Judgment
Title: | Byrne -v- O'Leary & ors |
Neutral Citation: | [2011] IESC 38 |
Supreme Court Record Number: | 49/07 |
High Court Record Number: | 2000 499 JR |
Date of Delivery: | 10/10/2011 |
Court: | Supreme Court |
Composition of Court: | Hardiman J., Fennelly J., Macken J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Result: | Allow And Set Aside |
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| Judgments by | Link to Judgment | Concurring | Hardiman J. | | Fennelly J., Macken J. | |
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THE SUPREME COURT
Hardiman J. 049/2007
Fennelly J.
Macken J.
Between:
JOHN J. BYRNE
Applicant/Appellant
and
HIS HONOUR JUDGE SEAN O’LEARY, NOREEN MACKEY, PAUL ROWAN and MICHAEL CUSH
(INSPECTORS APPOINTED BY ORDER OF THE HIGH COURT TO ANSBACHER (CAYMAN) LIMITED
Respondents
JUDGMENT of Mr. Justice Hardiman delivered on the 10thday of October, 2011.
This is an appeal from the order of the High Court of the 19th December, 2006, whereby the applicant’s application for judicial review of the order of the respondents as Inspectors appointed under the Companies Act were refused on all grounds. The reasons for this order was set out in the judgment of the High Court (Gilligan J.) delivered on the 7th December, 2006.
Background.
The Inspectors were appointed pursuant to Sections 8 and 17 of the Companies Act, 1990, for the purpose of investigating and reporting to the High Court on the affairs of Ansbacher (Cayman) Ltd., (previously known as Guinness and Mahon Cayman Trust Limited) in relation to four specific matters set out in the judgment of the High Court and “any related matters”. The specific matters included the question of:
“… whether the affairs of the Company were conducted with intent to defraud its creditors or the creditors of any other person or otherwise for a fraudulent or unlawful purpose and if so to identify the statutory provisions involved and the persons in default in each case…”.
The Inspectors.
Under the terms of a High Court Order of the 22nd September, 1999, the late Mr. Justice Declan Costello, Noreen Mackey, Barrister, and Paul Rowan FCA were appointed Inspectors. Subsequently, the Honourable Mr. Justice Costello resigned from this position and, according to the affidavit of the first-named respondent, his Honour Judge O’Leary and Mr. Michael Cush S.C. were appointed additional Inspectors pursuant to an order of the 8th December, 2000.
This staggered process of appointment, and perhaps other factors, led to a position in which a very relevant part of the proceedings of the Inspectors were conducted by two only, and not by all four, of them. Specifically, the applicant, now the appellant, was interviewed by the Inspectors once only. This occurred on the 24th January, 2001. Two only of the Inspectors were present, His Honour Judge O’Leary and Mr. Rowan FCA.
The Order of the 25th May, 2001.
Four months after the interview with the appellant, an order of the High Court (Finnegan J.), was made pursuant to s.7(4) of the Companies Act, 1990. This order appears to have been made ex parte and insofar as relevant it provided as follows:
“Where it has not been found practical for all four inspectors to be present at an interview at which a witness’s evidence has been taken under oath or where that witness has been interviewed prior to the appointment of a particular inspector, the inspector or inspectors who was/were absent from that interview shall not be precluded from further examining that witness or reporting to the Court on that witness subject to the following:
That the veracity of the evidence given by that witness during the said interview is not in dispute or if the veracity of the evidence given by that witness during the said interview is in dispute that the said interview is conducted in full again with the said inspector or inspectors in attendance”.’
Section 7 and 8 are the Sections of the Companies Act, 1990 which permits the Court to “appoint one or more competent Inspectors to investigate the affairs of a company in order to enquire into matters specified by the Court”.
Section 7(4) provides that:
“Where the Court appoints an Inspector under this Section… it may, from time to time, give such directions as it thinks fit, whether to the Inspector or otherwise, with a view to ensuring that the investigation is carried out as quickly and as inexpensively as possible”.
