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:	McKechnie J.
Status:	Approved
Result:	Appeal dismissed
Judgments by Link to Judgment Concurring Denham C.J. Link Dunne J., Charleton J. O'Malley J. Link McKechnie J. Link

THE SUPREME COURT

McKechnie J.

Dunne J.

Charleton J.

O’Malley J.

BETWEEN

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 12th day of July, 2016.

1. The appellant (or “the applicant”) is a businessman of both national and international repute and was the chairman and major shareholder of Esat Digifone when it successfully submitted a bid for the second Irish GSM mobile phone licence in 1995. The respondent (or “the Tribunal” or “the Sole Member”, and colloquially referred to as “the Moriarty Tribunal”) was a Tribunal of Inquiry established by instrument of An Taoiseach in 1997 to inquire into payments made to certain politicians and related matters.

2. As part of the Tribunal’s remit it was required to inquire into the granting of the said licence and the antecedent process of bidding and selection which gave rise to it. During the course of this aspect of its work the Sole Member issued certain procedural rulings which Mr. O’Brien unsuccessfully challenged in judicial review proceedings. Hence, his appeal to this Court from the judgment of Hedigan J., delivered on the 1st February, 2011, and the resulting order which was perfected on the 2nd February, 2011.

3. At the outset it should be noted that these rulings were made in the context of hearing one witness at the tail end of the public hearings and at a time relatively close to the intended publication of the second part of the Tribunal’s final report. The challenge sought mandatory, injunctive and declaratory reliefs (para. 13 infra), all having consequences for the delivery date of the report and for the substance of its findings. As it happened, the report was published in March, 2011, and whilst the Notice of Appeal had been served by that date, no application was ever made to prohibit its publication, nor were its terms subsequently challenged. This critical omission means that the only outstanding relief which can now be sought is a declaration that fair procedures were not adhered to. In my view, this should not be permitted and the appeal, in accordance with well established principles, should be declared moot.

4. In addition, however, unlike the majority of my colleagues, I do not consider that the circumstances are in any way sufficient for this Court to exercise its discretion to consider the appeal on its merits. In order to understand why this is so, it is necessary first to set out the background to the substantive issue raised, as well as the reasons why the appeal is now moot.

Background:
5. As stated, the within proceedings arose out of three procedural rulings made by the Sole Member on the 2nd November, 2010, concerning the cross-examination of Professor Michael Andersen, with the appellant alleging that the net effect of these rulings was to violate his natural and constitutional right to conduct an unrestricted exercise in such cross-examination.

6. First, some context. Professor Andersen was the founder of Andersen Management International, the consultancy firm retained by the Department of Transport, Energy and Communications in 1995 to assist civil servants in the evaluative selection process for the second GSM phone licence. It was said that the evidence of this central witness was critical to the final outcome of the Tribunal, in that he was anticipated to testify as to the probity of the bids and the bidding process for such licence. It was therefore Mr. O’Brien’s intention to show through this evidence that there was no substance whatsoever to the allegations made against him, namely that he lacked integrity and that he was a party to a flawed contest and a corrupt competition process.

7. The appellant had previously instituted three other sets of judicial review proceedings against the respondent. The first of these, brought in 2005, also concerned the evidence of Professor Andersen, or more accurately the lack thereof, because at that time he was not making himself available to the inquiry. As it happened, this situation was to change somewhat dramatically a few years later. However, under the circumstances then existing, the High Court upheld a ruling made by the Sole Member that the Tribunal could continue with its work despite the absence of Professor Andersen. In so holding, Quirke J. acknowledged the very real efforts made by the respondent since 2002 to procure the professor’s attendance, which unfortunately had involved significant difficulties and delays. Accordingly, the learned judge held that the Sole Member was justified in the decision arrived at.

