On the 8th June 2000, the plaintiff made an order that the defendant make discovery on oath of and produce to him

"(a) All documents and records in his possession or power relating to any accounts held in any financial institutions either within or outside the state, in his own name (individually or jointly) or for his benefit, or into which he made lodgments of money or into which he caused or procured lodgments of money to be made or into which lodgments of money were made for his benefit;

(b) All documents and records in his possession or power relating to any interest held by the defendant in any company and all documents and records in his possession or power relating to any accounts held by or on behalf of such company in any financial institution either within or outside the state;

(c) All documents and records in his possession or power relating to the tax amnesty and the monies in respect of which such amnesty was availed of including records in relation to the source(s) of such monies and the account(s) in which they were held.”

It is not in dispute that thereafter the defendant failed to comply, to a significant extent, with the order as to the discovery of documents and also refused to answer relevant questions addressed to him at the public hearings of the tribunal being conducted by the plaintiff. Proceedings were accordingly brought by the plaintiff against the defendant for attachment and/or committal for contempt.

In his reserved judgment, delivered on the 15th January of this year, Smyth J., having reviewed the facts and the law in detail, expressed his conclusions as follows:

“In my judgment, the contempt of the order of the High Court and the Supreme Court are of a most serious character and do not only justify the imposition of a custodial sentence, they demand it. The sentence I had initially in mind was very much higher than I now do, having reflected upon the matter and given all due weight to the cogent and eloquent pleas of counsel, I consider and determine that a custodial sentence of three months is the least that can be imposed, commensurate with the offence. In doing so I take into account all the information about the circumstances of the offence.

“Of the period of three months, the first seven full days of twenty four hours each must be actually physically served and so soon as the orders are perfected and the warrant was issued. This is the absolute bare minimum imposition that can mark the court’s disapproval of the disobedience of its orders. The balance of the sentence of three months will be suspended to enable the defendant to comply with the orders of the courts to which these proceedings relate and to swear and file a full proper affidavit or affidavits of discovery and to attend, produce and hand over to the tribunal .....the documents referred to in the said affidavit or affidavits being the documents and records mentioned in paragraphs (a), (b) and (c) of the order of the tribunal dated 8th June 2000 .... The suspension of the balance of the sentence aforesaid in respect of the contempt to which these proceedings relate shall be until Friday 23rd November 2001. This I hope will enable the tribunal to carry out its functions in an orderly manner and afford the defendant the opportunity to comply with the order as aforesaid and to exercise whatever right or rights of audience or representation as may be afforded to him by the tribunal, before the tribunal.”

(1) That the defendant should serve a part of the sentence imposed by the order of the 15th January 2001 for a period of seven full days of twenty four hours commencing on Wednesday 8th August 2001 as from 2 p.m.;

(2) That the defendant should pay by way of fine the sum of £5,000;

(3) That the defendant should make further and better discovery on oath in the form prescribed in Form No. 10 of Appendix C of the Rules of the Superior Courts of all documents in his possession, power or procurement in accordance with the terms of the orders already made on or before the 7th August 2001:

and

(4) that the plaintiff should recover against the defendant the cost of the further hearing.

The Nature and Extent of the Alleged Non-compliance.

At the outset, it should be pointed out that, if the defendant were to comply fully with the order of the High Court of 24th October 2000, it would necessarily involve the discovery by him of a very substantial quantity of documents. The order extended to documents and records relating to two periods, the first from 16th June 1977 to the date of the order and the second from the 16th June 1974 to the 17th June 1977. Moreover, the defendant during the periods in question appears to have operated no less than one hundred and ten bank accounts in various countries and was also engaged in a wide range of business activities both in this country and abroad. It also appears that the defendant wrote to two hundred and seventy two individuals, firms, companies and banks seeking documents relevant to the order of the 24th October 2000.

Following the making of the order of January 15th of this year, the defendant furnished the plaintiff with one hundred and fifty seven folders of documents. A number of separate affidavits were also filed by the defendant: it was, however, agreed between the parties that these were interim affidavits and that ultimately a final affidavit of discovery in accordance with the Rules of the Superior Courts would be filed. The date originally fixed for compliance with that requirement was the 30th March 2001: following the receipt of a letter from the defendant’s solicitors indicating that they were still awaiting replies to letters to certain persons from whom they were seeking relevant documents, the matter was adjourned in the High Court until the 15th May 2001, by which date the court required the discovery to be completed. Since the plaintiff at that stage indicated concern that there had not been a full compliance by the defendant with his discovery obligations, the court directed that the plaintiff should file an affidavit by the 10th July of this year and that any replying affidavit should be filed not later than the 17th July.

In the affidavits which were sworn and filed by the plaintiff and the defendant in July of this year, in accordance with that procedure, a contest emerged between the parties as to whether in respect of a number of individual matters the defendant had complied with his discovery obligations. The plaintiff was in effect contending that it was clear that documentation had been generated in respect of a number of matters which had not been discovered by the defendant: he had either failed to discover documents which the plaintiff believed to be in his possession or procurement or had failed to state what had become of documents which had previously been in his possession. The defendant again in response, in effect, said that in relation to all such matters he had complied with his discovery obligations to the fullest extent possible, that he was not withholding any documents covered by the discovery order from the plaintiff and that, so far as documents not in his possession were concerned, he had made every effort to obtain these from the relevant parties.

It is unnecessary, for the purposes of this judgment, to discuss in detail all the items which remained in controversy between the plaintiff and the defendant, because the learned High Court judge made express findings as to non-compliance in respect of three matters only. He indicated that he was not making any finding either in favour of or against the defendant in respect of the other matters of which the plaintiff made complaint and it is indeed one of the principal grounds of appeal advanced on his behalf that this was an unsatisfactory approach for the trial judge to have adopted: he should, as it was urged, have expressly adjudicated on any matter in respect of which he considered that there had been non-compliance and given his reasons for finding that there had been such non-compliance. I will consider that submission at a later stage in this judgment: at this point, however, it is appropriate to set out the three matters in respect of which the learned High Court judge made express findings of non-compliance.

