Title:	O'Brien -v- Tribunal of Enquiry into payments to Messrs Charles Haughey & Ors
Neutral Citation:	[2016] IESC 36
Supreme Court Record Number:	38/2011
High Court Record Number:	2010 4120 JR
Date of Delivery:	07/12/2016
Court:	Supreme Court
Composition of Court:	Denham C.J., McKechnie J., Dunne J., Charleton J., O'Malley J.
Judgment by:	O'Malley Iseult J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Denham C.J. Link Dunne J., Charleton J. O'Malley J. Link McKechnie J. Link

THE SUPREME COURT

BETWEEN:

Introduction
1. This case concerns certain procedural rulings made in 2010 by the respondent (“the tribunal”, “the sole member” or “the respondent”), during the course of hearings related to the award of the second GSM licence in the State in 1995. The applicant/appellant (“the appellant”) was the chairman of Esat Digifone when it successfully applied for the licence. He complains that his counsel were not permitted to cross-examine a particular expert witness about that witness’s expressed view that counsel for the tribunal were biased against the company, and also that there was unfair restriction of the cross-examination of the witness by reason of the time allotted. Judicial review proceedings initiated in November 2010 seeking mandatory, injunctive and declaratory relief were unsuccessful in the High Court, with a written judgment being delivered in February 2011.

2. The appellant then lodged an appeal to this Court. As publication of the report of the tribunal on this matter was then imminent he made two applications for priority in the list, both of which were unsuccessful. He did not make any application to the Court for injunctive relief. The report was published in March 2011.

3. The respondent argues in the first instance that the appeal is moot, having regard to the fact of publication; and in the second instance that there was no unfairness involved in the impugned rulings. I agree with the Chief Justice and with McKechnie J. that this case is indeed moot, and if necessary would also agree that in any event the complaints of the appellant are unfounded. However, my own view is that the substance of the appeal should not be considered by the Court.

Background facts
4. The witness in question, Professor Michael Andersen, is a Danish national, resident in Denmark. He was the founder of Andersen Management International (“AMI”), a consultancy firm that was retained to assist the Minister for Communications with the selection process for the licence. Its expertise is in the field of telecommunications.

5. Efforts to secure the professor’s attendance before the tribunal were initially unsuccessful. It seems that while he did cooperate with the tribunal to some extent, he became reluctant to appear before it. This appears to have been for various reasons, some of which were financial and related to the company to which he had sold his interest in AMI, and some of which related to his perception of the working of the tribunal. In 2005 the tribunal ruled that it could proceed with this aspect of its inquiry without his evidence. The appellant sought judicial review in relation to this decision but was not successful, the High Court having accepted that the tribunal had made strenuous efforts to get the professor to appear. These efforts had included exploration of the possibility that his evidence could be taken in a Danish court.

6. In late 2008 the tribunal circulated its provisional findings in relation to the award of the licence. The appellant contacted Professor Andersen, who indicated that he would now be prepared to give public evidence before the tribunal if provided with an indemnity. The appellant agreed to provide such an indemnity, and his solicitors notified the tribunal in April 2010 that Professor Andersen was now prepared to give evidence. A copy of his witness statement was forwarded by those solicitors.

7. The tribunal agreed to sit again to receive his evidence and the professor was then scheduled to appear from Tuesday the 26th October, 2010, until Friday the 5th November, 2010. The tribunal was informed by solicitors acting on his behalf that he would not be in a position to make any further time available until the second half of the following year. The sole member therefore arranged to lengthen the normal sittings over the period of Professor Andersen’s attendance.

8. It may be noted here that for the purposes of the professor’s appearance, the tribunal had instructed a senior counsel who had had no prior contact with him. The choice of counsel was, in itself, the subject of separate, unsuccessful judicial review proceedings on the part of the appellant. Apparently the appeal in relation to that matter is still extant.

9. On the 26th October, 2010, when Professor Andersen was called, senior counsel on behalf of the tribunal took him through his extensive qualifications and experience. He then led him through a version of the witness statement which had been redacted but which made it clear that the professor held firm views about the tribunal.

