Judgments Of the Supreme Court


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



THE SUPREME COURT
Appeal No. 38/2011

Denham C.J.
McKechnie J.
Dunne J.
Charleton J.
O’Malley J.

      Between/
Denis O’Brien
Applicant/Appellant
and

The Tribunal of Inquiry into payments to Messrs Charles Haughey

and Michael Lowry, (sole member Mr. Justice Michael Moriarty)



Respondent

Judgment delivered on the 12th day of July, 2016 by Denham C.J.

1. This is an appeal by Denis O’Brien, the applicant/appellant, referred to as “the appellant”, against the judgment and order of the High Court (Hedigan J.), dated the 1st February, 2011.

2. The Tribunal of Inquiry into Payments to Messrs Charles Haughey and Michael Lowry (Sole Member Mr. Justice Moriarty) is the respondent, and is referred to as “the respondent”.

Motion
3. The appellant brought a motion to the High Court seeking orders relating to the cross-examination of a witness before the respondent:-

      ”i. An Order of Certiorari quashing the decision of the respondent made on the 2nd day of November 2010 prohibiting the [appellant] through his legal representatives from cross-examining Professor Michael Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent and, (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent Tribunal which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010;

      ii. A Declaration that the refusal by the respondent to permit the [appellant] through his legal representatives from cross-examining Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen, or his representatives attended with lawyers of the respondent Tribunal, and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent Tribunal which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010 amounts to a failure by the respondent to observe and protect the [appellant’s] rights to fair procedure and to natural and constitutional justice;

      iii. A Declaration that the refusal by the respondent to permit the [appellant] through his legal representatives to cross-examine Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent Tribunal, and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010 amounts to a breach of legitimate expectation;

      iv. An Order of Mandamus directing the respondent to allow the [appellant] through his legal representatives to cross-examine Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent Tribunal and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent Tribunal which evidence was given by Professor Andersen to a public sitting of the Respondent on the 26th day of October 2010;

      v. An Order of Certiorari quashing the decision of the respondent made on the 2nd day of November 2010 limiting the [appellant’s] right through his legal representatives to cross-examine Professor Andersen to five hours which limitation prevented a full cross-examination of Professor Andersen by the [appellant];

      vi. A Declaration that the respondent’s decision of the 2nd day of November 2010 limiting [the appellant’s] right through his legal representatives to cross-examine Professor Andersen to five hours amounts to a failure by the respondent to observe and protect the appellant’s rights to fair procedures and to natural and constitutional justice;

      vii. An injunction restraining the respondent from publishing Part 2 of his Final Report until such time as the [appellant] has been permitted to cross-examine Professor Andersen in relation to (a) meetings and/or notes of meetings which Professor Andersen or his representatives attended with lawyers of the respondent and (b) statements made by Professor Andersen at paragraphs 14 (a portion) 19 20 21 22 51 52 53 54 55 56 57 and 58 of his Statement of Intended Evidence to the respondent which evidence was given by Professor Andersen to a public sitting of the respondent on the 26th day of October 2010.”


Background
4. The appellant submitted that the evidence of Professor Andersen was critical to the outcome of the Tribunal as he was a central witness and could testify on the probity of the bids for the licence. He was Managing Director of Andersen Management International, the consultants engaged by the Department of Transport, Energy and Communications in April, 1995 to assist civil servants in assessing the six applications for the grant of the second GSM mobile phone licence. It was submitted that if his evidence were credible, it would illustrate that the process was above board and there could be no substance in the allegations made against the appellant that he was a party to a tainted process.

5. The appellant wished to cross-examine Professor Andersen in relation to meetings with the respondent’s counsel and in relation to notes of such meetings. He sought to determine whether counsel for the respondent were biased against the Esat Digifone bid, and to determine whether Professor Andersen agreed that the notes of the meetings were accurate. It was submitted that if he could demonstrate evidence of bias on behalf of the respondent’s counsel, this could have influenced the respondent as to how he was to weigh up the evidence.

6. On the 23rd March, 2010, the respondent made a ruling holding that it was inappropriate for its lawyers to be called to give evidence. The respondent reasoned that if it was to hear evidence from its lawyers concerning allegations of bias on their part and adjudicate thereon, the principle of nemo iudex in causa sua could be breached; it followed therefore that it would be unfair to hear evidence of bias against the respondent’s lawyers where they were not entitled to respond.