8. Having been served with a copy of its provisional findings, which issued in November, 2008, Professor Andersen in response made allegations of bias against the Tribunal. In March, 2010, the Sole Member, in a matter unconnected to this witness, made a ruling that it would be inappropriate for the Tribunal to either hear or adjudicate on evidence from its own counsel concerning similar allegations of bias, as the close working relationship between them could give rise to a breach of the principle of nemo iudex in causa sua. As a result, and as a direct consequence of this decision, the Tribunal also held that it would be unfair to entertain evidence of bias against its lawyers to which they were not entitled to respond: this would clearly breach the rule of audi alteram partem. Some three weeks following those decisions, but apparently unrelated to them, the Tribunal heard from the appellant’s solicitors that Professor Andersen was in fact then prepared to give evidence before it; apparently Mr. O’Brien has offered the professor an indemnity, something which the Tribunal had previously declined to do.

9. Professor Andersen duly presented himself at the Tribunal from the 26th October, 2010, until the 5th November, 2010. During the course of his evidence, he referred to his prior dealings with that body, and in particular to private meetings he had had with its legal team. He made a number of statements to the effect that in his view certain members of that team had demonstrated a bias against Esat Digifone and in favour of Persona, a rival bidder for the licence. He stated, inter alia, that “[i]t seemed quite clear to me that at least part of the Tribunal was operating under a pro-Persona and anti-Esat Digifone bias” and that “[at a meeting on the 23rd October, 2003], it was very evident … that Tribunal counsel was operating on the basis of some foregone conclusion or predetermined outcome in terms of what had happened during the GSM2 process.” He made many further statements to similar effect. In addition, he also referred to “the hostile and inappropriate treatment” that he was exposed to during the period of his engagement with the Tribunal, which quite evidently coloured his decision to withdraw from any further cooperation with it on a voluntary basis. Finally, it is of interest to note that his own personal view of the integrity of the process was that Esat Digifone had won the licence on merit.

10. It was in respect of this evidence, as well as on certain documentation, such as attendance notes of the meetings referred to and some other correspondence, that the appellant had wished to cross-examine the professor. His purpose for so doing was that if evidence of bias on the part of the Tribunal’s counsel could be demonstrated, then that fact could have an influence on the view of the Sole Member as to how he should assess, evaluate and weigh the entirety of the evidence as given.

11. The respondent made the impugned rulings on the 2nd November, 2010. By the first two rulings, and with reference to his previous ruling in March of that year, the Sole Member prohibited the appellant’s counsel from cross-examining Professor Andersen in relation to a) meetings and b) notes of meetings between members of the Tribunal’s legal team and the professor or his representatives. By his third ruling, the Sole Member limited to five hours the time available to Mr. O’Brien for the cross-examination of Professor Andersen on all other matters; in fact, as the timeline shows, the actual period extended to about six hours for that cross-examination.

High Court Proceedings:
12. On the 8th November, 2010, Mr. O’Brien was granted leave to seek judicial review in respect of the rulings so made by the Sole Member. He sought an order of certiorari quashing the decisions as made, as well as an order of mandamus directing the Sole Member to permit the cross-examination of Professor Andersen in relation to the matters identified. Mr O’Brien further sought various other declaratory reliefs. Of some significance was the fact that Mr. O’Brien also sought an injunction preventing the Sole Member from publishing the second part of his final report until such time as the appellant had been permitted to cross-examine Professor Andersen as he wished.

13. Hedigan J., by his judgment delivered on the 1st February, 2011 ([2011] I.E.H.C. 30), declined to grant any relief and dismissed the application in its entirety. Relying on the case of Meadows v Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701, the learned judge held that the courts have limited scope to interfere with the exercise of discretion by an administrative body. He also noted the particular deference afforded to the decisions of Tribunals of Inquiry.

14. Hedigan J. stated that the right to cross-examine may be curtailed by a Tribunal of Inquiry in certain circumstances (Maguire v. Ardagh [2002] 1 I.R. 385). He observed that the case law in this area relates to the right of a person to cross-examine one’s accuser; here the appellant sought to cross-examine a witness who not only was not an accuser, but was a person who had in fact previously given evidence favourable to him. Thus the right asserted is one which can only arise in certain limited circumstances. A clear and compelling case would have to be made before the High Court will intervene in a Tribunal’s discretion regarding the procedures for the taking of evidence before it. The learned judge noted that no satisfactory answer had been given to the question of what Mr. O’Brien hoped to gain by questioning the professor further on the bias issue, as he had already stated that the lawyers in question were biased and had explained in some detail what he meant by that.