10. Professor Andersen stated it to be his understanding, arising from his dealings with the tribunal and in particular from the private meetings he had with some of the tribunal’s legal representatives, that “certain members of the Tribunal’s legal team had a strong view that Esat Digifone ought not to have won the second mobile phone licence competition”. He said that he absolutely rejected the justification of such a view. Esat Digifone had won because it submitted the best application, and was the “clear winner”.

11. It was confirmed that his criticisms were directed against the legal team and that he had never met with the sole member.

12. Reference was made to numerous private meetings with members of the legal team between 2001 and 2003. The witness said that it had been suggested to him that the second-placed competitor had a superior application and credentials. He asserted that “one of the most defamatory words” was used in relation to Esat Digifone’s documentation. It was, he said, quite clear to him that “at least part of the Tribunal” was operating “under a pro-Persona and anti-Esat Digifone agenda”. At a meeting in October 2003 “certain members” of the legal team were only interested in pursuing matters that they felt could be interpreted as reflecting negatively on the GSM2 process. Professor Andersen said that it was as if the tribunal had already decided on the final results of its deliberations and counsel were simply intent on securing information that could support that result.

13. He described himself as being most disturbed by a document purporting to be a record of this meeting, which he considered to be “inherently biased” and inaccurate. He felt, in retrospect, that counsel had been attempting during the meeting to get him to endorse the contents of a report written by Dr. Peter Bacon. He subsequently compared Dr. Bacon’s lack of expertise, as he saw it, with the credentials of his own firm, and noted that the tribunal had at a certain stage confirmed that Dr. Bacon was not an expert in the relevant field.

14. This latter observation appears to be a reference to a ruling given by the sole member on the 17th July, 2007, in which it was accepted that Dr. Bacon’s report to the tribunal was not expert evidence within the technical legal meaning of that term, that it was inadmissible and that he would not be called as a witness by the tribunal. Ultimately, Dr. Bacon was called at some stage during 2008 – this, however, was at the request of the appellant. The sole member again made it clear, during cross-examination of Professor Andersen, that he would not consider Dr. Bacon’s report in his deliberations.

15. The witness also said that he found the tribunal’s lawyers to be very hostile to him, and he felt that they did not wish him or his colleagues to give evidence. He referred to notes of other meetings that he said were inaccurate. He said that documents that he had marked “confidential” had been posted on the tribunal’s website. He complained that he had not been reimbursed for any costs or expenses incurred in dealing with the tribunal.

16. Professor Andersen took objection to the tone of correspondence from the tribunal, which he described as “threatening and unpleasant”. In circumstances where he was providing assistance on a voluntary basis, he considered that he was being subjected to a form of “inquisitorial blackmail”. Ultimately he had decided not to provide further assistance. However, he confirmed that he had never told the tribunal that he was unwilling to give evidence. He was now attending in order to correct any factual errors and misunderstandings before the final report was published. He felt that the provisional findings confirmed his impression that the tribunal had ignored his previous communications on these matters.

17. Counsel for the tribunal put it to Professor Andersen that there was no such bias on the part of the tribunal or its barristers but did not cross-examine on the circumstances of any of the alleged instances of bias.

18. On the 27th October, 2010, Professor Andersen’s solicitors confirmed “unequivocally” that he would not, under any circumstances, be available to give evidence beyond the 5th November, 2010.

19. The examination of Professor Andersen by counsel for the tribunal concluded on the evening of the 1st November, 2010. At that stage the sole member said that he was seeking some consensus as to a realistic schedule for cross-examination by counsel for the various parties concerned. Counsel for the appellant said that he would be “about a day”.

20. The rulings complained of by the appellant were made on the 2nd November, 2010. In the first, the sole member referred to a ruling he had made earlier in the year when the tribunal had been asked to call its lawyers to give evidence on a matter unrelated to Professor Andersen’s evidence. The sole member had refused to do so on that occasion, on the basis that for him to hear and adjudicate upon evidence from his own legal team, given their close working relationship, would amount to a breach of the principle nemo iudex in causa sua. He now reiterated that he felt precluded from calling or hearing the evidence of tribunal counsel in relation to the professor’s allegations of bias. In those circumstances he considered that it would be inherently unsafe and improper to hear further evidence relating to those allegations. It was justifiable for counsel for the professor to canvass these matters in the context of the delay in his attendance. However, he did not propose to allow cross-examination on this topic by any other interested party.