The Coolamber Lands.

In the course of her affidavit of the 10th July, Marie Anne Howard, a solicitor acting on behalf of the tribunal, at paragraphs 100 - 102, made certain averments under the heading “Navona Limited”. She said that, on days 223 and 224 of the public hearings of the tribunal, the defendant gave evidence as to a sum in excess of £203,000 which had been debited to the account of a company under his control, Advanced Proteins Limited, in November 1987. She said that the defendant’s evidence was that this was a repayment of a loan advanced to him by the Goodman Group for the purpose of developing research into animal proteins, that the project had not proceeded and that this debit represented a cheque payment by him for the repayment of the loan. When it was pointed out to him by the plaintiff that the recipient of the cheque was a firm of solicitors, Binchys, the defendant stated that Binchys were acting for Mr. Goodman. There were no documents relating to this loan in the defendant’s discovery.

The affidavit continued as follows:

“102. I believe from further research carried out by me and by the tribunal’s legal team that the said sum was received by Binchys in connection with the purchase by an Isle of Man company, Navona Limited, of 55 acres land at Coolamber, Lucan which are located opposite the defendant’s home on the Newcastle Road. It appears that the defendant was involved with Mr. Goodman in this purchase which was funded by means of an advance of £350,000 by Mr. Goodman to the defendant on terms that the parties would share the proceeds of a later transaction involving the onward sale of the lands for development. There is no documentation whatsoever in any of the folders produced by the defendant in discovery in relation to these matters. Whereas he has furnished documentation relating to his involvement with Mr. Lawrence Goodman and companies owned and controlled by him, none of these relate to the aforesaid dealing and one would not learn from those documents of any land related transactions involving the defendant and Mr. Goodman.”

“I have no knowledge of Navona Limited. When I was involved in Advanced Protein Limited in the late 1980’s monies were advanced by Goodman Group. I was also, at that time, a non-executive director of Food Industries Plc. The Goodman Group requested that Advanced Protein forward £203,125.61 being part of the money which had been sent to it by the Goodman Group to Binchys Solicitors who at that time were acting for both Advanced Protein Limited and the Goodman Group. I sent, as requested, the draft to Binchys Solicitors, who were receiving it on behalf of the Goodman Group. I was not involved in that money following its delivery to Binchys Solicitors.

“At this time I had represented to Mr. Larry Goodman the existence of a potential property opportunity in relation to lands adjoining my house. I understand that Mr. Larry Goodman subsequently purchased those lands. At the time the lands were not zoned and ultimately the Goodman Group disposed of the lands before they were zoned. These lands were subsequently developed by a developer and are now the ‘Finnstown Housing Estate’. I have no knowledge nor have had any dealings with a company entitled Navona Limited.

“At all times my involvement in relation to the Finnstown land was primarily as an adjoining land owner who recognised the potential for those lands. I, in light of my working relationship with Mr. Larry Goodman, recommended the lands to him. It was at all times up to Mr. Goodman to decide whether to purchase the lands or otherwise. I was not involved in the purchase or ownership, nor did I have any interest in the lands, either before or subsequent to their acquisition.”

[Emphasis supplied].

At the interview of July 17th, Mr. Noel Smyth said that he had been engaged by Mr. Laurence Goodman to act on his behalf in seeking to recover expenditure of approximately £157,000 which had been incurred by him or his company in respect of interest payments and expenses accruing on foot of a loan made by the Bank of Nova Scotia to Southfield Property Company Limited in respect of 55 acres at Coolamber, Lucan, Co. Dublin acquired by Navona Limited in December 1987. The affidavit continued

“14. Mr. Smyth stated that Mr. Goodman’s liability for these amounts arose by virtue of a letter of comfort which he had furnished to the bank in respect of his indebtedness at the request of [the defendant] with whom he had agreed to share the profit on resale of the land.

15. Mr. Noel Smyth stated that Mr. Goodman executed an assignment of the debt from his company to Ellangrove Limited so that Ellangrove Limited could pursue and recover this indebtedness against [the defendant] in its own name.

16. Mr. Noel Smyth stated in the course of seeking to recover this indebtedness from [the defendant], correspondence and documents passed from Noel Smyth and Partners to [the defendant] and vice versa and that meetings were held with [the defendant] at which [the defendant] acknowledged that Mr. Goodman was entitled to a share of the profit realised upon the sale of the 55 acres in addition to reimbursement for his expenses and interest payments on foot of the loan taken out by Southfield Property Company Limited on the lands. Mr. Noel Smyth informed me that this correspondence with [the defendant] and his responses thereto were contained within the Ellangrove file which he believes was given to [the defendant] following his request in March 1999.”

“I say that Mr. Goodman informed the tribunal that this proposal was put to him by [the defendant] in respect of a proposal to acquire by tender Coolamber House and lands at Lucan County Dublin and that a copy of the auctioneer’s promotional documents was provided to him by [the defendant] at that time.”

These documents indicated that the company called “Navona Limited” was being formed in the Isle of Man as the company in whose name the property was to be purchased. In turn, Navona Limited was to hold those lands in trust for an Irish company, Southfield Property Company Limited, to whom the Bank of Nova Scotia issued a loan facility letter on 23rd December, 1987 offering to advance the sum of £350,000. That letter made it clear that the facility was being provided on condition that a letter of comfort in a format acceptable to the bank from Mr. Goodman was provided, which would include a provision that Mr. Goodman would not relinquish 100% beneficial ownership of Southfield Property Company Limited so long as any amounts remained outstanding under the facility.

