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Cite as: [2006] IEHC 311

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Judgment Title: O'Callaghan & Ors -v- Judge Alan Mahan & Ors

Neutral Citation: [2006] IEHC 311

High Court Record Number: 2004 324 JR

Date of Delivery: 10 October 2006

Court: High Court

Composition of Court: Smyth J.

Judgment by: Smyth J.

Status of Judgment: Approved

Neutral Citation Number: [2006] IEHC 311



2004 324 JR








The Applicants seek, by way of judicial review, Orders

of -

(a) Prohibition - prohibiting the Respondents from

further investigating or making any finding in relation

to matters affecting the Applicants in the Tribunal of

Inquiry (of which the Respondents are members); and

(b) Certiorari, quashing the decision of the

Respondents whereby the Respondents refused to desist

from further investigating or making findings in

relation to matters affecting the Applicants.

There are two central claims made by the Applicants -

(i) the Applicants contend that the documents and

related facts documents obtained by them pursuant to

court orders, demonstrated that the Applicants have not

been treated fairly by the Tribunal with regard to a

specific issue (Quarryvale I); and, have been denied

fair procedures, in that they have been treated in an

unequal manner compared to a Mr. Gilmartin.

Mr. Gilmartin, the Applicants contend, is a person who

has made very serious allegations against them, and

that this unfairness and denial of fair procedures and

unequal treatment represents a serious infringement of

their rights. These complaints were referred to

throughout the hearing as the "fair

procedures/inequality of treatment" ground.

(ii) The Applicants contend that there is an appearance

of bias and partiality on the part of the Tribunal, and

that the approach by the Tribunal to date gives rise to

a reasonable apprehension or suspicion of bias.

This matter comes before the court as the consequences

of a judgment of the Supreme Court dated 9th March

2005, which determined that the Applicants, up to that

time had been denied the rights they had as a result of

the decision In re Haughey [1971] IR 217. The order

and judgment of the Supreme Court arose out of previous

judicial review proceedings (Record No. JR 324). In

those proceedings the Tribunal had submitted to the

court that there was nothing in the undisclosed

documentation (to the Applicants) material(s) which was

or were inconsistent with a statement of evidence of

23rd May 2001, which was made available to the

Applicants in connection with the module known as

Quarryvale (I).

The contention of the Applicants in these proceedings

is that the documentation which has been disclosed as a

result of these earlier judicial review proceedings did

contain a number of important matters which were very

significantly inconsistent with the statement of

Mr. Gilmartin and that it could not be credibly

contended that such inconsistencies were not "gross or

glaring or significant."

In JR 324 the High Court (O'Neill J. in his judgment of

7th July 2004) noted that in the context of a ruling by

the Tribunal (which was overruled by the courts - hence

the documents upon which the instant case is based) -

"... this court fully accepts the
assurance or guarantee given by the
Tribunal to the effect that the
undisclosed written or recorded
statements of the notice party
[Mr. Gilmartin] do not contain material
which is either glaringly or grossly or
significantly inconsistent with the
statement of the Notice Party of the
25th May 2001 and the oral evidence
given by the Notice Party."

In the events the Applicants contend that if there can

be shown to exist gross or glaring or significant

inconsistencies then such "assurance" given earlier to

the court taken in conjunction with the inconsistencies

themselves now known to exist betoken a disposition by

the Tribunal towards the Applicant. This is not a

ground upon which relief was specifically sought or

granted. In my judgment it is now irrelevant what

assurance(s) (if any) were considered to have been

given to the court and such as did arise had their

origins in counsel's submissions - because in the

events the materials have now been disclosed as a

result of the court orders, and any erroneous

assessment or adjudication as to the inconsistencies or

degrees thereof stand as set aside and can be addressed

by the Applicants in open session at any future hearing

by the Tribunal.

Prior to any consideration of the detailed submissions

made in this case the following general observations

are pertinent: -

(a) Judicial review is not an appeal process (O'Keeffe

-v- An Bord Pleanala [1993] 1 IR 39 at 71).

(b) The Tribunal has been found in error in JR 324; the

policy which was adopted by the Tribunal long predated

the commencement of hearings involving Mr. Gilmartin or

Mr. O'Callaghan: It had been universally applied to

everyone prior to JR 324.

(c) It is inappropriate for the court to examine in

minute detail a large number of issues which relate to

factual events or to carry out a microscopic

investigation in relation to decisions made by the

Tribunal in the course of its deliberations in relation

to particular documents or events: -

"We do no service to the public in
general if we subject every decision of
every administrative Tribunal to minute

(Per O'Flaherty J. in Faulkner -v- Minister for

Industry and Commerce)

(d) Procedural decisions of the Tribunal are reviewable

- and a fortiori post JR 324 must be so.

(e) The individual decisions challenged must be

examined only to the extent necessary to determine

whether such indicates a particular frame of mind by

the Tribunal.

(f) A court can strike down a decision of a Tribunal

which is in error - it does not substitute its own view

for that of the decision maker, even if constitutional

rights are affected -

"It is not a licence for the courts to
stand in the shoes of the decision
(Per Morris P. in Bailey -v- Flood [2000[ IECH 169).

(g) A procedural or policy error on the part of the

Tribunal which constituted a failure or infringed In re

Haughey rights (in according fair procedures and

constitutional justice) does not ipso facto amount to

bias on the part of the Tribunal or any of its members.

In the course of his judgment in JR 324 Hardiman J. in

the context of consistency/inconsistency of what had

been stated by Mr. Gilmartin in private to the Tribunal

(as opposed to what found its way into the public

domain) stated -

"It is known that what he
[Mr. Gilmartin] said in those private
dealings are not wholly consistent with
what he is now saying but no more than
that is known about these admitted
inconsistencies. They may be trivial
or they may be gross.

The primary purpose of a Tribunal of
Inquiry is to conduct a full public
inquiry. The Parliamentary request to
conduct preliminary investigations in
private is for the sole purpose of
determining "whether sufficient
evidence exists in relation to any of
the matters referred to above to

warrant to proceeding to a full public
inquiry in relation to such matters".
This is a threshold issue, requiring
only a bare minimum of evidence.

If the evidence of this module were
limited to that of Mr. Gilmartin (which
for all I know it may be) there would
obviously be sufficient evidence to
warrant to proceeding to a full public
inquiry, unless the Tribunal had for
some reason decided that the whole of
his evidence was incapable of belief."

[p. 41 of typescript of unreported judgment].