The application under s.7(4) for the Order which was made on the 25th May, 2001, appears to have been made ex parte. On the hearing of this appeal, the affidavit on which the application was grounded was not produced. It is also notable that the application was made some four months after Mr. Byrne had been examined on oath. It was therefore designed retrospectively to rectify any difficulty or weakness arising from the fact that only two of the four Inspectors had participated in that exercise. This was so, even though the last two Inspectors to be appointed (Judge O’Leary and Mr. Cush S.C.) had received their appointments in December, 2000. One can only suppose that this rectificatory order was made on the basis that it would have added to the length and expense of the Inquiry if the evidence of Mr. Byrne had to be reheard. But that might have been a cheaper option in the end. It must also be doubtful if a provision aimed at ensuring speed and cheapness can authorise persons to form a view of and report on oral testimony which they have not heard but which has previously been heard by others. But that question does not immediately arise.
The central point in the case.
Mr. Byrne was only interviewed once. Neither Ms. Mackey nor Mr. Cush S.C. were present at that interview. Accordingly, these two Inspectors could only join in the making of the report to the Court on the basis that “the veracity of the evidence given by that witness during the said interview is not in dispute”.
This interpretation of the Order of the 25th May, 2001, appears to be undisputed. In the Inspectors’ submissions to this Court, at p.4, it is said that:
“It is not disputed that the result of the order of the High Court dated the 25th May, 2001, pursuant to s.7(4) of the Companies Act, 1990 was that where:
(a) A witness’s evidence was being heard by fewer than all four inspectors on the basis that it was not practical for all four inspectors to be present; and
(b) The veracity of that evidence was in dispute;
(c) The interview of that witness would have to be conducted in full again with the attendance of the previously absent inspectors. It is the respondents’ submission that the veracity of the appellants’ evidence at the interview of 24 January, 2001, by the first and third-named respondents was not in dispute.”
Based on the foregoing, the issue between the parties can be very simply expressed. The applicant/appellant, Mr. Byrne, says that “veracity” means objective conformity with fact. The respondents, the Inspectors, say that “veracity” “must relate solely to the subjective internal belief of a person. If that person gives his evidence in accordance with that subjective belief, he is considered to be “truthful”. The Inspectors submissions equate veracity with truthfulness and with “credibility”, quite independent of objective reality. In their view, a witness can be “truthful and reliable” although his evidence is totally false in fact.
The report.
Mr. Byrne’s involvement with the Company to which the Inspectors had been appointed concerned two Trusts which he had established or caused to be established many years previously. These were referred to as the “Prospect Settlement” and the “Tristan Settlement”.
In relation to these Trusts the Inspectors, in summary, found as follows:
(1) That the apparent objective of the Trusts was to transfer ownership of certain assets to a Trust while ensuring that the appellant could retain control of the Trusts.
(2) That the Trusts as operated did not retain the legal separation necessary to achieve the appellants’ objectives.
(3) The funds held by the Trusts in Ansbacher in Ireland were at all times available for any purpose to the appellant, Mr. Byrne, subject only to his duty to retain sufficient deposits to service certain back to back facilities which he had, and with the power to apply those funds as he saw fit.
(4) The control of the Trust funds rested with Mr. Byrne.
(5) The Trusts were a “sham”.
(6) Both Trusts were operated as one in the interests of the appellant, Mr. Byrne.
It is clear that these findings might be fraught with considerable adverse consequences to the applicant and might grievously damage his reputation. Indeed, for that reason he was given an opportunity to comment on them by the respondent. The Inspectors in their report sometimes expressed themselves in very strong language for example, on p.50:
“That an experienced Trust Company such as Guinness Mahon Cayman Trust approved of such an irregular financial transaction and that Guinness and Mahon accepted the security suggests that both of these institutions viewed these Trusts as a legal fiction. It seems evident that both Trusts were operated as one in the interest of Mr. Byrne with the knowledge and approval of Guinness and Mahon and Guinness Mahon Cayman Trust without reference to their legal status”.
The challenge.
The applicant has brought a challenge to these findings on a number of grounds, some very far reaching. However I propose in this judgment to deal firstly with the radical procedural point outlined above: that it is manifest that the veracity of the applicant’s evidence was in dispute so that his evidence, which was given on oath, should have been heard again before all four Inspectors pursuant to the High Court Order of the 25th May, 2001, which order the Inspectors themselves had thought it necessary to procure.
This point appears to be entitled to primacy for a number of reasons. First, its significance was apparently acknowledged by the Inspectors themselves in seeking the High Court Order of the 25th May, 2001. Secondly, it is a freestanding point and does not appear open to the objection taken by the Inspectors to certain other submissions, which will be briefly considered below, viz that the applicant is seeking in effect an appeal from the substantive findings, and not a judicial review.