7. Three weeks after this ruling, the appellant informed the respondent that Professor Andersen would give evidence. The appellant provided Professor Andersen with an indemnity in relation to his evidence. Professor Andersen agreed to give evidence from the period Tuesday the 26th October, 2010, to Friday the 5th November, 2010.

8. On Tuesday the 2nd November, 2010, the respondent made three rulings in relation to the cross-examination of Professor Andersen. In the first two rulings the respondent prohibited the appellant’s counsel from cross-examining Professor Andersen in relation to (i) meetings and (ii) notes of meetings that Professor Andersen or his representatives attended with members of the respondent’s legal team. In the third ruling, the respondent limited the time available to the appellant’s counsel to cross-examine Professor Andersen.


High Court Order
9. The High Court reserved judgment in the matter. Then on the 1st February, 2011, the High Court ordered that the application be refused.

The High Court Judgment
10. In a reserved judgment the learned High Court judge set out his reasons for refusing the application.

Notice of Appeal
11. The appellant filed a notice of appeal on the 3rd February, 2011. The essence of the appeal is that the High Court erred in law and in fact in determining that the respondent was entitled to restrict the appellant’s right to cross-examine Professor Andersen in terms of content and time, on a series of grounds. These grounds are set out in nineteen paragraphs.

Preliminary Issue – a Moot?
12. A preliminary issue has been raised. It was submitted by the respondent that the appeal is moot.

12(i) On behalf of the respondent it was submitted that the appeal should be dismissed on the basis of the doctrine of mootness.

12(ii) It was submitted that the objective of the proceedings was to seek various reliefs relating to the evidence of Professor Andersen for the purpose of delaying or preventing the publication of Part 2 of the Final Report of the respondent. There had been no application to the courts for injunctive relief to restrain the respondent from publishing Part 2 of his Final Report, until such time as he had been permitted to cross-examine Mr. Andersen.

12. (iii) The examination and cross-examination of Mr. Andersen proceeded and was completed.

12.(iv) In March 2011, the respondent published Part 2 of the Final Report. That report, including the findings of the respondent relating to the appellant and each of the findings of the respondent which had a connection with the evidence of Mr. Andersen, was not the subject of any application for leave for judicial review by the appellant. The respondent stressed that this appeal relates to evidence adduced for the purpose of enabling the respondent to make findings, and that the Final Report which contains the relevant findings of the respondent has not been the subject of any legal challenge by the appellant.

12.(v) It was submitted, therefore, that this appeal does not involve any live or real or concrete dispute between the parties, that the case is not one with a present live controversy, and that the essential foundation of the action has disappeared. Further, that any decision on the issues would now be of no practical significance to the parties.

12. (vi) It was submitted that the issues now are purely hypothetical or academic. That scarce judicial resources should not be used to advance an academic analysis. That the appeal is moot, and that there are no special reasons in the public interest for hearing the appeal. Consequently, it was submitted, the appeal should be dismissed.

13. (i) The appellant submitted that even before considering the doctrine of mootness, this Court should take into account the speed with which the appellant sought to advance the appeal and the fact that this Court was unable to deal with it for a considerable period of time, due to the backlog of appeals in the Supreme Court prior to the establishment of the Court of Appeal.

13. (ii) The appellant drew attention to the following dates: date of the rulings of the respondent, 2nd November, 2010; order granting leave to apply for judicial review, 8th November, 2010; substantive hearing in the High Court, 17th to 21st December, 2010; judgment and order of the High Court, 1st February, 2011; notice of appeal filed on the 3rd February, 2011; application to Supreme Court for a priority hearing, 10th February, 2011; renewed application to the Supreme Court for a priority hearing, 3rd March, 2011.