I am satisfied on the evidence before me that the

Tribunal has adapted its policies following on the

decision of the Supreme Court in JR 324 and is anxious

that the first named Applicant is provided with the

opportunity for a full and effective cross-examination

and that other parties are given a like opportunity on

the basis that the principles established in JR 324

must be and in fact have been extended and will be

extended to all witnesses appearing before the


Furthermore, the point of departure for adjudication in

the instant case is from the full compliance by the

Tribunal with all the judgments, orders and directions

in JR 324 and arising from the Order For Leave granted

by Abbott J. on 28th November 2005 in the instant case.

The purpose of the orders made in JR 324 was to enable

the Applicants to exercise their In re Haughey rights.

In the course of his judgment in JR 324 Geoghegan J.

said: -

"... it was absolutely essential that
the documents and materials which were
sought for the purpose of carrying out
a worthwhile cross-examination in the
extraordinary circumstances where wild
allegations were flying around the
tribunal against Mr. O'Callaghan and of
which he had no prior notice be duly

When such were duly produced, these proceedings began

with a view, not to give effect to the order sought and

obtained by the Applicant in JR 324 but to prohibit the

Respondent from further investigating or making any

finding in relation to matters affecting the


While the majority of the public hearings dealing with

Quarryvale (I) may be completed, it is clearly the

intention of the Tribunal to resume hearings to

complete outstanding issues. In my judgment it is

incumbent on the Tribunal to recall Mr. Gilmartin so as

to enable the Applicants (now in possession of all the

requisite documentation) to exercise the effective

cross-examination which they claim to have been denied

to them in the past. The Quarryvale (II) module has as

yet not been embarked upon by the Tribunal and in this

regard the Tribunal, in its circulation of documents

has followed the guidance of the courts as set out in

JR 324. Indeed counsel to the Tribunal will have a

role in this regard in order to test the credibility of

the evidence.

The Applicants submitted that the disclosed documents

demonstrated the following: -

(i) That Mr. Gilmartin had on many previous (to

disclosure date) occasions made statements which were

glaringly and significantly inconsistent with the

statements which he had made in evidence.

Even if this submission be correct - and in my judgment

the characterisation by adjectival language of any

inconsistency is irrelevant - if there is any

inconsistency it is the prerogative of cross-examining

counsel to exploit it, and the opportunity to do so now

exists. The fact that in applying pre JR 324 policy,

the application of Tribunal policy which had been

declared to have been incorrect, meant that the

Tribunal was in error and it obligates the Tribunal to

consider afresh upon a reconsideration of all the

evidence which may be adduced on Mr. Gilmartin's being

cross-examined by counsel for the Respondents and any

other appropriate party and any other relevant


(ii) Mr. Gilmartin had made allegations against the

Applicants and in particular Mr. O'Callaghan which were

never disclosed to the Applicants and which were

demonstrably and patently false.

Even if this submission be correct - and the Supreme

Court on the evidence in JR 324, as already noted -

"In the extraordinary circumstances
where wild allegations were flying
around the Tribunal against
Mr. O'Callaghan and of which he had no
prior notice"

directed that the documentation be produced. When they

are now produced and if they contain material that

shows that allegations of Mr. Gilmartin are

demonstrably and patently false, the opportunity sought

(to cross-examine) in JR 324 is now available to the

Applicants to satisfy the Tribunal that Mr. Gilmartin

had made false allegations. It is not for this court

to go behind any of the matters raised or more properly

raised in JR 324 or to seek to anticipate any

determination by the Tribunal of what may occur on the

matter being resumed. The corrective effect of the

decision of the Supreme Court on the formal policy of

the Tribunal and its application, must of necessity

cause the Tribunal to review whatever earlier

preliminary views it may have expressed in any form.

(iii) The documents revealed the circumstances in which

Mr. Gilmartin had obtained immunity from the DPP (the

fact of which had been previously disclosed by the

Tribunal). The documents also demonstrated that the

Tribunal or its counsel more particularly had formed

and expressed a view that Mr. Gilmartin did not require

or need any immunity. This view was expressed at a

comparatively early stage in the preliminary


The Tribunal, if it did form a preliminary view as to

the veracity of what Mr. Gilmartin was saying at the

time or would say in the future, were, in my judgment,

entitled to consider that he would be telling people

the truth. They were in my judgment not unreasonably

entitled to assume that the man did not set out to

deliberately perpetrate falsehoods.

In my judgment the submission in this regard is made on

the basis of an interpretation of the facts disclosed

by the documents. I think it not unreasonable that in

its dealings (in this regard) the Tribunal were

entitled to approach their task with an open mind and

assume that in furnishing information (in whatever

form) Mr. Gilmartin was acting in good faith and

honestly, in coming forward to give evidence in respect

of a public inquiry into matters of serious public


Furthermore, irrespective of any views either the

Tribunal or Mr. Gilmartin or the DPP may have had, the

provisions of the Tribunals of Enquiry (Amendment) Acts

provide that a distinction is to be made and drawn from

evidence tendered before a Tribunal and separate civil

and criminal proceedings. Furthermore, such immunity

from prosecution was subject to Mr. Gilmartin's

co-operating fully in giving truthful evidence. If one

or more counsel for the Tribunal or the Tribunal itself

considered that Mr. Gilmartin did not need immunity,

that is perfectly understandable if he was going to

give truthful evidence and so far as they were aware

from the facts known to them at the time of the event

complained of no disclosure of any wrongdoing had come

to the Tribunal's attention and it was not a decision

that in fact Mr. Gilmartin had done no wrong or Mr.

O'Callaghan had been engaged in any wrongdoing.

The inconsistency complained of in Mr. Gilmartin's oral

evidence on this issue is now open to be explored by

the Respondents. While the granting of immunity may be

open to criticism if it was tendered to persuade him to

give assistance in evidence to the Tribunal, it is not

inherently wrongful. The granting of immunity may or

may not have given Mr. Gilmartin a facility to make

"wild allegations", the immunity (the document was not

produced to the court) was on the basis of giving

truthful evidence.

The evidence in Quarryvale (I) is as yet incomplete and

that in Quarryvale (II) not begun. It would be

premature for the court to inhibit the Tribunal from

discharging the task imposed upon it to hear the

evidence. The decision concerning immunity was that of

the DPP (who is not involved in these proceedings) even

if the request of Mr. Gilmartin (on the advice of his

solicitor) was conveyed to the DPP via the Tribunal.

(iv) The documents revealed that the Tribunal legal

team on at least 36 occasions met with Mr. Gilmartin

mostly without the presence of his solicitor or any

legal representative.