Thirdly, this first point if upheld would dispose of the entire case, without the need to consider the other points raised, since if any part of Mr. Byrne’s evidence was “in dispute”, the Inspectors had no jurisdiction to report on it without a full re-hearing by all four inspectors. This is so because of the terms of the Order of 25th May, 2001 which the Inspectors themselves sought and obtained.
“Veracity”.
This term is of central importance in the present case by reason of its employment in the wording of the order of the 25th May, 2001. It is in my view a somewhat unfortunate word. It is an abstract term of Latinate origin. Words of this sort naturally lend themselves to vagueness and to obscure shades of meaning. They provide much scope for special pleading and evasion. It might have been easier to say that all four Inspectors would have to hear the evidence if the evidence itself was in dispute. However, the Order is worded as quoted above and we must therefore explore the term actually used, “veracity”.
According to the Merriam-Webster On-Line English Dictionary, the two primary meanings of veracity are:
(1) Conformity to facts; accuracy and
(2) Habitual truthfulness.
Its Latin root is the word verus, meaning “true”. Accordingly, “veracity” means “truth”.
It is clear that in the first of the meanings quoted above the word “veracity” connotes the accuracy of the account given in the sense of its conformity to fact: in the second it expresses a quality of an individual. The dictionary cited gives the phrase “the veracity of the story” as an example of the use of the word in its first meaning and “his veracity and character” as an example of the second. Both of the definitions quoted above seem to be taken word-for-word from those contained in the Concise Oxford English Dictionary, 10th Edition (OUP 2002).
In the larger Oxford English Dictionary, 2nd Edition (OUP 1989), four definitions are offered viz:
“(1) The quality or character in persons of speaking or stating the truth; habitual observance of the truth, truthfulness, veraciousness.
(2) Agreement of statement or report with the actual fact or facts; accordance with truth; correctness, accuracy.
(3) Correspondence with external facts; exactness in the indication of these.
(4) That which is true; the truthful statements; a truth.”
It will be observed that the definitions at references 2, 3 and 4 relate to the objective accuracy of a statement or account while that at reference 1 relates to the subjective truthfulness of the individual giver of that account, who must be a natural person.
Submissions.
These contrasting definitions provide the basis for each side’s contention. The applicant, at paragraph 11 of his submissions argues that:
“[Veracity] is not assessed by reference to whether the statement is made sincerely, or the witness subjectively is genuinely convinced that what he is saying is the truth. Veracity has nothing to do with subjective assessments. ‘Veracity’ is … a concept that is intimately bound to notions of objective fact, credibility and soundness of reasoning. Conversely, it has nothing to do with whether an assertion or conclusion is genuinely or sincerely made”.
Of necessity, the Inspectors take a diametrically opposite view:
“The word ‘veracity’ as used in the s.7(4) Order, i.e. as relating to the testimony of a witness, cannot reasonably be equated with objective ‘accuracy’, regardless of whether the concise Oxford English Dictionary suggests so. When veracity is applied to the verbalisations of an individual, it must relate to the subjective internal belief of a person. If that person gives their expression in accordance with that subjective belief, they are considered to be truthful”.
This is the first and most basic difference between the parties on this fundamental point. The Inspectors also make a second observation. They declare that “it was at all times accepted by the respondents that the appellant was stating what he believed to be true”.
The learned trial judge noted that “the respondents concede that they found the applicant to be a truthful and reliable witness and that they fully accepted his evidence as to the facts”. (Emphasis added)
In one sense, the dispute between the parties can be summed up by asking the following question:
“Is there a distinction between the statement that the Inspectors ‘fully accepted his evidence as to the facts’ and the statement that the ‘Inspectors fully accepted his evidence?”
Examples of the varying approaches to that question will be given below.
The word in its context.
It is important to have regard to the context in which the word “veracity”, as to whose meaning so many subtle distinctions have been drawn, was used in the High Court Order of the 25th May, 2001. It will be remembered that an Inspector who was not present when a witness was interviewed was nonetheless permitted to participate in making the report on the condition that:
“The veracity of the evidence given by that witness during the said interview is not in dispute or if the veracity of the evidence given by that witness during the said interview is in dispute that the said interview is conducted in full again with the said inspector or inspectors in attendance”.