The tribunal was further informed by Mr. Goodman that he was never provided with any shareholding in Southfield Property Company Limited, and that it subsequently sold its interest in the lands to another Isle of Man registered company, Vino Property Limited, without reference to him, without discharging the interest payments which he had made in respect of the loan and without accounting to him for any share in the profit realised upon the sale, in breach, as Mr. Goodman alleged, of the defendant’s agreement with him. He further informed the tribunal that, between 1993 and 1995, he was seeking to recover from the defendant the monies which he had expended in the payment of interest on the property loan in respect of these lands. He said that in the course of these dealings he was provided by the defendant with a memorandum prepared by him and faxed on the 12th December 1994.

Mr. Goodman told the tribunal that he did not agree that the facts recited in the memoranda were correct and in particular denied that he had any knowledge of any parties other than the defendant in the transaction to acquire these lands. The relevant contents of the memorandum (exhibit “MAH52”) are summarised as follows by Ms. Howard at paragraph 13 of her affidavit:

“I refer to the memorandum for the purpose of establishing that the defendant in these proceedings has in this memorandum claimed to have held various shareholding in the lands in respect of which he denies involvement at paragraph 100 - 102 of his affidavit. In particular, in page one of the memorandum he states that he undertook to secure 100% of the finance of the acquisition of the 55 acres. In page three he recalls that Southfield Limited, an Isle of Man, company had been formed to purchase the land and the meeting discussed the beneficial shareholdings including 41.3% shareholding for [the defendant]. At p. 6 he records that at a meeting a revised beneficial shareholding arrangement was put in place whereby he would hold 25% through another. As is apparent from the memorandum provided to the tribunal by Mr. Goodman, it is incomplete in that p. 2 of the sequence of pages is missing and it is possible that further pages followed after p.7. I believe, however, that since this is a document which was generated by the defendant herein that he has or has had in his possession, power or procurement the complete document and that such is discoverable under the terms of the orders for discovery made against him insofar as it evidences his claim to have beneficial ownership in lands held by land-owning companies.”

In paragraph 23 of the affidavit, the defendant stated that

“C. I had no beneficial interest in the companies which owned the lands at Coolamber in Lucan from 1987 onwards, and although I accept that I always hoped that I would be paid a portion of the profits out of the ultimate development of the lands, I do not believe that I ever at any stage had any beneficial interest in the underlying companies themselves.

D. I accept that I did have some documentation in my possession concerning the lands at Coolamber but I believe these documents were disposed of by me as part of a general clean out of my offices in 1995 or thereabouts. Among the documents that I believe it is likely I disposed of at that time are copies of the sales brochures exhibited by Ms. Howard as “MAH 45” and the memorandum exhibited as “MAH 52.” These are documents which I sent or gave to Mr. Goodman. I wrote through my solicitors to all the relevant parties concerned with these transactions including Mr. Goodman, Binchys and Noel Smyth and Partners seeking copies of any documents which they had and which could be of relevance to the plaintiff. I believed that any documents which any of these parties had relating to these matters would be made available to the plaintiff either by being furnished directly to the plaintiff or furnished to your deponent for inclusion in my discovery. There is no question so far as I am concerned of seeking to withhold any relevant documentation from the plaintiff.

“24. I refer to paragraph 3 of Ms. Howard's supplemental affidavit where she has alleged that my averment at paragraphs 100 - 102 of my affidavit of July 17th last is untrue to the effect that I had no knowledge of Navona Limited nor did I have any dealings with Navona Limited. I reject this claim by Ms. Howard and repeat that while it may well apparently be the case that a company called Navona Limited was involved in this transaction (as indeed her exhibit “MAH 49” would appear to establish), that it was Binchys who attended to all the legal formalities of the transaction and I had never heard of the involvement of Navona Limited until I saw it referred to in Ms. Howard’s affidavit of July 10th last.”

The defendant went on to say that, while he accepted that his understanding in December 2000 of his obligations as to discovery and giving evidence to the tribunal were incorrect, he was now endeavouring to comply fully with the orders of the court. He went on

“In particular I should add that while I concede that on days 223 and 224 of the tribunal sittings that I was not fully forthcoming with regard to the Coolamber Lands that I had genuinely not understood at the time that issues related to that transaction and the involvement of Advanced Protein Limited, could have fallen within the ambit of matters with regard to which I was required then to inform the tribunal. I now understand that the answers that I gave on days 223 and 224 in relation to these matters were unhelpful to the plaintiff and I deeply regret the inconvenience caused to him as a result.”

(b) Bank Account in Liechtensteinische Landesbank, Vaduz, Liechtenstein.

The defendant has given evidence to the tribunal that he was engaged in some business ventures in the Czech Republic. One of the companies with which he was associated in the course of those projects was a Jersey company, Longwater Investments Limited (hereafter called “Longwater”). He also said that, when he had a lot of bank debts in the mid 1990’s, Longwater had advanced two loans to him of approximately £300,000 each, guaranteed against his assets in Ireland and in the Czech Republic, for the purpose of defraying debts then due by him to banks in this State.

It appears that the amount of the indebtedness of the defendant to banks in Ireland was in the sum of approximately £995,000, his main creditor being the ACC Bank which had a charge in respect of debts of approximately £640,000 on 23 acres of land adjacent to the 5 acres upon which the defendants home is built. Those 23 acres were sold at auction on 25th July 1995 for a sum of £410,000 which sum, exclusive of solicitors’ and auctioneers’ fees, was paid to the ACC Bank in full and final settlement of the debts owed to it by the defendant. It also appears that the other Irish banks who were creditors of the defendant agreed to accept £153,000 in full and final settlement of those debts. It would appear to follow that, of the sum of approximately £600,000 borrowed by the defendant from Longwater, £153,000, at most, was used in discharge of the indebtedness of the defendant to the Irish banks.

