfied that the evidence establishes that there has been serious leaking over a number of years by the respondent’s newspaper and other newspapers of documents and information which would have been known to have been intended to be kept confidential pending a public hearing. I am equally satisfied that such leakages undermine the work of the Tribunal and that the Tribunal has a right to seek an injunction to stop it. It is perhaps unfortunate that at the hearing before the High Court the Tribunal did not place before the learned High Court judge alternative more precisely worded and somewhat narrower forms of injunctions but I do not think that on account of this, the court should take the view that no injunction of any kind should be granted. I have carefully considered the alternative slightly more modified form of injunction suggested at the hearing of this appeal by Mr. Paul O’Higgins, S.C.. I have already cited that form of draft injunction but I will cite it again now for clarity.
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing: -
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,