It will be observed that this condition centres on the question of whether the veracity of the evidence is or is not in dispute. It does not appear to me to centre on the veracity (or the habitual truthfulness) of the witness, as opposed to the evidence which he gives. Indeed, in the ordinary and natural use of words, “truth” is a quality of an evidential or other account; “truthfulness” is a quality of an individual person.
This seems to me to me to be a vital distinction. Everyone with experience of oral testimony is aware that the truthfulness of a witness may be quite distinct from and irrelevant to the accuracy of his evidence. Indeed, in A.G. v. Casey [1963] I.R.33, which is the leading Irish case in the very fraught area of visual identification, it is expressly pointed out that evidence of visual identification by truthful witnesses who had reasonable opportunities for observation has nonetheless often been found to be mistaken. In the assessment of oral testimony it is a natural first step to enquire whether the witness is truthful in the sense of wishing to give a true account but one must then go on to enquire whether the truthful witness’s evidence is accurate, or in conformity with fact, since the annals of the law provide numerous examples of where truthful evidence has been factually incorrect because of mistake, as in the case of mistaken identification, or false memory, or the witness having convinced himself that what he wishes to be true is in fact true, or for any of a myriad of other reasons.
If a witness sincerely identifies the wrong man in evidence, can that evidence be described as “true”?
Having regard to the terms of the Order of the 25th May, 2001, I am of the view that what is relevant in this case is the veracity, that is the factual accuracy of the evidence rather than the veracity or truthfulness of the witness. There may, of course, be many cases where no meaningful distinction can be drawn between these two things. But this is not one of those cases because the Inspectors themselves, while insisting that Mr. Byrne is a “truthful and reliable witness” have nevertheless differed with him on certain vital issues. The starkness and simplicity of some of these differences must now be considered.
Nature of the disputed issues.
It is necessary first to give some indication of the nature of the issues about which Mr. Byrne was giving sworn evidence. The two Trusts which the Inspectors were concerned about in their questioning of Mr. Byrne gave rise to certain vital questions. The first was whether or not Mr. Byrne (as opposed to the Trustees) controlled the two Trusts. The second was whether he had the power to enjoy income from either Trust. It is undisputed that Mr. Byrne stated that he did not control the Trusts or either of them and that he did not have power to enjoy the income from either.
This was the view of the learned trial judge who stated, at p.26 of his judgment, that:
“In essence there is no doubt but that the applicant adamantly maintained that he did not control the two Trusts and did not have power to enjoy income from either”.
But the conclusions of the Inspectors on these topics, which as set out in the Inspectors’ written submissions in the present case at pages 2 and 3, included findings:
“- that the funds held by the Trusts in Ansbacher in Ireland had at all times been available for any purpose to [Mr. Byrne] who… had enjoyed the power to apply these funds as he saw fit and no evidence had been received by [the Inspectors] which tended to contradict [the Inspectors] conclusions on control of the funds by [Mr. Byrne] and
- control of the Trust funds remained with [Mr. Byrne] at all times”.
These conclusions plainly contradict the evidence of Mr. Byrne. Despite this, the Inspectors maintain, the veracity of his evidence is not in dispute. This remarkable submission is justified by the Inspectors on the basis that Mr. Byrne, although he did in fact control the Trust and had in fact power to enjoy income from it, was nevertheless truthful in saying that he did not control the Trust and did not have power to enjoy income from it.
The Inspectors maintain that these two absolutely contradictory things are nonetheless both simultaneously true because Mr. Byrne was genuine, and subjectively truthful, in saying that he did not control the Trusts and did not enjoy the power to derive income from it. In that sense, say the Inspectors, his evidence, although absolutely wrong, was truthful. Therefore, say the Inspectors, the “veracity” of his evidence was not in dispute.
It may be significant at this point to recall that the two Inspectors who heard him “found Mr. Byrne to be a truthful and reliable witness”. That is, he was not merely truthful, which is a quality not inconsistent with being wrong, but he was also a reliable witness, which requires that is testimony is such as can be relied on, i.e. true and convincing.
The OED, 2nd Ed. Defines “reliable”, as “trustworthy; safe; sure”. I cannot see how any of these words could, without perversity, be applied to evidence thought to be false in fact. To deem someone’s evidence to be “reliable” and then to find it false borders on irrationality.