13. (iii) In submissions counsel on behalf of the appellant drew attention to the jurisprudence on the issue of mootness. It was submitted that applying the legal principles, to which counsel had referred: - (a) the fact that the appellant did not seek to judicially review Part 2 of the Final Report of the respondent is of no relevance to these proceedings; (b) the appellant has a constitutionally guaranteed right of appeal to this Court; (c) the appellant sought to advance that appeal as quickly as possible subject to the constraints on the Supreme Court due to the backlog of appeals. Consequently, any decision that the proceedings were moot in this contest would be manifestly unfair having regard to that constitutional right, and the obligations of the Courts under the European Convention on Human Rights to deal with cases as expeditiously as possible; (d) the Supreme Court has already recognised the importance of the appeal by not transferring the appeal to the Court of Appeal; (e) the doctrine of mootness is “but a rule of judicial practice” per McDonagh v. Governor of Mountjoy Prison [2015] IECA 71; (f) the decision sought to be impugned is still a ‘live issue’ as the relationship between the appellant and the respondent has not yet concluded per Lofinmakin (a minor) & ors –v- Minister for Justice Equality & Law Reform [2013] IESC 49, [2013] 4 I.R. 274. In other words the issues have not been finally resolved by “time and events”; (g) the respondent’s submissions fail to take into account the form and nature of the proceedings, i.e., a challenge to a Tribunal. This is a factor which the Court is entitled to take into account as per Lofinmakin (a minor) & ors –v- Minister for Justice Equality & Law Reform; (h) the relief claimed is not a bar to a successful appeal simply because the respondent has reported as his work is still ongoing vis-á-vis the appellant as per Lofinmakin (a minor) & ors –v- Minister for Justice Equality & Law Reform; (i) if the Court does not hear the appeal there is no opportunity for further review of the issues in actual cases as per Lofinmakin (a minor) & ors –v- Minister for Justice Equality & Law Reform; (j) the character and status of the respondent is important as a Tribunal of Inquiry established under the Tribunals of Inquiry legislation both in terms of public confidence in the respondent’s inquiry as well as the impact on other public and private inquiries in relation to the application of the right to cross-examine witnesses as per Lofinmakin (a minor) & ors –v- Minister for Justice Equality & Law Reform; (k) a decision of this Court on the matters under appeal would not be advisory in nature as it would go to the heart of the manner in which the respondent conducted the hearings under review with an impact both on the Report which has been published and the Costs Orders yet to be made as per Goold v Collins [2004] IESC 38 and O’Brien v Personal Injuries Board (No. 2) [2007] 1 IR 334; (l) a decision of the Court is necessary for the determination of the rights of the appellant in terms of the lawfulness of the decisions under review as per Murphy v Roche [1987] IR 106; (m) the issues are not hypothetical or academic because of the direct impact the appeal would have on the appellant’s legal rights, namely his constitutionally protected right to fair procedures.


Decision

Law
14. The issue of mootness has been addressed in many cases over the last few years.

15. It is well established that the Court will not decide a moot. In Irwin v. Deasy, [2010] IESC 35, (Unreported, Supreme Court, 14th May, 2010), Murray C.J. explained:-

      “The mootness doctrine is applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable.”
16. In Dellway Investments Ltd. v. NAMA [2011] 4 I.R. 1, at p. 219 I stated:-
      “Under the doctrine of mootness it is well settled that a court will not deliver advisory judgments when an issue is not longer live between parties”.
17. This Court has approved the analysis set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General) (1989) 1 S.C.R. 342, where it was stated:-
      “An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the court is called upon to reach a decision. The general policy is enforced in moot cases unless the court exercises its discretion to depart from it.”
18. There are exceptions, thus, to the general rule, that the Court will not hear a moot. In O’Brien v. Personal Injuries Assessment Board (No. 2) [2006] IESC 62, [2007] 1 I.R. 328, Murray C.J. stated:-
      “Moreover, Article 34.4 of the Constitution provides for a right of appeal from the decision of the High Court to this Court (subject to limitations prescribed by law). Where, as in this case, a party has a bona fide interest in appealing against a declaratory order of the High Court which is not confined to past events peculiar to the particular case which has been resolved in one way or another, the court should be reluctant to deprive it of its constitutional right to appeal. In this case the respondent continues to be constrained in the exercise of public powers under statute by virtue of the declaration granted in the High Court at the instance of the applicant.”
19. In considering whether to exercise a discretion and to hear a moot appeal a court will analyse the circumstances of a case. Thus, in Okunade v. The Minister for Justice Equality and Law Reform [2012] IESC 49, [2012] 3 I.R. 152, in analysing that case, Clarke J. stated:-
      “5.1 The precise question which was determined by Cooke J. and which, therefore, arises on this appeal is moot.

      5.2 However, it does need to be noted that the issue was not moot at the time when the appeal to this Court was initially brought. That factor, of itself, would not, of course, warrant the Court hearing an appeal which was moot. However, significant additional factors arose in this case.

      …

      In those special and unusual circumstances this Court felt that it was appropriate to hear the appeal notwithstanding its mootness.”