As to these Longwater loans, the defendant gave evidence that these were drawn down, as required, from a bank account in the above bank (hereafter “the Landesbank”). This, he said, had been opened by Longwater and payments were made out of it, at the direction of one David Morgan (now deceased) or his son, Nicholas Morgan, a lawyer in Jersey, when the defendant required to defray a bank debt in Ireland.

The only documentation in relation to such a payment was, however, a letter from the defendant to National Irish Bank, Naas, Co. Kildare dated 30th January 1997 in which it was stated:

“I have signed the necessary documents this afternoon to transfer £15,897.00 to my current account. It may take 3 or 5 days to go through the international section.... the above mentioned funds should be with you Wednesday/Thursday next week at the latest.”

[Emphasis supplied]

(a) Copy bank statements and vouchers relating to the eight numbered bank accounts on various dates between 17th August 1995 and 29th October 1999 and;

(b) Two copy loan agreements;

(c) Recent correspondence between the defendant’s solicitors and Mr. Morgan.

In his replying affidavit, the defendant said that he had gone to considerable lengths to obtain these statements from the Landesbank: these had been delivered by an entity called the “CI Law Trust Group” to him on 21st March 2001 and his solicitors then wrote to that body on the 26th March requesting confirmation that the accounts furnished were the entirety of the accounts held by that bank in relation to him. He also said that the statements furnished by the Landesbank would not recite the account holder’s name or address, but would simply refer to a code. He said that his solicitors had received no response to the request made on 26th March 2001.

The defendant also said that the arrangement for drawing down the funds from these accounts was for him to contact Longwater and the bank by telephone: he was then required to identify the account number, his passport number and the password for the account (“Lucan”).

The defendant also gave evidence in relation to these matters to the tribunal and said that the person he dealt with at the bank was a Dr. Kieber and that his instructions to that person were always by telephone. When he was referred to the letter to the manager of the National Irish Bank in Naas, he accepted that there had been written communications with the Landesbank and a letter was signed by him authorising the release to the tribunal of all documents relating to the accounts. The defendant was ordered not to communicate with Dr. Kieber until January 16th 2001. No response was received by that date and it is not in dispute that thereafter the defendant was free to get in touch with Dr. Kieber and endeavour to procure for the tribunal the documentation relating to the movements in the accounts. At the hearing in the High Court, a letter dated April 30th was produced from the defendant to Dr. Kieber requesting the documentation in question. This letter had been written after the time for making discovery as originally fixed had expired.

This court was informed during the course of the appeal that, subsequent to the decision of the High Court, a further affidavit of discovery had been filed by the defendant. In addition to more recent bank statements from the Landesbank, faxes in relation to the accounts were produced which had not been discovered at any earlier stage.

In the course of his judgment, the trial judge said that the defendant’s discovery was deficient inter alia

“Because the defendant failed or neglected to apply to those who may have had necessary documents which were not in his possession or to do so timeously or to advance evidence of a persistence or to follow up on a request for information.”

“It is clear from the documentation that some matters were not promptly attended to e.g., the defendant’s construction of the restraint on communication with Dr. Kieber by the tribunal on the occasion of the defendant’s attendance on day 223, i.e., 14th December 2000. This was expressly lifted on 16th January 2001, the day after the order of 15th January, 2001. The only exhibited written communication directly to Dr. Kieber is dated 30th April 2001 ... i.e.., three and an half months after the letter of ‘release’ from the tribunal, one month after the expiry of the period for completion in the order of 15th January 2001 and four weeks after the court had signalled on 2nd April 2001 that a deadline of 15th May was to be regarded as a time of the essence provision.”

In his judgment, the learned High Court judge identified as a further illustration of the deficiency in the defendant’s discovery

“The failure to follow the very express provision of the court order, to adhere to the form of affidavit prescribed by Form 10, Appendix C of the Rules of the Superior Courts.”

“I [deponent] make oath and say as follows...

4. I have had, but have not now, in my power or possession the documents relating to the matters in question in this suit set forth in the second schedule hereto.

5. The last mentioned documents were last in my possession or power on [state when].

6. That [here state what has become of the last mentioned documents, and in whose possession they now are].

7. According to the best of my knowledge, information, and belief, I have not now, and never had in my possession, custody or power, or in the possession or power of my solicitor or agent, or in the possession, custody or power of any other persons or person on my behalf, any deed, account, book of account, voucher, receipt, letter, memorandum, paper, or writing, or any copy of or extract from any such document, or any other document whatsoever, relating to the matters in question in this suit, or any of them, or wherein any entry has been made relative to such matters, or any of them, other than and except the documents set forth in the said first and second schedules hereto”.

“I say that I have had, but have not now, in my possession or power or procurement the documents relating to the matters raised to date in this inquiry as set forth in the second schedule hereto and that the reasons that same are no longer in my possession or power are as set forth in the said second schedule.”

“Various records, processed cheques, photocopies of documents, invoices, bills, correspondence and similar documentation that may have been in your deponents’ possession over those years, 1973 to date, but which has been lost, destroyed, stolen, burnt or thrown away over those years but which had not been found or returned, and cannot be recalled for the purposes of this affidavit; and also documentation that may be in the possession of third parties and which has been sought by your deponent and which has not been procured or returned despite request as already set out and referred to in the correspondences previously discovered herein.”

“Had the [defendant] complied with the provision directing that discovery be made in accordance with the Rules of the Superior Courts and in particular Form 10, Appendix C thereof, the plaintiff would have a proper second schedule listing and properly identifying all documents which had been but were no longer at the time of swearing in the possession, power or procurement of the defendant. Neither the affidavit then thought to be the final affidavit sworn by the defendant on 11th May 2001 nor the further affidavit as to documents sworn pursuant to the order of 3rd July 2001 addresses this deficiency.”

The High Court Judgment.