21. The appellant says that no notice was given that the sole member was contemplating making such a ruling and his counsel had no opportunity to make submissions on it. They had intended to cross-examine on the allegations of bias.

22. Later on the same day, the sole member made a ruling on how the time for cross-examination of Professor Andersen was to be allocated. The ruling was made in the context of the limited duration of the professor’s appearance. Counsel for the appellant was allotted five hours. Counsel complained about this allocation, describing it as looking “like an exam schedule” and saying that it was contrary to the principles of natural justice to restrict cross-examination “by time-line”. Again, it is complained that the appellant had no notice of this proposed restriction. In the event, counsel cross-examined for six hours after some of the parties made an arrangement to share time. The cross-examination of Professor Andersen finished on the 5th November, 2010.

The High Court proceedings
23. Leave to seek judicial review was granted on the 8th November, 2010. The reliefs sought were orders of certiorari; declarations that the rulings in question amounted to a failure by the respondent to observe and protect the appellant’s rights to fair procedure and to natural and constitutional justice, and a breach of legitimate expectation; an order of mandamus directing the respondent to permit the cross-examination desired by the appellant; and an injunction restraining the respondent from publishing Part 2 of the final report until such cross-examination had been permitted.

24. In the statement of grounds it is claimed that the questions which the appellant wished to ask could have resulted in evidence being given in public before the respondent confirming and detailing the nature of the bias on the part of the respondent’s legal representatives against the appellant and Esat Digifone. It is further claimed that the time restriction prevented cross-examination in relation to the professor’s views of reports prepared by Dr. Peter Bacon for the tribunal. This, it was said, would have been of crucial importance in allowing the tribunal and the public to re-assess the questions put to various civil servants who were involved in the process.

25. Submissions filed in the High Court stressed that it was not being suggested that the bias alleged on the part of the tribunal counsel had “infected” the chairman.

26. In claiming injunctive relief, it was said that in the event that the report was published in these circumstances the reputation and good name of the appellant would be seriously damaged.

27. The trial judge (Hedigan J.) held, by reference to the judgments of Geoghegan J. in Maguire v. Ardagh & Ors. [2002] 1 I.R. 385 and O’Callaghan v. Mahon & Ors. [2006] 2 I.R. 32 that, in the context of a tribunal of inquiry, the right to cross-examine even one’s accusers may be controlled provided that a fair hearing or a fair result is not imperilled. He noted that none of the authorities cited dealt with the right to cross-examine a witness who is not an accuser. He considered that there was such a right even in relation to a friendly witness. This was particularly so when a reputation might be damaged by evidence. The right should weigh in the balance according to the extent to which the reputation might be prejudiced.

28. Looking at the facts of the instant case Hedigan J. observed that Professor Andersen not only did not make accusations against the appellant but had given evidence favourable to the appellant’s position. Without attempting to set out an exhaustive list of the circumstances giving rise to a right to cross-examine, he held that they would have to be clear and compelling in order to constrain the court to intervene in what must ordinarily be within the discretion of the tribunal. No compelling or even satisfactory answer had been given to the question as to what it was hoped to gain by further cross-examination of the professor on the issue of bias on the part of the tribunal lawyers. He had already stated that he thought they were biased and had explained in some detail what he meant. The most that could have been hoped for was that he would repeat what he had already said but perhaps in stronger terms – “that he could perhaps gild the lily”. The right to the speculative opportunity allegedly missed must be of the most limited nature if it existed at all, and had to be balanced against the very real concerns of the sole member. The decision of the respondent was beyond the reach of judicial review, being neither irrational nor unfair.

29. Hedigan J. held that the same considerations applied to the question of the time restriction, but even more strongly in this respect. The presence of Professor Andersen had been obtained only after extraordinary difficulty, his time was limited and his future availability highly doubtful. The balancing of rights involved was, he considered, eminently reasonable and consistent with fair procedures.

Subsequent developments
30. The High Court judgment was delivered on the 1st February, 2011. The appellant’s notice of appeal was filed on the 3rd February, 2011. On the 10th February, 2011, the appellant made an unsuccessful application in the Supreme Court list for a priority hearing. It appears that the Chief Justice requested that the Court should be informed if the respondent was in a position to indicate when the report might be published. In correspondence between the parties in the following days, the respondent’s solicitors stressed the fact that there was no stay or interlocutory order preventing publication of the report. It was their view that the indication from the Chief Justice did not amount to the imposition of any obligation.