This is not a matter of dispute. The documents reveal

the necessity for many of these meetings, the

initiative for same sometimes originating from the

Tribunal, sometimes from solicitors, sometimes counsel

and sometimes Mr. Gilmartin himself. The nature and

extent of the several topics raised referable directly

or indirectly to Mr. Gilmartin clearly warranted

several interviews or attendances. The court would be

usurping the function of the Tribunal if it seeks to

dictate to it the number of occasions it (in its

opinion or judgment) it should meet any particular

witness. The absence of Mr. Gilmartin's own solicitor

or legal representative is not a circumstance that

should concern the court when Mr. Gilmartin on many

occasions himself bypassed them and communicated

directly with counsel to the Tribunal.

There is nothing in the papers that convinces me that

Mr. Gilmartin did not have a mind and will of his own.

Indeed quite the contrary. Which is one of the reasons

that has led to these proceedings and indeed to JR 324.

(v) The Tribunal assisted Mr. Gilmartin with the

drafting of his affidavit even when he had his own

legal representative.

The documents reveal that Mr. Gilmartin was not always

totally focused on issues raised by him or when raised

with him. In the course of ordinary litigation it is

not unusual for an affidavit to be drafted by a lawyer

and that prior to its finalisation a discussion to lead

to the settlement of its terms, the ultimate

responsibility for which rests with the deponent, a

meeting takes place for that purpose. If the former

practice of the Tribunal of seeking to segregate

Quarryvale (I) from Quarryvale (II) was applied too

rigidly - this has now been overcome by the Tribunal

abiding by the final determination of JR 324.

The purpose of Tribunal counsel was to seek to put

shape or form on the information given to him, not to

advise Mr. Gilmartin concerning his own interests

(although from time to time this may have occurred as

an incidence of a communication). If the inferential

criticism is that Mr. Gilmartin was groomed or coached

in the evidence he was to give to the Tribunal this can

and will be no doubt very readily exploited in the

cross-examination opportunities that now lie open to

the Respondents.

(vi) Mr. Gilmartin had direct access to the Tribunal

legal team and availed of direct contact with the

Tribunal counsel.

This is not a matter of dispute. It is a feature of

the evidence that, (given the range of topics, the

length of time during which Mr. Gilmartin had dealings

with the Tribunal) can hardly have come as a surprise

to anyone with any experience at all of 'long running'

tribunals where the witnesses presented to the Tribunal

in public may have protracted dealings with the

Tribunal staff over a long period of time and can come

to regard such person or persons with whom the witness

may have come to repose confidence or to have a

particular rapport, so that when they have a query or

something further occurs to them they feel free to

establish direct contact with such member of staff.

(vii) The Tribunal was in possession of a very

considerable volume of information emanating from

Mr. Gilmartin of and concerning the Applicants, which

was highly negative and critical of the Applicants.

Whatever about the preconceived degree of criticism in

information emanating from Mr. Gilmartin of the

Applicants, it seems clear that the elements of

irrelevance to the Tribunal's concerns were not put

into the public domain. In my judgment the Tribunal

were entitled to exercise their discretion but not in

the fashion in which they did as is clear from the

results of the decisions in JR 324 and now the extended

range of information is available and this stems from

the court's determination that the enforcement by the

Tribunal of its general policy was incorrect. But that

does not mean that earlier determinations in discretion

were not bona fide.

(viii) The documents revealed that the Tribunal had

divulged to Mr. Gilmartin information provided by

another person.

This concern arises from an averment in paragraph (60)

of Mr. O'Callaghan's affidavit sworn on 25th November

2005 which refers to a memorandum of a telephone

conversation between counsel to the Tribunal and

Mr. Gilmartin. Mr. O'Callaghan avers: -

"I have to say that the disclosure by
Tribunal counsel to Mr. Gilmartin of
information which on the basis of the
Tribunal's rulings was at a private
stage of its inquiry "confidential"
reinforces my concern about the
partisan nature of this Tribunal.
Before the circulation of the brief, I
was not told of any evidence given
privately to the Tribunal by any other
witness. It is not clear to me why
this immediate disclosure of
information obtained from that
solicitor was made by Tribunal counsel
to Mr. Gilmartin."

The Tribunal's response in this regard is set out in a

replying affidavit of Ms. Susan Gilvarry sworn on 23rd

January 2006, as follows: -

"(xi) Alleged disclosure of information
by Tribunal to Mr. Gilmartin.

(128) At paragraph (60) of his
affidavit the Applicant avers that
counsel for the Tribunal disclosed
confidential information to
Mr. Gilmartin contrary to its
confidential policies and that he,
Mr. O'Callaghan was not told of any
information given privately to the
Tribunal by any other witness. I say
that this is incorrect as the general
nature of information given to the
Tribunal in the course of the private
investigative phase would have to be
put to witnesses in order to elicit
further information.

(129) For example I say that in the
course of an interview with the
Tribunal on 11th October 2000
Mr. O'Callaghan was made aware of
information given privately to the
Tribunal by another witness. I say
that he was informed that allegations
were made against him by a named
individual. In the course of that
interview information gathered by the
Tribunal was put to Mr. O'Callaghan by
way of questions and that this would
have been clear to Mr. O'Callaghan at
the time of the conduct of the
interview. I say that such a
communication was made in the course of
the Tribunal's private investigative
phase in order to assist the Tribunal,
with its other independent
investigations, in determining whether
the Tribunal would proceed to public
inquiry on certain matters.

(130) At paragraph (76) of his
affidavit the first named Applicant
further alleges that counsel for the
Tribunal inappropriately disclosed
information gathered in its preliminary
investigative stage to Mr. Gilmartin.
I say that Mr. O'Callaghan is aware
that the alleged inappropriate
disclosure was in fact information
already within Mr. Gilmartin's

knowledge as both Mr. Gilmartin and the
first named Applicant had entered into
an option agreement that contained the
information allegedly imparted by
counsel for the Tribunal to
Mr. Gilmartin."

This is the only heading of the several identified by

the Applicants in their summary as to what was revealed

in the documents which issued consequent upon the court

orders in JR 324, which I have directly related to the

evidence for illustrative purposes. What the

Respondents have sought to do in these proceedings is

in part to seek to re-litigate JR 324 and to raise

further the assertion that in some way (s) the Tribunal

has given preferential treatment in particular as to

confidentiality to Mr. Gilmartin over that accorded to

the Applicants.

In fact the contents of exhibits "SG 8" and "SG 9" give

the lie to such assertion: Fair treatment or equal

treatment does not mean identical treatment. In my

judgment Mr. Gilmartin was not accorded any special or

privileged status by receiving information from him on

a confidential basis. The Supreme Court has already

dealt with information received on such basis, which

now no longer exists in this case.