In the course of his judgment, the trial judge said that, in dealing with the matter at earlier stages, the court had sought to balance fairly the urgency attaching to the tribunal’s investigations and the difficulties confronting the defendant in supplying information and documentation to the plaintiff. He said that regard had been had to the period of time and the volume of documentation involved and the fact that matters which might be of importance to the plaintiff might not have so registered with the defendant. However, while he accepted that some omissions in the documentation to date could be regarded as peripheral, he considered that

“Other omissions do not fall within that category and furthermore I find as a fact [on] the documents placed before the court for consideration betoken [of] want of frankness and completeness.”

Towards the end of the judgment, the trial judge said

“Credit must be given to the defendant for what he has done since 15th January 2001. It was a task that could and should have been obvious to him three years ago would have to be faced sooner or later. It is irrelevant if it was neither, because court orders within this closing legal year have made clear his legal obligations. In this judgment there is very deliberately no detailed express findings on many of the issues raised in the affidavits and submissions made to the court.

“I have taken a conspectus view of the evidence sufficient to enable me to conclude as I have on the question of compliance with the order of 15th January 2001. I leave to the tribunal the task of dealing with the material as it now exists supplemented by the further affidavit of discovery I hereby direct. This may entail calling the defendant on more that one occasion. If he has to be recalled even more than once, so be it.”

The trial judge said that, given that the non-compliance had been of a serious character, several weeks imprisonment should be the result, but that he was mindful that what might be regarded as a draconian power ought not to be exercised “too prodigally” or in a manner which was inconsistent with the requirements of the Constitution. In those circumstances, as already noted, he decided that the defendant should serve a further week’s imprisonment and made the other orders to which I have referred.

Submissions on behalf of the Parties.

On behalf of the defendant, Mr. John Trainor SC., submitted that, although the High Court judge had founded his judgment on the premise that there had been serious deficiencies in the discovery to date and that the documents placed before the court evidenced a “want of frankness and completeness”, he had expressly refrained from giving any particulars, save in the three instances already referred to in this judgment. He said that the trial judge by adopting what he described in the judgment as “a conspectus view of the evidence” had arrived at conclusions which were seriously flawed. Either he had arrived at conclusions adverse to the defendant in relation to matters other than the three specified matters or he had not. If he had arrived at such adverse conclusions, Mr. Trainor urged, then justice to the defendant required that he specify the reasons for those conclusions. That was of particular significance, given the detailed response by the defendant to all of the matters raised in Ms. Howard's affidavit of the 10th July. If he had not arrived at any finding adverse to the defendant in respect of all the remaining matters, then his judgment was also flawed in that he did not make an express finding to that effect and take it into account when considering what order should now be made and, in particular, whether the defendant should suffer the serious sanction of imprisonment.

As to the first matter in respect of which the trial judge had made an express finding, i.e., the Coolamber lands, Mr. Trainor submitted that the sworn evidence of the defendant to the effect that he neither sought nor received the missing Ellangrove file from Noel Smyth & Partners was not contested. Accordingly, the only deficiency identified in respect of the defendants discovery was the absence of a specific listing in the second schedule of the sales brochure which he had given to Mr. Goodman, the fax which he had sent to Mr. Goodman and the four letters from Noel Smyth and Partners concerning the Ellangrove file which he had discarded. It was arguable whether the proper completion of the second schedule required these documents to be specifically listed: if it did, it was the only failure to comply with the order of January 16th 2001 which had been established.

As to the Landesbank accounts, Mr. Trainor submitted that the trial judge appeared to have overlooked the fact that documentation concerning the Landesbank account had already been procured from the CI Law Group Limited and discovered prior to 30th March 2001. Moreover, the letter to Dr. Kieber was sent before the time for discovery had expired on May 15th.

As to the claim that the second schedule was not in accordance with Form 10 in Appendix C to the Rules, Mr. Trainor submitted that it was customary for affidavits to be sworn in the form adopted by the appellant in this case. It was accepted that, in accordance with the decision of this court in Bula Limited (In Receivership) -v- Crowley [1991] 1 I.R. 220, where a claim of privilege was being made in respect of documents, those documents had to be individually listed in the first schedule. That did not apply, however, where as here, a deponent was giving evidence as to documents no longer in his possession, power or procurement.

As to the sentence imposed by the High Court, Mr. Trainor submitted that if, contrary to his submissions, any form of contempt had taken place, it was civil contempt and that the object of this branch of the law was not punitive but coercive. It followed that the period of committal should be until such time as the order was complied with or until it was waived by the party for whose benefit it was made, citing the decision of this court in Keegan -v- de Burca [1973] IR 223 and of Finlay P as he then was, in The State (Commins) -v- McCrann [1977] IR 78.

Mr. Trainor further submitted that the power to order committal for civil contempt was one to be exercised with very great care. The court would not order committal where its contempt was of a minor or technical nature, citing the English decisions in Marshall -v- Marshall [1966] 110 SOL JO 112, Smyth -v- Smyth [1988] 1 FLR 179 at 181. Where the order of committal was suspended and the contemnor was subsequently in breach of the terms of the suspension, the court had a discretion whether to order the imprisonment of the contemnor: citing Re: W (B) and infant [1969] 1 All E.R. 594. Mr. Trainor said that imprisonment should always be regarded as a sanction of last resort in cases of contempt, citing Arlidge, Eady and Smyth on Contempt (second edition) [1999] at para. 14.3. In cases such as the present, it should only be used where the person in default had clearly demonstrated that he had no intention of complying with the order. Moreover, where, as here, the party was unable to obtain access to the documents through no fault of his own, the penal power should not be exercised: see Wilson -v- Raffalovich [1881] 7 QBD 553.

Mr. Trainor further submitted that the course adopted by the learned High Court judge did not adequately distinguish between the default that had unarguably occurred prior to the order of January 15th and any default which might have occurred thereafter. It was unjust that the appellant should suffer precisely the same term of imprisonment in respect of what, in comparison with the admitted default prior to January 15th, was not a default of a major nature. That, of itself, rendered the sanction imposed excessive and disproportionate.