This reliable witness said he did not control the Trusts. The Inspectors found that he did. This reliable witness also said that he did not have power to enjoy income from Trusts. But the Inspectors found that he did have this power and did in fact enjoy such income. I simply cannot follow how a witness who made these assertions, which the Inspectors have found to be quite false, can be described as “reliable” but that is how the Inspectors have elected to describe him. Indeed, the nature of their case compels them so to describe him because only by doing this can they maintain that “the veracity of his evidence is not in dispute”.
It may be salutary to recall at this stage the summary of the Inspectors’ findings set out above, wherein it was held that in relation to the funds held by the Trusts in Ansbacher in Ireland, that these funds were “at all times” available “for any purpose” to Mr. Byrne who “enjoyed the power to apply these funds as he saw fit”. A starker contradiction of Mr. Byrne’s evidence can scarcely be imagined.
The High Court decision.
As mentioned above, the learned trial judge fully accepted that Mr. Byrne “adamantly maintained that he did not control the two Trusts and did not have power to enjoy income from either.” But he continued:
“It is clear however that this is an expression of belief by the applicant and the respondents did not doubt the truthfulness of that evidence as believed in by the applicant”. (Emphasis added)
I am not entirely sure what precisely is meant by the passage just quoted. I take the last portion of it to mean that the Inspectors thought that the witness, Mr. Byrne, genuinely believed what he said although it was in fact wrong. But I have considerable difficulty in accepting that a statement by a very experienced businessman that he did not control two specific Trusts and that he did not have power to enjoy income from either Trust was merely “an expression of belief”. To my mind it was a statement of fact made by this very experienced man who had been involved in Trusts as a settlor for upwards of thirty years.
Terms of Mr. Byrne’s evidence.
At the request of the Inspectors, Mr. Byrne made a written and unsworn statement about certain of his affairs mentioned to him by the Inspectors. This was sent to the Inspectors under cover of a letter dated the 4th December, 2000. Speaking of the Cayman Island Trusts and Trust Companies he said:
“Both Trusts, which were established in the Cayman Islands, were founded in such a way that they are controlled by the Trustees of the respective Trusts. I received legal advice that the trustees of both Trusts (which Trusts are governed by Cayman law) are under no obligation to accept any instructions from me in relation to the Trusts… I do not control the Trusts or the Cayman Companies owned by the Trusts. I do not have power to enjoy income from either…
I have never received or enjoyed any income or benefit from either the Tristan settlement or Tristan Securities Limited or from the Prospect settlement or Prospect Holdings. Nor did I have the power to enjoy any such income”. (Emphasis added).
It is perfectly clear that the findings of the Inspectors, quoted above, are in direct conflict with these statements.
At the beginning of the oral examination, which was conducted under oath, Mr. Byrne confirmed (p.7) that he approved the statement himself. The senior Inspector, the late Judge O’Leary, then asked him:
“Q. In other words can I take it that now on oath you are confirming the matters contained in the statement, Exhibit I?
A. Yes, I am.”
Judge O’Leary then commented:
“Alright. Fair enough. So, that saves a lot of time because as I say it is a very helpful statement, Exhibit I.
It seems to me perfectly clear that the central statement in Mr. Byrne’s unsworn document, later expressly confirmed on oath at the request of the Inspectors, that he did not control the Trusts and that he did not have power to enjoy income from them, is not a statement of opinion or belief, but a statement of fact. Similarly the statement that he had never received or enjoyed any income or benefit from the Trusts is not, in the ordinary meaning of the English language, a statement of opinion or belief but a statement of fact. It may be true, or it may be false, but it is a statement of fact. The Inspectors’ central argument, that it is a matter of opinion only, is based on the proposition, quoted above from their written submissions, that “[Mr. Byrne’s] evidence can only have been in relation to the facts as he understood them”.
Carried to its logical conclusion, that approach would mean that there is no such thing as a statement of fact, but merely statements of belief.
A factual statement may be so complex and may so deeply imply or implicate matters of expertise and of judgement as to be a statement of opinion. For example, the statement that “the Trusts were administered in accordance with Cayman Island Law” is such a statement, manifestly dependent on a knowledge of Cayman Island Law, and of means of knowledge of the actual administration of the Trusts, and on the ability to make judgements as to whether the latter is in compliance with the former. On the other hand, a statement such as “I have never been to Canada” requires no technical knowledge, no special sources of information and no exercise of professional or technical judgement. It simply requires the ordinary capacities of a normal human being and is manifestly a statement of fact only. If one supposes this second statement to have been made under oath, and further supposes that it later transpires to be factually untrue and its maker is prosecuted for perjury, it would be in vain, and it would be ludicrous, to claim that simple statement, as to a matter so clearly within the knowledge of its maker, was in fact merely an expression of opinion “… in relation to the facts as he understood them”.