I deliberately refrain from what I consider to be

unnecessary determinations of each of the several

minute decisions of the Tribunal. The ground of

unfairness is raised on the basis that the Tribunal if

acting in a reasonable way would have acted otherwise

than it did - and if it so acted the unfairness of

which the Respondents complain would not have arisen.

No ground of irrationality of the conduct of the

Tribunal was advanced as a basis for seeking leave to

apply for judicial review. I echo the remarks of

Mummery LJ in Reg -v- East Sussex CC, ex parte Tandy

(C.A.) [1997] 3 WLR 884 at 908 where he said -

"These submissions were made with a
skill that stirs concerns - ... about
the detail of the decision-making
process... but they do not lead to the
conclusion that the decision was
irrational. In examining the
decision-making with an over critical
eye, there is a danger that a
legitimate exercise in review of
legality becomes an impermissible
appeal on the merits and that
imperfections in the process are
equated with irrationality in the

In the course of his judgment in Kiely -v- Minister for

Social Welfare [1977] IR 367 at 281 Henchy J., having

referred to the fact that article 40, s.3. of the

Constitution implies a guarantee to the citizen of

basic fairness of procedures referred to tribunals in

the terms following -

"Tribunals exercising quasi judicial
functions are frequently allowed to act
informally - to receive unsworn
evidence, to act on hearsay, to depart
from the rules of evidence, to ignore
courtroom procedures and the like - but
they may not act in such a way as to
imperil a fair hearing or a fair


In the instant case prior to the determination of JR

324 a regime existed which the courts clearly

considered was inimical to a fair hearing. That

situation was redressed by the courts by the quashing

of the Tribunal's ruling of 22nd March 2004. Indeed

the grounds upon which the Applicants had sought

Mr. Gilmartin's prior statements was "in the interests

of fairness". The documents now revealed and the facts

disclosed by them, now being open to cross-examination

by the Applicants a fair hearing is no longer


The state of imbalance contended for in the plea of

inequality of treatment (if it existed in substance)

has now no meaning. I am satisfied that the

construction sought to be placed on the dealings of the

Tribunal with Mr. Gilmartin do not in any objective

sense amount to an inequality of treatment and are

explained in the replying affidavits of the Respondent,

in particular paragraphs 117 - 122 and 124 - 126 of

Ms. Gilvarry already referred to.

Apparent Bias

The grounds upon which leave was given to proceed to an

application for judicial view were: -

(a) The failure of the Tribunal to put to Mr. Gilmartin

prior inconsistent statements and in particular prior

statements containing a glaring and/or significant

inconsistency gives rise to a reasonable apprehension

of bias.

(b) That in the case of counsel for the Applicants

challenging Mr. Gilmartin's credibility on an issue

concerning a discussion between Mr. Gilmartin and one

Finbar Hanrahan at Buswell's Hotel, one of the members

of the Tribunal commented that he had no doubt that the

first named Applicant knew Mr. Hanrahan quite well. As

a result of what are stated to be false allegations

that have come to light as a result of the disclosure

of documents in their unedited form, the Applicants are

concerned that the Tribunal hold or held a view of the

first named Applicant.

(c) In September 2005 the Tribunal refused the

Applicants' request that it desist from further

investigating or making any finding in relation to the

matters affecting the Applicants. Specifically, the

Tribunal in the course of its letter of 26th September

2005 to the Applicants' solicitors stated that it had

been lead

"To a conclusion that you have elected
to pursue a course of dealing with the
Tribunal which is intended to create
the false impression that you have a
legitimate concern as to the capacity
of the Tribunal to deal fairly and
impartially with the issues involving
your clients."

The Applicants aver that they reasonably understood

this statement to be an expression of a concluded view

of the Tribunal, that the Applicants were not genuine

and that their concern as to the capacity of the

Tribunal to deal fairly or impartially with the issues

against them were not legitimate. The Applicants say

that they were greatly disturbed that in circumstances

where they had to face into a lengthy hearing before

the Tribunal which would ultimately make findings on

allegations against them, the Tribunal had already
reached a conclusion which was so damning in terms of

its bona fides.

(d) The Applicants cannot have and do not have any

faith in the fairness of the process or the procedures

of the Tribunal. They submitted that they are of the

view and entitled to form the view that the Tribunal

cannot fairly adjudicate upon allegations of

impropriety against them. The Applicants aver that

they reasonably suspect bias and partiality on the part

of the Tribunal in the treatment of Mr. Gilmartin on

the one hand and of the Applicants on the other hand.

Notwithstanding that at the leave stage an alternative

ground of 'a real likelihood of such bias or

partiality' (actual bias) was advanced, such was

abandoned and not pursued at the hearing of the


The Applicants submitted that because at some stage in

the investigative stage the Tribunal formed a view

(within each module) that certain inconsistencies were

insubstantial (i.e. not gross or glaring or going to

the heart of the matter or were irrelevant to a

specific module) that the Tribunal could not now

possibly assess Mr. Gilmartin's credibility. Whatever

view the Tribunal may have formed prior to the court

determination in JR 324 must of necessity be reviewed

by the Tribunal.

The decision in JR 324 simply put, is that once any

inconsistency appeared it was the entitlement of the

Applicants to be informed of it and it was not the

prerogative of the Tribunal to determine the

significance or effect of same until after such had

been the subject of cross-examination and/or

submissions thereon.

While there is no evidence of any final or concluded

view by the Tribunal on the verracity of Mr.

Gilmartin's evidence or his credibility, any tentative

views that may have been formed must be recast (in

whole or part) or refined when all the evidence and

submissions are completed.

Notwithstanding the several criticisms of the

Respondents, the state of the evidence before the court

is put very bluntly in paragraph (21) and (37) of Ms.
Gilvarry's affidavit sworn on 23rd January 2006 thus: -

"(21) The members have not formed a
view in respect of any of the matters
that form the subject of the Tribunal's
inquiries and state that they will
remain open minded until such time as
they have heard all evidence in public
before they come to make their findings
of fact based on that evidence and
report to the Oireachtas.

(37) The Tribunal has reiterated
frequently and directs me to say now
that only evidence given at a public
hearing will form the basis of the
findings of the Tribunal. The
Tribunal's procedures at the private
investigative stage are tailored
towards answering the question as to
whether this is a matter that merits
public inquiry, not whether such issues
arising could be conclusively proved at
the end of the public hearings. The
inquiry is constantly evolving. In
this regard, the difference between the
adversarial system and the
inquisitorial system are relevant since
the public hearings of the Tribunal
constitute an inquiry."