15. Balanced against this was the reality that if such cross-examination was to be permitted, the Sole Member would then have been obliged, in the interests of fairness and pursuant to the rule of audi alteram partem, to hear evidence from the Tribunal’s own lawyers. This in turn would have required the Sole Member to act as a judge in his own cause. Given the inherent difficulties which this would raise in relation to the perception of the Sole Member’s impartiality, the learned judge held that there were, at the very least, strong grounds for the respondent adopting the course which he did. As judged against the speculative and limited right of the appellant, Hedigan J. held that the refusal to allow cross-examination on the bias issue was reasonable, was grounded on relevant evidence and thus was not amenable to judicial review.

16. Finally, the trial judge was of the view that these considerations applied even more strongly in relation to the challenge of the restricted time period allowed for the cross-examination of the professor, whose presence had been obtained only after extraordinary difficulties. There was limited time available for the taking of his evidence and no guarantee that he would ever subsequently be available to give evidence again. Although he had indicated a willingness to return to Ireland in the second half of 2011, that would have delayed publication of the final report by up to a year. Accordingly, the learned judge held that the decision to limit the cross-examination to five hours was eminently reasonable in the circumstances presenting and was as a result fully consistent with fair procedures.

Appeal and Subsequent Developments:
17. By Notice of Appeal dated the 3rd February, 2011, the appellant moved to this Court from the whole of the judgment and order of Hedigan J.: having done so, he twice applied unsuccessfully for a priority hearing. At this point of the proceedings there was no stay or interlocutory order in place preventing the publication by the respondent of his report, nor did the appellant seek either. As noted, Part II of the final report was published in March, 2011, in respect of which no judicial review or other legal challenge was taken even by Mr. O’Brien. Thus the report and its content stand as published.

The Mootness Issue:
18. On this issue being raised, both the respondent and the appellant, in October, 2015 and November, 2015, respectively, filed supplemental submissions addressing this question of mootness. As I believe the entire appeal should be disposed of on this issue, it is worth recounting in brief the submissions made in this regard.

Submissions of the Respondent:
19. The respondent submits that the appeal is manifestly moot, that it does not raise any issues of exceptional public importance and that there are no special reasons in the public interest for hearing the appeal: thus there is no basis for departing from the normal rule in respect of a moot appeal and the appeal should be dismissed.

20. The respondent summarises what it regards as the nine core principles which arise from the doctrine of mootness. First, the Supreme Court will not decide an issue or an appeal which is moot (Irish Family Planning Association v Youth Defence [2004] 1 I.R. 374). Second, the respondent points to the circumstances in which the Irish courts have held an appeal or issue to be moot, including, inter alia, where it is such as to “completely lose ‘its character as a present, live controversy’” (per Murray C.J. in O’Brien v The Personal Injuries Assessment Board [2007] 1 I.R. 328), where “the eventual decision [of the court] would be of no practical significance to the parties” (per Hardiman J. in Goold v Collins [2005] 1 I.L.R.M. 1), or where “there is no live issue remaining between the parties” (per Denham J. in Dunne v Governor of Cloverhill Prison (Unreported, Supreme Court, 21st May, 2009)). Third, although the general practice of the Court is to decline to decide moot cases, in exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due and proper administration of justice determine such a question (per Murray C.J. in Irwin v Deasy (Unreported, Supreme Court, 14th May 2010)). Fourth, the discretion to hear an appeal where there is no longer a live controversy between the parties should be exercised with caution, and academic or hypothetical appeals should not be allowed (Ibid).