31. The appellant’s solicitors disagreed with this view and attended to renew the application for priority shortly thereafter, on the 3rd March, 2011, again unsuccessfully. He did not, however, seek any form of injunctive relief.

32. It is accepted that the Court was unable to accede to the request for priority owing to the backlog of appeals prior to the establishment of the Court of Appeal.

33. The respondent published its report on the matter later in March 2011. The appellant has not sought to challenge any matter contained therein by way of judicial review.

Mootness
34. There is no dispute between the parties as to the relevant authorities and principles applicable to the question of mootness.

The respondent’s submissions

36. It is contended that there is no “live” or “real” or “concrete” dispute between the parties (G. v. Judge Collins & Ors. [2005] 1 I.L.R.M. 1; Brady v. Judge Haughton & Ors. [2006] 1 I.R. 1; Irwin v. Deasy [2010] IESC 35); that “the essential foundation of the action has disappeared” (Lofinmakin (a minor) & Ors. v. Minister for Justice, Equality and Law Reform [2013] IESC 49); and that any decision of the Court “would be of no practical significance to the parties” (G. v. Collins).There is no “reasonable expectation” that the issues raised will occur again (as in O’Brien v. Personal Injuries Assessment Board (No.2) [2007] 1 I.R. 328 or Okunade v. Minister for Justice Equality and Law Reform [2012] IESC 49).

37. It is argued, (with reference to Irwin v. Deasy) that there is no issue of exceptional public importance, and no special reason in the public interest, such that the Court should determine the matter. The complaints of the appellant relate solely to the management and control by the respondent of its own procedures in relation to the evidence of Professor Andersen.

38. The respondent stresses the fact that, notwithstanding the four sets of judicial review proceedings taken by this appellant against the tribunal, involving five appeals to this Court, there was no application for an injunction in this Court and no challenge by him to the report embodying the findings of the respondent.

The appellant’s submissions

40. According to counsel, if the appellant is granted a declaration to the effect that there was a failure to protect his rights he will be entitled to make whatever use of it he can in the protection of his good name. Counsel said it was possible that if successful in this appeal he could move to quash certain aspects of the report, but he was not to be taken as saying that he intended to do so.

41. It is submitted that Professor Andersen was an “absolutely central” witness in “the case against” the appellant.

42. The appellant submits that the doctrine of mootness is not a constitutional doctrine but is “simply a rule of practice which may be relaxed as the occasion appropriately presents itself” (Hogan J. in McDonagh v. Governor of Mountjoy Prison [2015] IECA 71). In any event, it is contended that the decisions sought to be impugned are still a live issue between the parties as the relationship between them has not yet concluded – this appears to be based on the fact that the tribunal has not yet finally concluded all of its work. It has yet to determine costs.

43. The appellant does not accept that there are no broader considerations arising in the case. He says that the status of the tribunal is such as to require that there be public confidence in it, and that the issues involved will affect other public and private inquiries in relation to the application of the right to cross-examine.

44. Reliance is placed on the fact that the appellant tried to advance his appeal as quickly as possible, subject to the constraints on the Supreme Court due to the backlog of appeals. It is submitted that, in those circumstances, any decision that the proceedings were moot would be manifestly unfair having regard to his constitutional right of appeal and the obligation of the courts under the European Convention on Human Rights to deal with cases as expeditiously as possible.

45. It is argued that the fact that the appellant did not seek to judicially review the report of the tribunal is of no relevance because a) there is no appeal from findings of a tribunal, such findings being regarded as “legally sterile”; and b) the role of a court in judicial review proceedings is concerned with the decision-making process and not the merits of the outcome. Further, counsel for the appellant says that if he had instituted separate proceedings after publication of the report, he would have been met by an abuse of process argument based on the fact that the issue had already been litigated and decided against him by Hedigan J. It is also submitted that it is possible for the appellant to be correct on the issue now before this Court, and yet not have been in a position to have the findings of the report quashed.