Further it is averred that prior to the decision of the

courts in JR 324 -

"(53) Parties were advised that they
could re-visit issues of credibility of
a witness in any later module and that
they could reserve their submissions
until the completion of all the
evidence given by a particular witness
in all modules. The Tribunal
considered that to allow free ranging
examination of witnesses on all matters
upon which they had relevant evidence,
whether in direct or in
cross-examination, would render the
proceedings incomprehensible in view of
the multiplicity of issues involved.
It was not the intention of the
Tribunal that cross-examination would
be confined, but rather, that it would
be conducted in stages in conjunction
with the examination of the individual
issues under scrutiny."

Rulings of 20th November 2002 and 4th February 2003 set

out in exhibit "SG 3" bear out the facts deposed to in

Ms. Gilvarry's affidavit. The fact that the

implementation of the orders arising in JR 324 may

require the Tribunal to adopt a method of proceeding

which may be perceived as less orderly is not a matter

that calls for any view or determination in these


The concern of the Applicants about the impartiality of

the Tribunal was raised in several different ways

during the hearing. It is (inter alia) replied to in

this manner in paragraph (70) of Ms. Gilvarry's

affidavit already referred to -

"In addition this Tribunal wishes to
respond to the first named Applicant's
averment "Again it is hard for me to
accept that a Tribunal which has such
an allegation in its possession from a
witness such as Mr. Gilmartin could be
impartial when it comes to me". I am
instructed by the Tribunal to make
clear that while the Applicants are
understandably aggrieved that
allegations which they allege are false
have been made against them, the
Tribunal reiterates that they have to
date reached no conclusions in respect
of these matters and that they will
make their findings only on the basis
of evidence heard in public and
submissions made and that they have not
and will not have regard to matters
arising in the preliminary
investigative stage that are not
inquired into by them in public."

The Applicants submitted that a Tribunal which

differentiates between those being investigated and the

witnesses making the allegations as contended for by

them, undermines the very appearance of impartiality

which it is required to have and which is fundamental

to any constitutionally fair treatment of the witnesses

before it. This is in effect a plea of bias - but it

is based on an unfairness said to arise from what the

courts have decided in JR 324 was a mistaken view of

the law by the Tribunal as to how the Tribunal should

have acted.

I accept the Applicants' submission that the fact that

the Tribunal avers (at paragraph (20) of Ms. Gilvarry's

affidavit, sworn on 23rd June 2006) that they have no

bias is not ad rem.

It is settled law that the test is objective.

"It is whether a reasonable person in
the circumstances would have a
reasonable apprehension that [a
litigant] would not receive a fair
trial of the issues."
Bula -v- Tara Mines Ltd, Supreme Court
3rd July 2000 per Denham J. at p. 24.

She proceeded at p. 27 to state the test -

"It does not involve the apprehension
of the judge or judges. Nor does it
involve the apprehension of any party.
It is an objective test - it involves
the apprehension of the reasonable

This test has been preferred by both the South African

Courts (President of the Republic of South Africa -v-

African Rugby Football Union [1999] (7) BCLR 723

Constitutional Court) and in the Australian court (Webb

-v- The Queen, 181 CLR 41 [1993]) to that favoured by

the House of Lords in R -v- Gough [1993] AC 646 which

is more stringent. In the course of his decision in

Radio Limerick One Ltd -v- IRTC [1997] 2 ILRM 1 at

p. 21 Keane J. (as he then was) expanded on the matter

thus: -

"Whether the bias alleged is subjective
or objective, it may take a variety of
forms. The decision maker may have a
financial or proprietary interest in
the outcome of the litigation. He or
she may be related by family, social or
business ties to one of the parties.
He or she may have on some other
occasion so prejudged the matters in
dispute as to be incapable of reaching
a detached decision or, at all events a
decision which reasonable people will
regard as free from even the suspicion
of bias.

It has been held in England that in
cases where the Tribunal has a
pecuniary or proprietary interest in
the subject matter of the proceedings,
the law will assume bias on the part of
the Tribunal: See R -v- Gough [1993] AC
646. In all other cases, the test is
whether a reasonable person would have
apprehended that the decision would not
be free from bias.

Some of the instances of bias given
above are simply illustrations of
another celebrated maxim, nemo iudex in
causa sua. However, it has also been
recognised that the application of that
fundamental principle of natural
justice may differ, depending on
whether the body concerned is a court
engaged in the administration of
justice under the Constitution or an

administrative body, not so engaged,
but exercising powers which can be

regarded as quasi judicial in nature.
Even in the case of courts, its strict
application may on occasions be
impossible, as witness the necessity
for judicial determination by the High
Court and this court [the Supreme
Court] of the constitutionality of
provisions affecting the remuneration
of judges: O'Byrne -v- Minister for
Finance [1959] IR 1 and McMenamin -v-
Minister for Finance, Supreme Court
[1994] No. 296, 19th December 1996. A
fortori, there are bound to be
instances in which an administrative
Tribunal charged with quasi judicial
duty may lack the appearance of strict
impartiality expected from a court
administering justice."

Further in Orange Ltd -v- Director of Telecoms (2)

[2001] 4 IR 159 at 186 Keane CJ elaborated further as

follows: -

"While the test for determining whether
a decision must be set aside on the
ground of objective bias has been
stated in different ways from time to
time by the courts in the United
Kingdom, there is... no room for doubt
as to the applicable test in this
country: It is that the decision will
be set aside on the ground of objective
bias where there is a reasonable
apprehension or suspicion that the
decision maker might have been biased,
i.e. where it is found that, although
there was no actual bias, there is an
appearance of bias.

The English decisions have preceded on
the basis that cases on which the
Tribunal has a pecuniary or proprietary
interest in the subject matter of the
proceeding fall into a special and
unique category, in that in such cases
bias is presumed without the need for
any further inquiry as to whether in
such circumstances it would be
reasonable to apprehend bias: It is
immediately and automatically assumed
that such apprehension would be
reasonable... All other cases - such
as, for example, the prejudgment

category under consideration in Dublin
Well Woman Centre [1995] 1 ILRM 408 -
called for the application of the test
as to whether there is a reasonable
apprehension of bias".

Murphy J. in the course of his judgment in Orange at

p. 242 refers with approval to extracts from the

decision in In re JP Lenihan [1943] 138F (2d) 650 of

Frank J. in the terms following: -

"Democracy must, indeed, fail unless
our courts try cases fairly, and there
can be no trial before a judge lacking
in impartiality and disinterestedness.
If, however, 'bias' and 'partiality' be
defined to mean the total absence of
preconceptions in the mind of the
judge, then no one has ever had a fair
trial and no one ever will.