21. Fifth, in considering whether to exercise its discretion to hear a moot appeal, the Court may have regard to a number of considerations, including the rationale of the mootness doctrine as expressed by the Supreme Court of Canada in Borowski v Canada (1989) 1 SCR 342 (para. 43 infra). Sixth, the Court may also have regard to the constitutional dimension to the mootness doctrine in deciding whether to exercise its discretion to hear a moot case (Farrell v Governor of St. Patrick’s Institution [2012] I.E.H.C 429). Seventh, the Court may have regard to the constitutional right of appeal (per Murray C.J. in O’Brien v The Personal Injuries Assessment Board). Eighth, the Court may consider whether the issue or a similar issue concerning the appellant is likely to arise in the future such as would make it important to determine the issue at this stage (Goold v Collins; O’Brien v The Personal Injuries Assessment Board). Finally, the Court may also have regard to whether the impugned actions would “evade review” if the Court declines to hear a moot issue (Goold v Collins).

22. Applying the above principles, the respondent submits that it is necessary for the Court to determine whether the appeal is moot, and, if so, whether it raises an issue of exceptional public importance or whether there are special reasons in the public interest for the Court to exercise its discretion to hear the appeal. As regards the first issue, it is submitted that the appeal is “plainly moot” as:-

“The clear objective of the proceedings was to seek various reliefs relating to the evidence of Mr. Andersen for the purpose of delaying or preventing the publication of Part 2 of the Final Report of the Respondent. No application was made on behalf of the Appellant to the High Court or to this Court for injunctive relief to restrain the Respondent from publishing Part 2 of his Final Report until such time as he had been permitted to conduct the cross-examination of Mr. Andersen … The examination and cross-examination of Mr. Andersen thus proceeded and was duly completed and, in March 2011, the Respondent published Part 2 of his Final Report. Moreover and critically in the context of the mootness issues which arise, that Report – including each of the findings of the Respondent which have a connection with the evidence of Mr. Andersen – was not the subject of any application for judicial review by the Appellant.”

23. The respondent also stated that it is equally clear that the appeal does not raise any issue of exceptional public importance and that there are no special reasons in the public interest for hearing the appeal. On the contrary, the public interest is clearly served by dismissing the appeal. The respondent notes that the issues grounding the appeal arise out of the management and control of the procedures of a Tribunal of Inquiry which published its final report in March, 2011. The cross-examination of Professor Andersen concluded on the 5th November, 2010. The respondent again emphasises that Part II of the final report was not the subject of an application for leave to apply for judicial review by the appellant; thus, even from the perspective of the appellant, the appeal cannot be said to raise any exceptionally important issues as he has not challenged any of the respondent’s findings as contained in the Part II of the report. Furthermore, the respondent states that even if the appeal could be regarded as raising an important point of law, the jurisprudence of this Court illustrates that this fact alone is not of itself a reason to bring it within the exceptional category in which a moot appeal will be heard (Lofinmakin v The Minister for Justice, Equality and Law Reform [2013] 4 I.R. 274).

24. The respondent distinguishes the cases of O’Brien v The Personal Injuries Assessment Board and Okunade v The Minister for Justice, Equality and Law Reform [2012] I.E.S.C. 49 on the basis that the particular circumstances which led the Court to hear the moot appeals in those cases do not exist in the instant case. The respondent points in particular to the fact that the present case does not relate to the obligations owed by a statutory body and that there is no reasonable possibility or significant risk that the issues which the appellant seeks to ventilate will arise again in the future. Finally, the respondent submits that for reasons for judicial economy, the Court should not allocate scarce judicial resources to resolve a moot issue (P.V. v Courts Service [2009] 4 I.R. 264).

Submissions of the Appellant:
25. The appellant delivered supplemental submissions in response to those filed by the respondent. He first submitted that before considering the issue of mootness, the Supreme Court should take into account the speed with which he sought to advance the appeal and the fact that the Supreme Court was unable to deal with it for some time due to a backlog of appeals. He draws attention to the fact that the judgment and order of Hedigan J. were delivered on the 1st February, 2011; the Notice of Appeal was filed on the 3rd February, 2011, with unsuccessful applications for priority hearings being made on the 10th February and the 3rd March, 2011.

26. The appellant acknowledges that there is no right of appeal from the findings of a Tribunal of Inquiry, such findings being “legally sterile”. He sets out the core principles of judicial review as articulated by Denham J. in Meadows v The Minister for Justice, Equality and Law Reform [2010] 2 I.R. 701 at pp. 743-744.