On behalf of the plaintiff, Mr. Frank Clarke SC., submitted that the order made by the plaintiff now being appealed from should be seen in the context of the earlier history of the matter : the original orders made by the tribunal in April 1999, the orders of the High Court of June 8th 2000 and 24th October 2000 requiring compliance by the defendant with the orders of the plaintiff, unsuccessfully appealed to this court, and the contempt committed by the appellant of those orders, described by the learned High Court judge as one committed “in a deliberate and most serious manner”. That finding by the High Court had not been the subject of any appeal to this court. Mr. Clarke said that, following the delivery and analysis of the final affidavit of discovery furnished by the defendant in purported compliance with the order of 15th January 2001, the plaintiff had come to the conclusion that, notwithstanding the production by the defendant of extensive documentation, he had failed to comply fully with the orders. It was in consequence of that conclusion having been communicated to the High Court that the affidavits on behalf of the plaintiff setting out the alleged deficiencies and affidavits in response were filed.

Mr. Clarke submitted, that while the submissions on behalf of the appellant laid stress on the fact that the trial judge had adopted what he described as “a conspectus view”, the fact remained that three specific examples of deficiencies in the discovery had been identified in the judgment. Of these, that relating to the lands at Coolamber was of considerable importance in the context of the inquiries undertaken by the plaintiff in compliance with the resolution of the Houses of the Oireachtas.

Mr. Clarke submitted that the account given by the appellant in his affidavit of 17th July 2001 of his involvement in the purchase and development of the Coolamber Lands was less that complete. Indeed, the appellant himself accepted that, in giving evidence to the tribunal in relation to this matter, he was not “fully forthcoming” with regard to these lands. In the context of the present appeal, the critical matter was that the appellant did have at one stage documents relating to those transactions, including the important note prepared by him for Mr. Goodman in which his involvement in the transaction was recorded and brochures relating to the property, documents which he said had been disposed of when his offices were being cleaned out in 1995 or thereabouts.

Mr. Clarke submitted that, having regard to the fact that this information was only furnished by the defendant after the plaintiff had placed before the court evidence indicating that the explanation originally given of his role was less that complete, it was unarguable that there had been a serious failure to comply with his discovery obligations. Even assuming that the appellant was not obliged to list the individual items concerned in the second schedule in the light of the construction adopted on his behalf as to the relevant requirements in the Rules of the Superior Courts, he was at the very least under an obligation to identify those categories of documents of which he was once possessed but no longer had in relation to this matter. This he had failed to do and that of itself fully justified the High Court in reactivating in part the sentence suspended in January 2001.

As to the second matter - the Landesbank accounts - Mr. Clarke submitted that the Landesbank accounts were of considerable significance in the context of the plaintiff’s investigations and the defendant was clearly obliged to make a serious and expeditious attempt to obtain all the relevant documentation in relation to these accounts. In the event, Mr. Clarke submitted, he made no attempt to do so until after the time for making discovery had expired when he wrote the letter of April 30th to Dr. Kieber. As the court had been informed, subsequent to the decision of the High Court faxes to Dr. Kieber had been produced by the defendant, but there appeared to be no explanation as to why these had not been produced before.

As to the third deficiency identified by the trial judge, the failure to comply with the requirements of Appendix C of the Rules of the Superior Courts, Mr. Clarke submitted that the failure to complete the second schedule in accordance with the requirements of the rules would have unquestionably deprived the plaintiff of important information which he required for the purposes of his investigation, had he not obtained it from other sources. This, he said, had been strikingly demonstrated in the case of the Coolamber lands.

Mr. Clarke said that the defendant could have been under no illusion as to what was required of him: in fact, in swearing a supplemental affidavit of discovery on foot of the High Court order of October 24th, he had provided a schedule in the appropriate form which sought to identify at least some of the categories of documents which he once had, but which no longer were in his possession. By contrast, the second schedule to the affidavit of discovery now under consideration confined itself to a general reference to documents that could not now be produced, without identifying the documents and, stating when they were in the deponent’s possession and what had become of them.

Mr. Clarke submitted that it was an essential feature of the discovery process that the person making discovery does not confine his discovery to documents actually in his possession : the party for whose benefit the order is made must be in a position to obtain production of documents no longer in the possession of the person making discovery from the parties who now have them. He referred in this connection to the statement of the law in Bray on Discovery [1885]

As to the knowledge on the part of the defendant as to his obligations in this regard, Mr. Clarke said that this had been one of the specific issues raised before the High Court on the contempt application in January 2001: in her affidavit grounding that application, Ms. Howard had referred to the fact that the defendant had not complied with his obligation to furnish a proper second schedule.

As to the sentence imposed by the learned High Court judge, Mr. Clarke said that the attitude on behalf of the plaintiff in the High Court had been that, they having drawn the attention of the court to the areas in which the defendant had failed to comply with the orders of the court, it was a matter for the court to determine what the appropriate sentence was. He submitted that this court should not interfere with the sentence imposed by the High Court judge for the established non-compliance with his earlier order, unless there had been some error in principle on his part or the nature of the sentence was, in the circumstances, excessive and disproportionate. He submitted that, given that what was conceded to be an entirely appropriate sentence of three months had originally been imposed, it was clear that the re-imposition of no more than a further week of the sentence was one which it was within the jurisdiction of the High Court to adopt as a suitable sanction.

Mr. Clarke submitted that, while it was clear that the primary object of civil contempt was normally coercive rather than punitive, it had to be borne in mind that this formulation did not exclude entirely a punitive element, a matter of considerable importance in the present proceedings, which were inquisitorial rather than adversarial in nature and where the court was entitled to bear in mind the public interest in ensuring that, not simply the defendant, but all persons appearing before the tribunal complied fully with its lawful requirements. He also submitted that the decision of the English Court of Appeal in Re W (B) and infant [1969] 1 All E.R. 594 to the effect that, where a suspended sentence is imposed for contempt, the court has a discretion to do what is just in all the circumstances, was correct and should be followed.