The human mind, even in infancy is no
blank piece of paper. We are born with
predispositions; and the process of
education, formal and informal, creates
attitudes in all men which affect them
in judging situations, attitudes which
precede reasoning in particular
instances and which, therefore, by
definition are pre-judices."

In the instant case some regard must be had to the fact

that the members of the Tribunal are members of the

Judiciary who have taken an oath of office on taking up

their judicial post. However, as has already been

noted in other cases they are not sitting as judges

while acting as members of the Tribunal and accordingly

any reasonable person must see them as functioning as

members of a Tribunal albeit as persons who hold

judicial office though not exercising it in the


In the course of his judgment in the Orange case

Barron J. at p. 228 sought to identify the relevant

test as being -

"... the existence of some factor...
that constitutes a set of circumstances
from which a reasonable observer might
conclude that there was a real
possibility that such factor would
cause the decision maker to seek a
particular decision or which might
inhibit him or her from making his or
her decision impartially and
independently without regard to such

To paraphrase that test and apply it to the

circumstances of the present case, the Applicants in my

judgment would require to establish that a reasonable

observer might conclude that there was a real

possibility that the Tribunal wished to vindicate

Mr. Gilmartin at the expense of the Applicants. In my

judgment there is no "such factor" in the instant case.

The judgment in Orange clearly indicates that a court

was not entitled to infer from the establishment of

errors in an impugned decision or the process leading

to the decision that the decision itself was vitiated

by the existence of bias which could be equated to

objective bias. Furthermore that bias could not be

established from the nature of a decision made, as the

allegation of bias had to be made on foot of

circumstances outside the actual decisions made in the

case itself. The manner in which proceedings were

conducted could not in itself solely create a

reasonable suspicion of bias.

In effect the Applicants' case is that the individual

members of the Tribunal have deliberately and

consciously decided (and effectively therefore

conspired together) to favour and protect Mr. Gilmartin

with a view to making a case against the Applicants.

In my judgment while many of the factors identified by

the Applicants in the course of these proceedings are

matters that may require to be ultimately determined,

there is an adequate explanation at this stage before

the court as to why the matter should proceed to be

dealt with by way of resolution of such differences as

have been highlighted.

In this question of bias a sense of proportion must be

maintained. The viewpoint has to be that of

"A reasonable man and not either over
sensitive or careless of his own
position, would have good grounds for a
fear that he would not get in respect
of the issues involved, from a body...
at independent hearing."

O'Neill -v- Beaumont Hospital Board [1990] ILRM 419 at

439 per Finlay CJ.

In O'Neill`s case the court decided that a clear

distinction had to be made between what had been

incorrectly and mistakenly done and a judgment on the

issues which had been heard.

In the instant case there is an analogy in that while

there was undoubtedly a mistake made by the Tribunal as

is clearly demonstrated in the judgments in JR 324 such

error in judgment was not a determination in any way on

the issues that require to be ultimately resolved when

determined by the Tribunal.

Having regard therefore to the first of the two

complaints made under this general heading of apparent

bias, i.e. the observation made in the course of the

hearing by one of the members of the Tribunal a debate

arose as to whether this was made by way of question,

affirmative statement, a point of view or a request en

passant. In Locobail Ltd -v- Bayfield Properties Lord

Bingham CJ sought to identify a range of factors which

should not be considered as having the effect of a

determination to prejudgment or bias and stated, inter

alia: -

"... the mere fact that a judge,
earlier in the same case or in a
previous case, had commented adversely
on a party or witness or found the
evidence of a party or witness to be
unreliable would not without more found
a sustainable objection. In most cases
we think the answer one way or the
other will be obvious. But in any case
if there is a real ground for doubt
that doubt should be resolved in favour
of recusal. We repeat: Every
application must be decided on the
facts and circumstances of the

individual case. The greater the
passage of time between the event
relied on as showing a danger of bias
and the case in which the objection was
raised the weaker (all things being
equal) the objection will be".

In the course of his judgment in Orange, Murphy J.

quoted the above passage and proceeded as follows: -

"It is unnecessary to express any view
whether all the circumstances listed by
Lord Bingham as being exceptional would
be similarly treated in this
jurisdiction or whether, indeed, a
comparable list here would even be
longer. It is sufficient for the
purposes of this appeal to emphasise
that not all extraneous factors are
fatal to the reality or appearance of
impartiality in the exercise of the
judicial function".

In the instant case there is no adverse comment made by

the member of the Tribunal. It appears to me he is

either trying to establish a fact by way of question or

referring to information known to exist, ( i.e. that

Mr. Gilmartin and Mr. O'Callaghan were known to each

other at a later date) or that there was a want of

focus as to the precise time sequence as to the date of

the meeting in Buswell's Hotel.

There is certainly no concluded view taken by the

member of the Tribunal. In my judgment the cases

advanced by the Applicant in support of apparent bias

in regard to the observation made by the individual

member of the Tribunal in the instant case, i.e. R

(Donoghue) -v- Cork JJ [1910] 2 IR 271, Dineen -v-

Judge Delap [1994] 2 IR 228 bear no relationship to the

complaint made in the instant case.

I accept without hesitation the submission of the

Applicants that if there is any doubt as to whether

there is apparent or objective bias the doubt must

always be given to the Complainant: In my judgment in

this case it would not be contrary to constitutional

justice to proceed with the Tribual inquiries.

Concerning the case based on the correspondence of

September 2005, this is to be seen in the context of

the letter written by the Applicants to the Tribunal

dated 13th September 2005 which, having recited a

number of matters of complaint, concludes as follows: -

"All of the foregoing indicates that
Mr. Gilmartin was a witness who was
from the very beginning entertained and
minded by the Tribunal in a partisan
way and that the statements circulated
as part of the Tribunal brief was
indeed a sanitised version of what had
been said by Mr. Gilmartin to the
Tribunal. Little did our clients know
when they came before the Tribunal that
the Tribunal had in fact set out to
prove a case of fraud against
Mr. O'Callaghan, had formed a view as
to the probity and integrity of
Mr. Gilmartin (i.e. he did not need
immunity), and had in its possession a
catalogue of the most foul and damaging
allegations against Mr. O'Callaghan and
to an extent Mr. Deane that were being
concealed by the Tribunal.