27. Mr. O’Brien describes the doctrine of mootness as “a well-established and well developed feature of the jurisprudence of the Irish Courts” and refers to what he considers as the “most pertinent” Supreme Court judgments on the topic, including Murphy v Roche [1987] I.R. 106, Irish Family Planning Association, Dellway Investments Ltd v NAMA [2011] 4 I.R. 374 and Lofinmakin. It is submitted that the doctrine of mootness is not constitutionally based, but rather is related to the principle of judicial restraint. It is further stated that the doctrine is one of common law origin and is founded on the basis that courts lack power to decide cases where no dispute exists.

28. The appellant explains the rationale underlying the doctrine of mootness by reference to the judgment of Hardiman J. in Goold v Collins, where the learned judge referred at p. 16 of the report to the leading Canadian case of Borowski v Canada (on which see para. 43 infra), and my own judgment in Lofinmakin (at pp. 290-291 of the report). The appellant also refers to the comments of Murray C.J. in O’Brien v The Personal Injuries Assessment Board regarding the potential impact of the constitutional right of appeal on the doctrine of mootness.

29. Mr. O’Brien sets out the test for mootness by reference to much the same case law as the respondent, including Goold v Collins, O’Brien v The Personal Injuries Assessment Board, Irwin v Deasy and Lofinmakin. Even where the doctrine applies, it is submitted that the courts will deal with the issue if “the overriding consideration of doing justice” requires it (Murphy v Roche [1987] I.R. 106 at 110) or one of the parties has “a material interest in a decision on a point of law of exceptional public importance” (Irwin v Deasy). The appellant says, by reference to case law, that the manner in which the doctrine of mootness has been applied in practice shows that the courts will consider carefully any attempt to deny a party access to the courts on this ground. He also refers to the summary of recent developments in the doctrine of mootness as set out by the Court of Appeal (Hogan J.) in McDonagh v Governor of Mountjoy Prison [2015] IECA 71.

30. As can be seen, there is little dispute between the parties as to the principles applicable to this particular doctrine. Where they diverge is in relation to the application of those principles in this case. The appellant submits that the fact that he did not seek to judicially review Part II of the final report is of no relevance to these proceedings (O’Callaghan v Mahon [2008] 2 I.R. 514).

31. Applying these principles, the appellant makes the following submissions: (a) that he has a constitutionally guaranteed right of appeal to this Court; (b) that he sought to advance the appeal as quickly as possible subject to the constraints stemming from the backlog of Supreme Court appeals; (c) that this Court has already recognised the importance of this appeal by not transferring it to the Court of Appeal; (d) that the doctrine of mootness is but a rule of judicial practice; (e) that the impugned decision remains a live one as the relationship between the parties has not yet concluded; (f) that the respondent’s submissions fail to take into account the form and nature of the proceedings, i.e. a challenge to a Tribunal of Inquiry; (g) that the relief claimed is not a bar to a successful appeal simply because the respondent has reported as his work is still ongoing vis-à-vis the appellant; (h) that if the Court does not hear the appeal there will be no opportunity for further review of the issues in actual cases; (i) that the character and status of the respondent is important both in terms of public confidence in its inquiry and its impact on the right to cross-examine witnesses in other public and private inquiries; (j) that a decision of this Court on the matters under appeal would not be advisory in nature as it goes to the heart of the manner in which the inquiry was conducted, this having an impact both on the final report and the costs orders in this case; (k) that 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; and (l) that the issues are not hypothetical or academic because of the direct impact the appeal would have on the appellant’s legal rights, namely his constitutional right to fair procedures.