20. There are exceptions, thus, to the general rule that the Court will not hear a moot appeal. The exercise of this discretion has been addressed in a number of cases. The decision to exercise discretion is based on factors in a case and whether there are special and unusual circumstances such that the Court considers it appropriate to hear an appeal, notwithstanding its mootness.

Moot
21. In this case the substantive appeal raises issues relating to the cross-examination of Professor Andersen, before the respondent, between the 26th October, 2010, and the 5th November, 2010, and to the ruling of the respondent on the 2nd November, 2010.

22. However, the respondent has concluded on this aspect of evidence, and Part 2 of the Final Report of the respondent was published in March, 2011.

23. There has been no application to challenge by way of judicial review Part II of the Final Report of the respondent.

24. I am satisfied that the issue as to the cross-examination of Professor Andersen, before the respondent, is moot.

25. In all the circumstances, therefore, I am satisfied that this appeal is moot.

Discretion
26. Thus, the next step is to consider whether, as a matter of discretion, the appeal should be considered. There are important factors in this appeal such that it is appropriate for the Court to exercise its discretion and to hear the appeal. These include:-

      (a) The appellant lodged his appeal within time in the Supreme Court.

      (b) The appeal was not moot when it was filed in the Supreme Court.

      (c) The appellant sought, unsuccessfully, a priority hearing of the appeal in this Court in February 2011, at a time when Part 2 of the Final Report had not been published. The appellant also sought a priority hearing in March, 2011.

      (d) At that time there was a considerable backlog of cases in the Supreme Court.

      (e) Judicial review was the form of appeal open to the appellant, and taken by him, on this issue of cross-examination of a witness.

      (f) The fact that the appellant has not judicially reviewed the publication of Part 2 of the Final Report of the respondent is not determinative of this issue.

      (g) The constitutional right of appeal of the appellant is a factor, in all the circumstances of the case.

      (h) The decision of the respondent on the issue has consequences, including costs, which, the Court was informed, were not concluded.

      (i) The power of the respondent to case manage the hearings before him by, as in this case, limiting by content and time, a cross-examination, is an important factor.

27. None of the above factors on their own is sufficient to trigger the exercise of discretion to hear a moot appeal. However, in the cumulative circumstances, the factors, taken together, are such that I would exercise discretion and consider the appeal.

Substantive Appeal
28. Thus, I would consider the substantive appeal in this case.

29. The appellant’s appeal centres on three issues:-

      (a) Was the respondent entitled in his ruling of the 2nd November, 2010, to prohibit the appellant from cross-examining Professor Andersen in relation to a meeting which Professor Andersen or his representatives attended with members of the respondent’s legal team when Professor Andersen had made grave allegations of bias against members of the respondent’s legal team, on the ground that to allow such cross-examination would infringe the principles of nemo iudex in causa sua and audi alteram partem.

      (b) Was the respondent entitled in the ruling of 2nd November, 2010, to prohibit the appellant from cross-examining Professor Andersen in relation to notes of meetings which Professor Andersen or his representatives attended with members of the respondent’s legal team, in circumstances where Professor Andersen had made grave allegations of bias against members of the respondent’s legal team on the ground that to allow such cross-examination would infringe the principles of nemo iudex in causa sua and audi alteram partem.

      (c) Was the respondent entitled in the ruling of the 2nd November, 2010, to curtail the time available to the appellant to cross-examine Professor Andersen.

30. The issues raised by the appellant on this appeal were raised by the appellant in the High Court.

31. At the core of the appeal is the evidence of Professor Andersen. Professor Andersen was Managing Director of Andersen Management International, the consultants engaged by the Department of Transport, Energy and Communications in April, 1995 to assist civil servants in assessing the six applications for the grant of the second GSM licence.

32. Professor Andersen was not a citizen of Ireland, nor did he reside in Ireland. The respondent made efforts from 2002 to 2005 to secure the attendance of Professor Andersen before the respondent. Professor Andersen declined to attend.

33. In September, 2005, the respondent set out in a ruling the effort which had been made to obtain the attendance of Professor Andersen and held that the absence of Professor Andersen was not a reason to terminate the inquiry, which had been sought by the appellant.

34. The appellant brought proceedings in relation to that ruling of the respondent. Those proceedings were heard in the High Court in November and December, 2005. The High Court dismissed the application.

35. The appellant appealed against that decision of the High Court. The appeal was heard in May, 2006, when it was dismissed.