I believe that the statement of an experienced businessman that he did not control particular Trusts with whose history he was plainly intimately familiar; that he did not receive any income or benefit from these Trusts; and that he did not have power to enjoy an income from the Trusts to be manifestly statements in the second category, and not in the first. That is, they are clear statements of fact and (if I may say so) very simple ones.
The simple statements of fact made by Mr. Byrne in this case seem to me so obviously to be simple statements of fact, and so obviously to be directly contradicted by the Inspectors’ findings, that I can scarcely see how the contrary proposition can be argued. The veracity of Mr. Byrne’s evidence, in my opinion, is manifestly in dispute and, in order to comply with the order of the High Court of the 25th May, 2001, that evidence should have been heard again before all four Inspectors.
Another example.
Amongst the transactions considered by the Inspectors was a loan of £212,000 advanced in 1994 to the appellant’s wife on behalf of the Ballymadun Stud. In his evidence before the two relevant Inspectors Mr. Byrne said that his wife was the full owner of Ballymadun Stud and received the money in that capacity. In the report, however, (pages 292 and 293) the Inspectors state that Mr. Byrne’s explanation “is rejected as failing to disclose the full extent of the terms and conditions under which the money was advanced. The Inspectors conclude that Mr. Byrne was the real beneficiary of this transaction”.
This appears as direct a disputing of the veracity of Mr. Byrne’s evidence as could be imagined. Not merely is his account “rejected”, but the conclusion is drawn (over his denial), that he himself was the “real” beneficiary of the transaction. Again, this appears to me to be entirely a factual matter. The question of whether Mr. Byrne was the “real” beneficiary of the transaction is a matter of fact and one leaving little scope for mistake or difference of opinion. The question of whether Mrs. Byrne was a real or only a nominal owner of the Stud in question is equally a matter of fact, and one within Mr. Byrne’s knowledge.
I am driven to the conclusion that the unrealistic and over subtle distinctions whereby Mr. Byrne is proclaimed to be “truthful and reliable” as a witness but his evidence is nonetheless “rejected”, and propositions inconsistent with it accepted by the Inspectors, are wholly insubstantial. The distinction drawn between statements of fact and “expressions of belief” is without substance, having regard in particular to the plainly factual nature of the statements in question. I am quite unable to follow the process whereby the learned trial judge acknowledged that the applicant had “adamantly maintained that he did not control the Trust and did not have any power to enjoy income from either Trust”, but then went on to describe these adamant statements as merely “expressions of belief” by the applicant. I am equally unable to understand the proposition that the Inspectors “did not doubt the truthfulness of that evidence as believed in by the applicant”. I repeat that what is in question here is the veracity of the evidence, not of the applicant as an individual. That is the central criterion because it was set up as such in the Court Order which the Inspectors themselves sought and procurred on 25th May, 2001.
I entirely accept that the Inspectors were entitled to consider evidence other than Mr. Byrne’s evidence and, if they thought fit, to come to a conclusion adverse to him. Indeed this proposition has not been challenged by Mr. Byrne. But it appears to me that if this was to be done, having regard to the nature of Mr. Byrne’s evidence, it would have required a hearing by all four Inspectors. I have no idea why this was not done in the fist place.
Conclusion.
The foregoing findings seem to me sufficient to dispose of this appeal and to entitle the applicant to an order quashing the findings of the Inspectors. It does not appear to me to be necessary to discuss the other grounds on which these and other reliefs were sought, and I make no comment on them or on the grounds on which the applicant is alleged to be disentitled to relief in the form of judicial review. I would only say that I am far from satisfied that the Inspectors’ contention that, in the course of the interview on January, 2001, Mr. Byrne admitted control of the Trusts, is correct. I agree with the learned trial Judge that this portion of the interview was characterised by the applicant and the two Inspectors who were present being at cross purposes. It appears to me that what the applicant was admitting to having control of were certain Irish Companies, some of whose shares were (and some were not), part of the Trust assets. The shares owned by the applicant and his wife outside the Trusts enabled them to have effective control of these Companies, something which was never denied.
Conclusion:
I would quash the report of the Inspectors as being arrived at without jurisdiction.