Decision:
32. For a very considerable period it has been the practice of the courts to refuse to entertain a case, or an issue within a case, where either or both can correctly be classified as “moot”. This rule has a similarity with the practice of judicial restraint, which means that a constitutional point will be deferred until other issues, whether arising at common law, under statute or otherwise, are decided upon, and if such determination should resolve the dispute in question, then the constitutional issue will not be determined at all (See Cooke v. Walsh [1984] I.R. 710, Murphy v. Roche [1987] I.R. 106, McDaid v. Sheehy [1991] 1 I.R. 1 and White v. Dublin City Council & Ors [2004] 2 I.L.R.M. 509). It also has a similarity with the doctrine of locus standi but differs from it in that the question of interest is determined at the commencement of proceedings, whereas the issue of mootness remains a live issue throughout its duration. Therefore, whilst there is some inter-relationship between these concepts, it is important to remain conscious of their individual identity.

33. In most systems of law there exists a notion of mootness, but its precise basis may vary as between the common law, applicable in this jurisdiction, statutory or legislative regulation, or even at constitutional level (e.g. Section 2 of Article III of the US Constitution). Irrespective of its foundation, however, it has a common rationale in that its purpose is to enhance the efficiency of the judicial role, and via that process to better and more effectively serve those litigants who truly have justiciable issues for resolution. In addition, the rule perhaps has greater importance in an adversarial system of law than in the pure civil law world. This is because the discharge of the judicial function is best performed where the reference point is focused on resolving defined issues, in a concrete and definite legal setting. Therefore the courts, based on a deep rooted and long standing policy, have always declined to offer advisory opinions, or opinions which are purely abstract or hypothetical. Whilst there are some limited exceptions in this respect, these are specifically provided for either at statutory or constitutional level. Finally, the Article 26 reference procedure is somewhat of a hybrid situation in that whilst binding, it does not have the evidential scaffolding of an inter partes action.

34. In brief terms a case will be classified as moot where there is no longer any legal dispute between the parties, or where the decision will not have the effect of resolving some controversy affecting or potentially affecting their rights. In referring to this doctrine, Hardiman J., in Goold v. Collins ([2005] 1 I.L.R.M. 1), cited the following passage from Tribe’s American Constitutional Law (3rd Ed., New York 2000), at para. 3 – 11:-

“…mootness doctrine centres on the succession of events themselves, to ensure that a person or group mounting a constitutional challenge confronts continuing harm or a significant prospect of future harm. A case is moot, and hence not justiciable, if the passage of time has caused it completely to lose ‘its character as a present, live controversy of the kind that must exist if the Court is to avoid advisory opinions or abstract propositions of law (Hall v. Beals 396 US 45 (1969))…”

35. Of course, Goold v Collins was not the first case in this jurisdiction where the rule was referred to and applied. In a constitutional action where the validity of a statutory provision was in issue, O’Dalaigh C.J., in McDonald v. Bord na gCon [1964] I.R. 350, said the following at p. 356:-

“Moreover, while the constitutional validity of the statute has to be determined by reference to the statute’s general application, I must doubt whether it would be proper to pronounce a statute repugnant to the Constitution except in a case where the specific facts of that case themselves exemplified the repugnancy complained of.”

“There can be no doubt that this Court has decided on a number of occasions that it must decline, either in constitutional issues or in other issues of law, to decide any question which is in the form of a moot and the decision of which is not necessary for the determination of the rights of the parties before it.”

36. In Lofinmakin v. The Minister for Justice, Equality and Law Reform & Ors [2013] 4 I.R. 274, having reviewed most of the significant judgments in this area, I attempted to summarise what the resulting position was, as deducible from such authorities, relative to the rule itself. The following was stated at para. 82;-

“82. From the relevant authorities thus reviewed and leaving aside the issue of costs which is dealt with separately (para. 102, infra et seq.), the legal position can be summarised as follows:
(i) a case, or an issue within a case can be described as moot when a decision thereon can have no practical impact or effect on the resolution of some live controversy between the parties and such controversy arises out of or is part of some tangible and concrete dispute then existing;

(ii) therefore, where a legal dispute has ceased to exist, or where the issue has materially lost its character as a lis, or where the essential foundation of the action has disappeared, there will no longer be in existence any discord or conflict capable of being justiciably determined;

(iii) the rationale for the rule stems from our prevailing system of law which requires an adversarial framework, involving real and definite issues in which the parties retain a legal interest in their outcome. There are other underlying reasons as well, including the issue of resources and the position of the court in the constitutional model;

(iv) it follows as a direct consequence of this rationale, that the court will not – save pursuant to some special jurisdiction – offer purely advisory opinions or opinions based on hypothetical or abstract questions”.