36. In November, 2008, the respondent circulated provisional findings to affected persons, including Professor Andersen. In December, 2008, the respondent received submissions in response to the provisional findings from Professor Andersen.

37. In March, 2010, the respondent made the ruling previously referred to, that it would be inappropriate for members of the respondent’s legal team to be called before the respondent to give evidence.

38. Several weeks later, the respondent received a statement from Professor Andersen. It was supportive of the appellant. In April 2010, the respondent was informed that Professor Andersen would be willing to give evidence to the Tribunal.

39. An important factor in the evidence of Professor Andersen was his view that certain members of the respondent’s legal team demonstrated bias against Esat Digifone. He was willing to give evidence of this.

40. It is important to bear in mind that the Tribunal had concluded its work on this aspect of its inquiry and had circulated its provisional findings. It was much later that it became apparent that Professor Andersen would be willing to give evidence, having previously declined to do so in the absence of an indemnity from the Tribunal. When it became clear that Professor Andersen would be willing to give evidence, this was facilitated by the Tribunal.

41. Professor Andersen agreed to give evidence from the period Tuesday 26th October 2010 until Friday 5th November 2010, and accordingly the hearings to obtain Professor Andersen’s evidence were scheduled to facilitate his availability.

42. It transpired that Professor Andersen received an indemnity from the appellant in respect of written statements of evidence and evidence given by him at the public hearings before the respondent.

43. As a consequence of the allegations made by Professor Andersen against the respondent’s counsel, the respondent retained a senior counsel other than the Tribunal counsel for the purpose of examining Professor Andersen. Michael McDowell S.C. was retained.

44. The appellant sought leave to apply for judicial review in respect of the decision of the respondent to retain Mr. McDowell S.C. The High Court refused to grant leave to the appellant for judicial review. That decision has been appealed. The entirety of Professor Andersen’s statement was adduced in evidence. No allegations were made against the appellant.

45. After the direct examination of Professor Andersen had concluded, on the 2nd November, 2010, counsel for the appellant submitted to the respondent that having heard the evidence, he should conclude that the licence was fairly awarded to Esat Digifone. At that point in time, Professor Andersen remained available for three further days, namely the 3rd, 4th and 5th November, 2010, for the purpose of cross-examination by all the parties concerned with the issue of the licence to Esat Digifone.

46. Thereafter the respondent made the rulings the subject of this judicial review appeal.

47. The High Court reviewed the relevant case law, and held:-

      “Where there is a clear public interest involved such as is the case with any Tribunal of Inquiry, then even the right to cross examine ones accusers may be controlled, subject to not imperilling a fair hearing or a fair result. The right to cross examine ones accuser may therefore be curtailed but only within a firm basis in law consistent with the constitution.

      6.5 However none of the cases deal with a right to cross examine a witness who is not an accuser. It seems to me that there must be such a right particularly when a reputation might be damaged by evidence. I would think this right should weigh in the balance according to the extent by which that reputation might be prejudiced. Thus the proportionality of the interference with this right falls to be considered as per Meadows v Minister for Justice [2010] IESC 3. Taking the first two issues i.e. limiting the nature of the cross examination; here the right pursued is to cross examine a witness who not only is not an accuser but who has given evidence favourable to the position contended for by the [appellant]. The right involved here is such as I think can only arise in certain limited circumstances. I do not believe it possible to set out exhaustively what those circumstances might be but I do believe they must be clear and compelling in order to constrain the High Court to intervene in what must ordinarily be within the discretion of a Tribunal i.e. its procedures in controlling the taking of evidence before it.

      6.6 In this case it is agreed the evidence given by Professor Andersen was favourable to the [appellant]. In my view no compelling or even satisfactory answer was given to the Courts question as to what it was hoped to obtain by questioning him further about bias on the part of the Tribunal lawyers. He had already stated he thought they were biased and had explained in some detail what he meant by that. The most that could have been hoped for was that he would repeat what he had already said but perhaps in stronger terms, that he could perhaps gild the lily. Without even taking account of the inherent risk involved in advocates, however skilled, attempting to gild the lily, this speculative opportunity allegedly missed must surely be a right of the most limited nature if indeed it exists at all. For the same reasons it is also highly speculative as to the extent to which the limitations which were imposed on cross examination could prejudice the reputation of the [appellant].

