The Court, by its unanimous judgment of 31st July 2009, delivered by Fennelly J, allowed the appeal of the appellants against the order of the High Court made on the 9th November 2007 requiring them to comply with an order of the Tribunal of Inquiry into Certain Planning Matters and Payments dated 25th September 2006 and to appear before the Tribunal and answer questions.
The Tribunal was inquiring into the source of a leaked letter, which had been addressed by the Tribunal to a potential witness in the course of the confidential phase of its inquiry. The contents had been published in the Irish Times as part of an article written by the first-named appellant. A copy of that letter had been sent to him anonymously. The second-named appellant is the editor of the Irish Times.
As recorded in the judgment of this Court the first-named appellant informed the Tribunal that he could not produce the letter. Following receipt of the order of the Tribunal of 25th September 2006 and a meeting with legal advisors, the second-named appellant, in order to protect journalistic sources, had requested that he destroy any document in his possession concerning the newspaper story and that he had done so. He agreed with this decision. The second-named appellant destroyed copies of the documents in her own possession.
This deliberate act of destruction of evidence, for reasons explained in the judgment of this Court, deprived the Tribunal of the possibility of conducting any meaningful inquiry into the source of the leaked letter. The High Court described this as "an outstanding and a flagrant disregard of the rule of law." It said that:
"In so doing the defendants cast themselves as the adjudicators of the proper balance to be struck between the rights and interests of all concerned.”
The High Court added:
"It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy."
The judgment of this Court said the appellants had “cast themselves as the adjudicators of the proper balance to be struck between the rights and interests concerned.” It said:
“The unilateral decision of a journalist to destroy evidence with intent to deprive the courts of jurisdiction is, as the High Court has held, designed to subvert the rule of law. The Courts cannot shirk their duty to penalise journalists who refuse to answer questions legitimately and lawfully put to them.”
The appellants succeeded in their appeal because the Court held that the High Court had not correctly struck the balance between the journalistic privilege derived from the exercise of the right to freedom of expression of the appellants and the public interest of the Tribunal in tracing the source of the leak.
The appellants, having succeeded in their appeal seek the costs of the appeal and of the hearing in the High Court. Counsel relies on Order 99 of the Rules of the Superior Courts, particularly the principle that costs should “unless otherwise ordered, follow the event.” (Order 99, rule 1(3)). Counsel for the Tribunal counters by also asking for costs in both courts. He relies especially on the acts of the appellants in destroying the document which was or would have been crucial to the Tribunal’s inquiry.
This Court (per Fennelly J) dealt with the matter as follows:
“I do not disagree with the language used by the High Court in reference to the deliberate destruction by the appellants of the very documents that were at the core of the enquiry. Nonetheless, I have to accept that the issue is not whether that act was a wrongful one and deserving of the opprobrium applied to it by the High Court, but the narrower question of whether, in circumstances where the documents no longer exist, there is a logical or causal link between that act and the order made.”
Thus, it was the very act of destroying the document that decisively shifted the balance and deprived the Tribunal of any effective power to conduct an inquiry and, by extension, deprived the courts of any power to give effect to any order of the Tribunal. This act was calculated and deliberate and was performed with that clear purpose in mind. That “reprehensible conduct” determined the course which these proceedings took and was at the root of balancing the issue which the Court had to determine.
In the view of the Court the deliberate behaviour of the appellants was directly related to and was intended to achieve the outcome of the case, which has in fact occurred.
As explained in Dunne v Minister for the Environment [2008] I.R. 775 at 780, (per Murray C.J.), there “has been no fixed rule or principle determining the ambit of [the exercise of the court’s] discretion and, in particular, no overriding principle which determines that it must be exercised in favour of an unsuccessful plaintiff in specified circumstances or in a particular class of case.” More generally, it is not in doubt that the Court has jurisdiction, to be exercised in exceptional cases, to order a successful party to pay the costs of the unsuccessful party.
The behaviour of the appellants was such as to deprive them of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour in accordance with Order 99. The Tribunal was, on the other hand, fully entitled to conduct its inquiry and to seek the assistance of the High Court. The Court will, in these exceptional circumstances, order that the respondents are entitled to recover the costs of both the High Court and this Court from the appellants.