Indeed the view that the Tribunal had
had of Mr. O'Callaghan is not only
evidenced in retrospect by Judge Keys'
comments to which reference has been
made above but by the disparaging

comment made about our clients'
proceedings in the Tribunal's
submission to the Supreme Court.
Rather than appreciating that our
client was seeking to vindicate
constitutional rights (which the
Supreme Court ultimately held had been
infringed by the Tribunal), the
Tribunal disparagingly referred to the
application as being one seeking
material that might potentially provide
some "ammunition for

In the light of the foregoing our
clients cannot have and do not have any
faith in the fairness of the process or
procedures of this Tribunal. They are
firmly of the view (and we have so
advised) that the Tribunal cannot
fairly adjudicate upon allegations of
impropriety against them. In
particular, our clients reasonably
suspect bias and partiality on the part
of this Tribunal in their treatment of
Mr. Gilmartin on the one hand and our
clients on the other. In those
circumstances we are writing to invite
you now to confirm that in the light of
the foregoing the Tribunal will desist
from further investigating or making
any findings in relation to matters
affecting our clients or any of them.
It is with regret that we must inform
you that if we do not receive a
positive response to this invitation
within the next seven days it is our
clients' intention to commence such
proceedings as they may be advised."

That letter was written against a background of the

decision of the courts in JR 324. At that time the

only inquiry (however defectively it may be considered

to have been) related to the module in Quarryvale (I).

To the extent of the evidence known to the courts at

that time Hardiman J. was able to say: -
"If the evidence on this module were
limited to that of Mr. Gilmartin (which

for all I know it may be) there would
obviously be sufficient evidence to
warrant proceeding to a full inquiry,
unless the Tribunal had for some reason
decided that the whole of his evidence
was incapable of belief."

Whether the disclosure of the information given to the

Tribunal in confidence, (when circulated pursuant to

the decision in JR 324 or the principles enunciated in

it, to those who may be concerned) will lead almost

inevitably ('though not necessarily inexorably) through

dissemination, to unfair and unjust damage to the good

name and privacy of others, or simply adds more talk

and paper to a Tribunal at work for well nigh on eight

years, does not fall for determination in these


However, I do not read the judgment of Hardiman, J.

just cited indicating that 'there would be sufficient

evidence to proceed to a full inquiry', that in

determining the issue in JR 324 in favour of the

Plaintiff's constitutional rights, this should lead to

the logical conclusion that the exigencies of the

common good to be addressed by the Tribunal in its

terms of reference as mandated by the Oireachtas are to

be abandoned in whole or part because of the alleged

consequences of the errors rectified by the decision in

JR 324.

The Tribunal has embarked upon a public inquiry in

Quarryvale (I) which was incomplete and the Quarryvale

(II) inquiry had not begun at all. The Tribunal's

letter of 26th September 2005 the subject of criticism

by the Applicants concludes as follows:

"The Modular Approach.
As you are aware, the Tribunal's
decision to conduct its affairs by way
of modules has been endorsed by the
Supreme Court. The Tribunal has
determined that it would deal with the
involvement of your client with
Mr. Gilmartin and the development of
the lands at Quarryvale in two modules,
namely Arl/Q 78 - 90 and Qv 11.

Because the Tribunal split its
inquiries in the manner set out above,
it became necessary to circulate as
part of Arl/Q 87 - 90 module only a
portion of the statement of Mr. Tom
Gilmartin. Indeed your client
Mr. O'Callaghan's statement of 3rd May
2000 was similarly redacted. Your
letter does not appear to criticise the
Tribunal for withholding the balance of
Mr. Gilmartin's statement as contained
in the redacted portion of his

Your client is already in possession of
the brief in both modules and an amount
of evidence has been heard in
connection with the first module
dealing with matters up to December
1990 approximately. As you are aware,
it is now the intention of the Tribunal
to resume hearing the evidence on
matters left over from the first module
and then proceed to hear evidence from
approximately 85 witnesses, including
your clients, in relation to the second
module. In addition, the Tribunal is
presently engaged in an exercise to
ensure compliance with the decision of
the High Court and Supreme Court in
O'Callaghan -v- Mahon and Ors. You
have already received the prior
statements of Mr. Gilmartin on foot of
this decision.

The Tribunal again reaffirms its stated
position that it will not form any
ultimate conclusion until all of the
evidence has been heard. Insofar as
Mr. Gilmartin is concerned, both you

and your clients will be aware that he
had not finished giving evidence and
your clients will be again afforded an
opportunity, as was assured to you by
the Tribunal, when he returns to the
witness stand to be cross-examined

The allegations of Mr. Gilmartin in
respect of which complaint is raised in
your letter were not the intended
subject matter of Arl/Q 87 - 90 module
and were aired by him, in the main, in
response to vigorous cross-examination
on behalf of parties who were
effectively endeavouring to undermine
his credibility. These responses went
beyond the issues which were being
dealt with in the module. They were
made without prior knowledge of the
Tribunal and were not allowed to be
elaborated upon by the Tribunal because
they were not relevant to the
Tribunal's inquiry into the subject
matter of the module then at hearing.
It is incorrect to state that no
restraint was imposed upon
Mr. Gilmartin.

The Tribunal is led to the conclusion
that you have elected to pursue a
course of dealing with the Tribunal
which is intended to create the false
impression that you have a legitimate
concern as to the capacity of the
Tribunal to deal fairly and impartially
with the issues involving your clients.
Notwithstanding this belief on the part
of the Tribunal, your clients may rest
assured that the members of the
Tribunal will continue to act fairly
and impartially in carrying out the
tasks given to them by the Oireachtas
and that they will reach such
conclusion as may be open to them only
on the basis of the evidence heard at
public sessions with which all affected
parties will have been afforded the
opportunity of exercising their
constitutional rights.

Given your clients' stated concern
about their reputations, the Tribunal
is anxious to resume the hearings into
the Quarryvale rezonings so that your
clients will have the earliest possible
opportunity to dispel the alleged
damage to their reputation."

In my judgment, notwithstanding the verbiage used in

the letter, the Tribunal could reasonably have come to

the view that the Applicants' solicitor's letter of

13th September indicated that they or their clients had

formed the view that the Tribunal had prejudged such

actions as the Tribunal might take in the event of the

matter proceeding and had attributed improper motives

to the Tribunal when, so far as the Tribunal was aware,

there was no evidence to support such conclusions. "In

law context is all", and it seems to me that the

expression in the letter of 13th September that the

documents revealed that the Tribunal had in fact set

out to prove fraud against Mr. O'Callaghan is not borne

out by the evidence placed before the court. However,

it is with such emotive baggage that the correspondence

must be reviewed.