      7. Against this is to be balanced the concerns expressed by the Sole Member that to allow this area of evidence to be pursued in cross examination would, in the interests of fairness, require him to hear evidence from the Tribunals own lawyers as per the rule in audi alteram partem. Their good name and reputation was after all being called into question. This in turn would place him in the position of being a judge in his own cause. These interlinked problems would surely give rise to grave questions concerning the Sole Members impartiality. In short there are at the very least strong grounds for the Sole Member to have taken the course he did. Balancing these very real and serious problems for the Tribunal against the very speculative and therefore limited right of the [appellant], it seems to me that the Sole Member made a decision that was eminently reasonable and grounded firmly on relevant evidence. That alone, on reasonableness grounds, must put the decision to limit the cross examination of Professor Andersen beyond the reach of Judicial Review. Even was I to accept that the application is not based on grounds of irrationality but on the choice by the Sole Member of a procedure that was unfair to the [appellant], the same considerations apply. The procedures followed were in all the circumstances of the case fair and reasonable taking account of the difficulties with which the Sole Member was faced. This I think disposes of the first two issues.

      8. As to the decision of the Sole Member to limit the time to cross examine, I think similar consideration apply but even more strongly so. It is manifestly clear from the evidence that the presence of Professor Andersen to give evidence had been obtained only after extraordinary difficulty. Limited time was available. His future availability, were his evidence incomplete, was highly doubtful and at best would delay the Tribunal delivering its final report by up to a year. The decision to limit the applicant to five hours which in fact was extended to six hours was it seems to me a balancing of rights that was eminently reasonable in the circumstances of this case and consistent with fair procedures.

      9. For the above reasons the orders sought are refused.”

48. I have considered carefully the oral and written submissions of the parties.

49. The injunction sought in the pleadings is clearly not now an issue as Part 2 of the Final Report has been published.

50. Thus, the kernel of the case relates to the issue of the cross-examination of Professor Andersen. McGrath in Evidence, 2nd edition, paragraphs 3 – 92 describes the objectives of cross-examination as follows:-

      “Cross-examination of a witness called by a party is carried out by the other parties in the proceedings and has two main objectives:

      (1) to elicit evidence from the witness in relation to the facts in issue which is favourable to the cross-examining party; and

      (2) to cast doubt upon the veracity, accuracy, or reliability of the evidence given by the witness.”

51. It is a central factor that the evidence of Professor Andersen was favourable to the appellant.

52. Thus, while the matter of the cross-examination of a witness before a tribunal is an important issue, in this case it has to be viewed through the prism of the witness’s evidence being in favour of the appellant.

53. I would affirm the finding of the learned trial judge that Professor Andersen had given evidence that in his opinion the respondent’s lawyers were biased, and that he had explained in detail what he meant, that the most that could have been hoped for was that he could repeat himself, and, perhaps, gild the lily. This finding is at the heart of the ruling of the respondent. Bearing in mind the objectives of cross-examination as described by McGrath, it is difficult to imagine that anything more favourable to the appellant could have been elicited on cross-examination of Professor Andersen by counsel on behalf of the appellant; equally it is clear that the objective of any such cross-examination would not have been to cast doubt upon the veracity, accuracy or reliability of the evidence given by Professor Andersen.

54. I am satisfied that there was evidence before the learned High Court judge upon which he had grounds to reach his conclusion.

55. The rulings by the respondent in issue in this case are an illustration of the case management of a Tribunal. It is essential that a Tribunal be case managed by the Chairperson. In this case, some considerable time after the provisional findings of the respondent had been circulated to interested parties it became apparent that Professor Andersen was available to give evidence, having previously declined to do so. His direct examination concluded on the 2nd November, 2010, and in circumstances where Professor Andersen had indicated his availability as being from the 26th October, 2010, until the 5th November, 2010, it was clearly necessary for the respondent to indicate the time available to various parties to cross-examine Professor Andersen. To that extent the curtailment of time to the appellant to cross-examine Professor Andersen for a period of six hours was clearly appropriate and took into account not just the rights of the appellant but also those of other parties before the respondent. In those circumstances the finding of the trial judge that the decision to limit the appellant to five hours, which in fact was extended to six hours, was a balancing of rights that was eminently reasonable in the circumstances of the case, and it was consistent with fair procedures.

56. I am satisfied that in all the circumstances of this case the rulings of the respondent were not a breach of fair procedures, or of constitutional justice, or of any rights of the appellant.

57. Consequently, I would not interfere with the decision of the High Court.

58. In conclusion, for the reasons given, I would dismiss the appeal.






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