Discussion
46. Hogan & Morgan in Administrative Law in Ireland (4th ed. Round Hall), identify four advantages from the application of the principles of constitutional justice. The first is that an impartial decision-maker and an opportunity for the person affected to put forward his comments both help to promote an “appropriate” result. The second is that the duty to give reasons will assist the affected person in discerning whether the decision was valid or invalid in substance. The third is described as being “a matter of satisfaction and dignity to the individual” that he should have his say before a decision is taken against him by a government agency, or, in other words, have his “day in court”. Finally, it is said that an open and consistent procedure in which the decision-maker is seen to be impartial is necessary to maintain the confidence of the general public in the institutions of government. In a similar vein de Smith’s Judicial Review (7th ed. Sweet & Maxwell at p. 345) says

“The interest of individuals in participation in decisions by which they could be affected is obvious: they will wish to influence the outcome of the decision. Fairness requires that, in appropriate circumstances, they should have the opportunity of doing so. Among the reasons for this are; procedural fairness may improve the quality of the decision, serve the purpose of protecting human dignity and assist in achieving a sense that justice has both been done and seen to be done; it may promote objectivity and impartiality, or, as just noted, increase the likelihood of an accurate substantive outcome.”

48. It is abundantly clear from the authorities that a tribunal of inquiry will be subject to judicial review in the event of a breach of fair procedures, despite the well-known description of the findings of such tribunals as being “legally sterile” (see Maguire v Ardagh [2002] 1 I.R. 385 and Goodman International v Judge Hamilton (SC) [1992] 2 I.R. 542). It is certainly possible that applications for judicial review made in the course of a tribunal’s process may serve any or all of the purposes described in the texts referred to. The overriding concern in such proceedings is for the reputation of the individual who finds himself or herself in the position of being “accused” of wrongdoing. An invalid step taken in such a process may imperil the quality and appropriateness of the final deliberations of the tribunal, or may in itself cause damage to the reputation or dignity of the individual concerned, or may give rise to a perception that his or her case is not being heard, and may weaken the confidence of the public in the tribunal. There is therefore no bar on the initiation of proceedings, based on apprehension of any of these outcomes, prior to the conclusion of the process.

49. Having regard to the summary above of the professor’s evidence in relation to the tribunal legal team, it could hardly be said that the appellant did not have his “day in court” on this issue, or that the tribunal or the public was deprived of his view. Rather, the case, as argued in the High Court, was based on the assertion that unfair procedures had been adopted which, in effect, might result in findings that could cause unfair damage to the appellant’s reputation. There was no suggestion that the sole member had already caused any such damage by virtue of the rulings themselves or the manner in which they were made. The proceedings were initiated in an effort to prevent apprehended damage. Specifically, it was argued that the prohibited cross-examination on the question of bias could have the effect of “confirming and detailing” the bias of tribunal counsel. The implication of this was that such cross-examination would be helpful in getting across the appellant’s case. The questions that counsel for the appellant did not have time to ask, in relation to Dr. Bacon, could, it was said, have caused the respondent to reassess the questions its counsel had asked of other witnesses.

50. Again, it should be noted that the appellant disavowed any suggestion that the sole member of the tribunal was “infected” by the bias imputed to the tribunal counsel.

51. The appellant was unsuccessful in the High Court. Although the appeal was lodged expeditiously and a priority hearing sought, no application was made in this Court for any form of injunctive relief in relation to the then-anticipated publication of the tribunal report. The publication went ahead in March, 2011.

52. Order 84, rule 18(2) of the Rules of the Superior Courts provides as follows:

(1) An application for a declaration or an injunction may be made by way of an application for judicial review, and on such an application the Court may grant the declaration or injunction claimed if it considers that, having regard to-

(a) the nature of the matters in respect of which relief may be granted by way of an order of mandamus, prohibition, certiorari, or quo warranto,

(b) the nature of the persons and bodies against whom relief may be granted by way of such order, and

(c) all the circumstances of the case,


it would be just and convenient for the declaration or injunction to be granted on an application by way of judicial review.