If there was pardonable disbelief by the Tribunal in

the position being adopted by the Applicants'

solicitors in their letter of 13th September 2005 such

is not surprising given that they very properly had

vigorously prosecuted JR 324 to obtain all the

information necessary to present their clients' case in

full to the Tribunal. Having received it, they then

would appear to have formed a view concerning it

without the matter being fully ventilated before the

Tribunal. In short, the Tribunal's response was one in

the nature of a retort to a pre-emptive strike made by

the Applicants' solicitors.

Concentrating on the matter of substance it seems to me

that worrying over the misuse or infelicitous use of

language does not amount to apparent bias.

Furthermore, such view as the Tribunal might have

entertained at that stage was expressly stated to be

capable of being set at rest or set at naught by the

tone of the letter as a totality. Furthermore, the

letter in no way represents any form of decision or the

exercise of a judgment on the merits of the contested

questions of fact outstanding between Mr. O'Callaghan

and Mr. Gilmartin.

I do not consider the letter is expressed in such

extreme and unbalanced terms as to throw doubt on the

ability of the Tribunal to try the issue that it is

entrusted to try with an 'objective judicial mind'.

Quarryvale (II)

In the course of the submissions made to the court in

this case it was indicated and is clear from the

documents that there are some 85 witnesses interested

in this module which commenced on Tuesday, 29th

November 2005. The opening statement of counsel

included an outline of the evidence intended to be

adduced, including an outline of allegations against

witnesses to the module. It seems to me reasonable

that these witnesses will want to address matters that

have been included in the opening statement.

The Tribunal must of necessity in the light of the

decision in JR 324 have a legitimate interest in

ensuring that those interested parties, which includes

the Applicants, will have an opportunity to exercise

any rights to which affected persons may be entitled

under In re Haughey in defending their good name and

reputation and, furthermore, such persons are entitled

to the right to cross-examination under the decision of

In re Haughey.

In the light of the foregoing rights of third parties

such persons are entitled to have such allegations as

were made against them dealt with as soon as is

possible. It is apparent from the transcript of the

public hearing on day 604 at the close of the opening

statement on Quarryvale (II) that at least one party

have been made has expressly indicated that he wishes

to respond to those allegations without delay.

Councilor Richard Green made representations to the

Tribunal indicating that he wished to have an

opportunity as soon as is possible to have the right to

put his side of the story and to cross-examine one

Mr. Dunlop who had made serious allegations against

him. In the course of his judgment in McDonald -v-

Brady [2001] 3 IR 589 Keane CJ considered the issue and

expressed himself thus: -

"It is not in dispute that the inquiry
which has been conducted is in the
public interest... While the extent to
which the hearings would be delayed by
the continuance of the present stay
until the final determination of the
proceedings in the High Court - or, it
may be, on an appeal to this court - is
necessarily uncertain, in the nature of
things it is bound to be significant."

The Chief Justice then proceeded to discuss the

consequences of a stay for other parties and stated: -

"Nor can one disregard the fact that
the effect of granting the stay, given
the relatively small number of
witnesses still to be examined, will be
to defer, rather than expedite, the
cross-examination by the Applicant of
any of these witnesses. It will also
have the undesirable consequence of
deferring the cross-examination by
other interested parties of any of
these witnesses."

The Doctrine of Necessity

This is stated conveniently in Judicial Review of

Administrative Action (Comparative Analysis) by Delaney

(2001) - Roundhall Sweet and Maxwell) as follows: -

"Individuals who might in normal
circumstances be disqualified from
acting on grounds of bias may be found
to be competent to act on grounds of
necessity when it is not otherwise
possible to constitute a properly
qualified body to make a decision.
This will often be the case in relation
to judicial proceedings and judges have
been called upon to act in
circumstances where they would normally
have been disqualified so as to ensure

that the machinery of justice does not
break down. The principle may be
applied, e.g. where all members of a
decision-making body would be
disqualified because of their interest
in proceedings or where a quorum of
impartial members cannot be put
together. However, where it is
possible to constitute an alternative
Tribunal to exercise the relevant
power, the doctrine of necessity cannot
be invoked.

The effect of the doctrine is
summarised by Brennan J. in the
Australian decision of Builders
Registration Board of Queensland -v-
Rauber [1983] 47 ALR 55, 71 as follows:
'The Common Law allows an exception as
to the disqualifying effect of bias
whether arising from an earlier
prejudgment of a material question,
from interest, or from some other cause
where the exception is necessary to
allow the functioning of the sole
Tribunal with power to act'."

While I am satisfied that the case on bias has not been

made out, nonetheless I am of opinion that even if such

were, that the doctrine of necessity applies. It is

unreal to suggest that the Oireachtas might consider

appointing a new Tribunal to embark upon Quarryvale (I)

which has already been substantially part heard and

Quarryvale (II) opened before a Tribunal and in respect

of which third parties have made certain

representations. In O'Neill -v- Beaumont Hospital

[1990] ILRM 419 at 440 Finlay CJ, addressing a

submission made on behalf of the appellant that

statements made at a meeting coupled with the reference

to the Chairman's remarks at a meeting (that he was

glad of the unanimous recommendation of the decision of

the Chief Executive Officer) meant that the entire

board was tainted by the fault or prejudgment.

Finlay CJ. rejected such. He did not think there was a

reasonable inference to be taken from the minutes in

that they failed to distinguish between a ratification

of what incorrectly and mistakenly had been done and a

judgment on the issues which had been heard. He then

proceeded as follows: -

"I think that in relation to this last
point regard must be had to the
doctrine of necessity. It is not a
dominant doctrine, it could never
defeat a real fear and a real
reasonable fear of bias or injustice
but it is a consideration in relation
to the question of the entire board
being prohibited, for if that were to
be done there can be no other machinery
by which something which is of great
importance both to the board of the
hospital and to the plaintiff and, I
might add, to the public who will
attend the hospital, namely the
continuance or non continuance of the
Plaintiff's services in the hospital,
can be determined in accordance with
the terms of the probationary

In the instant case the Applicants submitted that if a

case for bias was made out, as they contended it should

be, that it would be open to the Oireachtas to appoint

a new Tribunal to consider and deal afresh with the

matters in Quarryvale (I) and Quarryvale (II). In my

judgment there is an air of unreality about this

approach. If there had been a firm concluded decision

of a nature such as could ground a successful

application for the case in objective bias then clearly

the doctrine of necessity would not avail. However, in

the instant case, while I do not think it necessary to

rely on it I think it is something the Respondents

properly and fairly advanced in their Defence.

In my judgment the application for judicial review



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