The Applicable Law.

The tribunal of inquiry, of which the plaintiff is the sole member, was established by a resolution of both Houses of the Oireachtas to inquire into specified matters of public concern, i.e., certain planning matters and payments, as a matter of urgency. Two features of such an investigation should be emphasised. First, they are essentially inquisitorial rather that adversarial in their nature and hence not all the features associated with a lis inter partes are present. Secondly, in recent times, the Oireachtas has thought it appropriate to strengthen the powers available to such tribunals to ensure that the evidence which they require to bring their investigations to a comprehensive and speedy conclusion, whether it takes the form of oral testimony or documentary evidence, is made available to then as expeditiously as is practicable. In particular, s.4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1997 provides that

“Where a person fails or refuses to comply with or disobeys an order of a tribunal, the High Court may, on application to it in a summary manner in that behalf by the tribunal, order the person to comply with the order and make such other order as it considers necessary and just to enable the order to have full effect.”

In Keegan -v- de Burca, O’Dhalaigh CJ, speaking for the majority of the court, explained the distinction between civil and criminal contempt as follows:

“Criminal contempt consists in behaviour calculated to prejudice the due course of justice, such as contempt in facie curiae, words written or spoken or acts calculated to prejudice the due course of justice or disobedience to a writ of habeas corpus by the person to whom it is directed - to give but some examples of this class of contempt. Civil contempt usually arises where there is a disobedience to an order of the court by a party to the proceedings and in which the court has generally not an interest to interfere unless moved by the party for whose benefit the order was made. Criminal contempt is a common law misdemeanour and, as such, is punishable by both imprisonment and fine at discretion, that is to say, without statutory limit, its object is punitive: see the judgment of this court in In Re Haughey [1971] IR 217. Civil contempt, on the other hand, is not punitive in its object but coercive in its purpose of compelling the party committed to comply with the order of the court, and the period of committal would be until such time as the order is complied with or until it is waived by the party for whose benefit the order was made.”

“... in a case such as this the purpose of the sentence is not primarily punitive but coercive and more strictly in the interests of justice and the effect of administration of justice. By this means the wrong can best be remedied and the plaintiff’s right of action duly litigated.” [Emphasis supplied.]

Accordingly, while the decision suggests that there may be some room for a difference of view as to whether a sentence imposed in respect of civil contempt is exclusively - as distinct from primarily - coercive in its nature in civil proceedings generally, I am satisfied that where, as here, the proceedings are inquisitorial in their nature and the legislature has expressly empowered the High Court to secure compliance with the orders of the tribunal, it cannot be said that a sentence imposed in respect of a contumelious disregard of the orders of the tribunal and the High Court is coercive only in its nature. The machinery available for dealing with contempt of this nature exists not simply to advance the private, although legitimate, interests of a litigant: it is there to advance the public interest in the proper and expeditious investigation of the matters within the remit of the tribunal and so as to ensure that, not merely the appellant in this case, but all persons who are required by law to give evidence, whether by way of oral testimony or in documentary form, to the tribunal comply with their obligations fully and without qualification.

I am also satisfied that a court has jurisdiction to suspend, in whole or part, a sentence of imprisonment imposed in respect of civil contempt and thereafter, in the event of a further contempt, may at its discretion require the party in default to serve some or all of the balance of the sentence. I would adopt the statement of the law by the English Court of Appeal in the case of Re W B (an infant) [1969] 1 All ER 594. In that case, an undertaking had been given to the court by a person that he would have no communication with an infant ward. There having been a breach of that undertaking, a sentence of imprisonment was imposed. It was, however, suspended on condition that the person did not communicate or associate with the ward. When the order was disobeyed again, the trial judge directed that the sentence of imprisonment should take effect, expressing the view that he had no jurisdiction to do otherwise. The Court of Appeal held that this was a mistaken view of his jurisdiction, the law being thus explained by Lord Denning MR:-

“The sentence of six months did not come into operation at once and automatically on a breach being proved. The court has a discretion, analogous to a suspended sentence in the criminal courts. Imprisonment is not the inevitable consequence of a breach. The court has a discretion to do what is just in all the circumstances. It can reduce the length of the sentence or can impose a fine instead. It may indeed not punish at all. It all depends on how serious is the breach, how long has the man behaved himself, and so forth.”

“The purpose of the affidavit of documents is not merely to enable production to be ordered from the party himself. Its object is also to discover the existence of documents which have been in his possession or power and what has become of them and in whose possession they are (see the Form App. Ch. I ) and also of documents in which he has a joint property with other persons not before the court (and their names see Ante, p.198) and which therefore he cannot be ordered to produce, in order that the adversary may be enabled (1) to get production or even possession of them from the persons who have possession of or a property in them: see Ante, pp. 21 -23; (2) and to extort their contents by means of interrogatories...”

In Bula Limited (In Receivership) -v- Crowley, it was held by this court that, where privilege was being claimed in respect of documents, the documents had to be individually listed in such a manner that a person reading the affidavit would understand “the general nature of the document concerned in each individual case together with the broad heading of privilege being claimed for it” (per Finlay CJ at p.222). One can well understand that, in the case of documents formerly in the possession or power of a party and in respect of which no claim for privilege is being made, strict compliance with such a requirement would be burdensome and, in some cases, virtually impossible. Thus, in a case where, for example, relevant correspondence has been destroyed and no copies preserved, it may not be possible for a party to do more than indicate the general nature of the correspondence and what had become of it. Where it has not been shown to be unduly burdensome or impracticable, then, in my view, the obligation remains on the person making discovery to comply precisely with the format envisaged by the rules and set out in Appendix C, Form No. 10.