54. The “practical benefit” concerned does not have to be material – the right to one’s good reputation is undoubtedly an interest that will be protected .Thus, for example, in State (Furey) v. Minister for Justice & anor. [1988] I.L.R.M. 89 this Court held, inter alia, that reputational damage caused by a discharge from the army carried out in breach of fair procedures justified the grant of certiorari even though the applicant’s period of enlistment had long since expired. Similarly, the damage to the applicant’s reputation was a significant consideration in Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1. However, it is necessary to stress that in each of those cases there was evidence that unfair procedures had led to the decisions in question, which in turn had led to the damage to the applicants’ reputations.

55. Had the appellant in the instant case initiated proceedings after, rather than before, the publication of the report he would have had to take on the burden of satisfying a court that there was some linkage to be discerned between the rulings, the outcome of the tribunal process and any alleged reputational damage. In the event, no challenge has been brought to the report of the tribunal. There has, therefore, been no analysis of any relationship between the allegedly unfair rulings and the outcome of the process. It is not possible for this Court to determine whether or not the damage apprehended at the time of the High Court hearing came to pass, or, if it did, whether it was in any way related to the rulings in issue. The purpose of maintaining the proceedings at this stage could not, in these circumstances, be concerned with the quality, appropriateness or impartiality of any findings made.

56. Instead, the appellant at this stage is seeking what amount to free-standing declarations that in the course of its hearings the tribunal subjected him to unfair procedures in making the two impugned rulings. Such declarations would, he says, be available to be used by him to “protect his reputation”. In this context, since the rulings themselves could not be seen as causing reputational damage, that could, it seems to me, mean only that declarations from this Court would be used by him to undermine the status of the report in the absence of any challenge to it.

57. Although arising in a very different context, I consider that certain observations made by Geoghegan J. in The People (DPP) v. McKevitt [2009] 1 I.R. 525 are apposite here. In an appeal against conviction, the issue under discussion was whether or not the prosecution had complied with its disclosure obligations. Giving the judgment of the Supreme Court Geoghegan J. said:

“Counsel for the appellant seemed to be adopting the approach that, if in some way the trial court’s approach to issues relating to disclosure was legally defective, a conviction should be quashed and the appeal allowed. I do not believe that that approach is correct. A trial court at a pre-trial stage, or even when an issue arises during a trial, is concerned with the question of whether there is a real risk of an unfair trial. An appellate court, however, must view the matter somewhat differently. It must consider whether, having regard to the alleged non-disclosure, there was in fact a degree of unfairness which rendered the conviction unsafe using that expression in a general sense. It is, therefore, no longer a question of a risk for the future, rather it is a question of looking at what in fact has happened and assessing whether there has been an unsafe conviction having regard only to an alleged unfairness of trial.”

59. The appellant has argued that the lack of a challenge by him to the report as published should not be considered relevant since, he says, he would have been debarred from taking any such challenge on the basis that the fair procedures argument had already been litigated and determined against him in the High Court. It appears, therefore, that the two issues raised in these proceedings would have been his only cause for complaint.

60. This argument was not referred to in the written submissions and was not fully debated in the appeal, and I therefore do not propose to express any definitive view thereon. I think, however, that it is far from obvious that a plea of abuse of process would have succeeded as against the appellant if he had sought relief - provided, of course, that he could show a link between alleged unfairness of the impugned rulings and contents of the report. In this regard it is helpful to refer to the observations about cause of action estoppel, issue estoppel and the rule in Henderson v. Henderson in Johnson v. Gore Wood & Co. (No.1) [2002] 2 A.C. 1 where Lord Bingham said that the rules should not be applied with “too dogmatic” an approach, when what was required was

“a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

“Rules or principles so described cannot, in their nature, be applied in an automatic or unconsidered fashion. Indeed, it appears to me that sympathetic consideration must be given to the position of a plaintiff or applicant who on the face of it is exercising his right of access to the courts for the determination of his civil rights or liabilities.”

63. My own view would be that the Court should not exercise its discretion to consider the merits of the appeal in circumstances where the impugned rulings were not capable, in themselves, of inflicting any reputational damage; where the appellant has not demonstrated that they led to any such damage and where any remedy that might be granted by this Court would be unrelated to the findings of the tribunal. However, in view of the fact that the majority of the court feels that it is appropriate to examine the substance of the case, I would also agree that in any event neither of the rulings in issue breached the appellant’s right to fair procedures, and that the analysis of Hedigan J. in this regard was correct.