Conclusions.

In the course of his able submissions on behalf of the appellant, Mr. Trainor emphasised what he urged was the unsatisfactory approach of the trial judge in this case and said that, if it were the position that, in imposing the sentence of imprisonment which he did, he had taken into account the various matters contested in the affidavits filed on behalf of the parties in respect of which he had made no specific findings, that should not be allowed to stand. That submission would appear to me to be irresistible, if that were indeed what the trial judge had done. A careful reading of the judgment and a consideration of the surrounding circumstances in which that judgment was delivered has led me to the conclusion, however, that that was not what the trial judge did.

It is beyond doubt that the trial judge made three specific findings of non-compliance by the defendant with his order of January 15th 2001. Leaving aside for the moment the question as to whether those findings were justified by the evidence on affidavit before him and their respective significance, it is beyond doubt that they were made by him. It is also the case that, in relation to a number of other matters in respect of which there was a contest between the parties, he considered it inappropriate to arrive at any final determination. But it is of importance in this context that the trial judge not only imposed a sanction in respect of the non-compliance which he considered had been established: he also required the defendant to make a further and better affidavit of discovery. Mr. Trainor’s submission that the trial judge could not legitimately require a further affidavit of discovery to be sworn in a case where the defendant had already complied to the best of his ability with an existing order for discovery begs the question, since it assumes that that is what the defendant had done. If the trial judge were correct in his finding that there had been three specific instances of non-compliance with his earlier order, then he was clearly entitled to require the defendant to swear a further affidavit of discovery. In the light of the previous history of the matter, he was clearly entitled also, in my view, to make no finding until that further affidavit was filed as to the other matters which were in contention between the parties and I do not infer from his judgment that he was taking into account, in reactivating the suspended sentence to the extent that he did, any matters other than the matters in respect of which he had made express findings of non-compliance.

Those findings must next be considered. As to the first, it is clear that, in the light of the legal principles to which I have referred, the affidavit of discovery did not comply with the requirements of Order 31, Rule 13 and Form No. 10 in Appendix C, since in even the most generalised form it did not refer to any of the documents relevant to the defendant's interest in the Coolamber lands, although he later conceded that such documents had been in his possession, i.e., the sales brochure and the memorandum sent by him to Mr. Goodman (exhibit “MAH52”).

Nor, in my view, can there be the slightest doubt as to the significance of that deficiency in the defendant’s discovery. To put it at its mildest, his averment on oath that

“I was not involved in the purchase or ownership nor did I have any interest in the [Coolamber] lands, either before or subsequent to their acquisition”

As to the Landesbank accounts, the plaintiff was legitimately concerned to obtain all the documentation evidencing the source and ultimate destination of the substantial sums lodged to these accounts. It is an important feature of the law as to discovery of documents that the obligation of the party required to make discovery extends not merely to documents which are, or have been, in his possession: it also extends to documents relating to the matters in question in the suit which, while not in his possession, are or have been in his power, i.e., are held by other persons on his behalf or in circumstances where he can reasonably require those persons to produce the documents, or copies of them, to him. The tribunal and the High Court were fully entitled to infer from the evidence available to them in relation to the Landesbank accounts that a significant amount of documentation in respect of those accounts was either in the possession of the defendant or of persons who could be required to produce such documentation, such as the officers of the Landesbank and, in particular, Dr.Kieber. As the letter of 30th January 1997 to the National Irish Bank in Naas made clear, such documents undoubtedly are, or were, in existence. Given the importance of the matter and the previous history of the defendant’s failure to comply with the orders of the tribunal and the High Court, it was the duty of the defendant in order to comply with his discovery obligations to pursue expeditiously by every means in his power the recovery of these documents from Dr. Kieber and any other person in whose possession they might be.

No such steps had been taken by the defendant when the period originally fixed for completion of the discovery expired on the 31st March of this year. Although he had been expressly released from the prohibition on communication with Dr. Kieber on the 16th January 2001 he took no steps whatever to recover any of the documents until 30th April. He then confined himself to writing one letter to Dr. Kieber and appears to have taken no further steps between then and when the High Court dealt with the matter in July of this year. I am satisfied that the trial judge was entitled to draw the inference from those facts that there had been a failure to comply with the defendant’s discovery obligation in regard to the Landesbank accounts.

As to the third matter - the compliance with Form No. 10 of Appendix C - I have already pointed out that, while the rules as to the discovery of documents no longer in a parties possession or power should not be construed in a manner with would be unduly burdensome or impracticable, that did not justify the use of the formula adopted by the defendant in relation to the second schedule in this case. Nor could the defendant have been under any doubt as to his obligations in this context, since this had been specifically referred to in the application to the High Court in January of this year.

I am, accordingly, satisfied that, in respect of these three matters, it was established that the defendant had failed to comply with the relevant orders of the tribunal and of the High Court and that, while none of the instances of non-compliance can properly be characterised as technical or minor in their nature, the failure to make any discovery of the documentation relating to the Coolamber lands was particularly serious. The question that remains is as to whether, in those circumstances, the order made by the trial judge was one that should be set aside by this court.

The jurisdiction of this court to interfere with the order of the trial judge in a case of civil contempt of this nature is somewhat analogous to that of an appellate court dealing with a sentence imposed in criminal proceedings. This court should not interfere unless it is satisfied that the trial judge erred in principle or that the sentence imposed was excessive or disproportionate.

In my view, there was no error in principle by the trial judge. Having correctly found that, in three respects, one of them of a particularly serious character, the defendant had failed to comply with his discovery obligations, he was entitled to reactivate so much of the custodial sentence as was appropriate in all the circumstances. I would not consider the imposition of a further week’s sentence of imprisonment and a fine of £5,000 - or indeed a significantly increased penalty - excessive or disproportionate.

I would dismiss the appeal and affirm the order of the High Court.