37. As appears from the Statement of Grounds in the instant case, relief in the nature of injunctive and mandamus orders was sought, as well as a number of declaratory orders. It seems self-evident, without having any regard to the doctrine of mootness, that following the publication of the report, the reliefs first mentioned can no longer be in play. Quashing the decision of 2nd November, 2010, at this point could not affect the report and quite obviously it would be utterly meaningless to compel the Sole Member to allow Mr. O’Brien now to conduct the unlimited cross-examination which he sought at the time. Therefore, what is at issue is the claim for a declaration that in making the rulings above noted, the Tribunal acted in breach of Mr. O’Brien’s fair procedure rights.

38. In the absence of any challenge to the report, an obvious but important question immediately arises, which is what legal value would such a declaration now have for the appellant? How and in what way could it be legally used, particularly against the background of the proceedings which have as their essence an attempt to prohibit the publication of the report until the unfairness alleged has been remedied, or, in other words, until the rulings were stood down? The report has now been published without this happening. It is tremendously difficult to see how Mr. O’Brien could challenge it domestically at this point in time; even if that somehow came about, it would have to be in a different set of proceedings. So what utility, in a legal context, could such a declaration have? It seems to me that the answer is none.

39. From the summary of his submissions above outlined (para. 31 supra), Mr. O’Brien argues that the issue remains a live one, inter alia, by reason of his ongoing relationship with the Tribunal which has not yet concluded, and that the issue raised is important for how inquiries of this nature are conducted in the future, with such having an impact in the instant case on both the final report and on the question of costs.

40. It seems to me that the point last relied upon is truly what is at the heart of the efforts to continue with this appeal. Such, however, cannot be permitted. Such could only be categorised as an attempt to collaterally undermine the report, in circumstances where, in fact, no such direct challenge to that end has ever been made. This is a form of abuse which should not be entertained. On that basis alone, I would decline to permit a continuation of the proceedings.

41. Even if such should not be the case, I am of the view that, in accordance with the relevant principles, the issue must also be classified as moot. The fair procedures point in question had a factual context when the proceedings issued: therefore no question of standing arises. However, due to time, events and circumstances that necessary and essential evidential foundation has evaporated. No matter what declaration is now obtained, the evidence of Professor Andersen, both in its direct and cross-examining effect, cannot be revised or re-visited. It is an event which is over and finished: it is in the past. To use the legal phraseology of the rule, there is no longer a live issue which could impact on the terms, findings or opinions made or expressed in the report. The proceedings are devoid of purpose to that end. Again, looking at what was said in Lofinmakin, the restriction imposed on the cross-examination is no longer a source of continuing controversy between the parties and it has lost its character as a lis. In fact, the primary function of the cause of action has thus disappeared. It would be an exercise in legal futility for it to continue. I therefore conclude that the issue is moot.

42. This rule, of course, is not absolute, and exceptions to it have been recognised from time to time. This therefore becomes the second aspect of the two step analysis involved in the overall process. One must thus consider whether, despite the finding of mootness, this Court should nonetheless go on and determine the appeal on its merits. Even if it should, however, it is important to point out that the issue in question is not thereby re-classified: rather, it remains moot, but for justifiable cause the Court would intervene nonetheless. However, for reasons which I am about to state, I would not entertain the appeal.

43. At the level of principle, the approach to exceptionality is informed by the rationale for the policy underlying the rule, which Goold accepted as having been correctly set out in Borowski v. Canada. The court in that case identified three bases for the rule: firstly, that a full adversarial context is fundamental to its legal system, as it is with ours; the second matter relates to the most efficient deployment of scarce judicial resources, and the third can loosely be described as a separation of powers point. The Supreme Court of Canada then continued:-

“…The court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not support the same conclusion and the presence of one or two of the factors may be overborne by the absence of a third, and vice versa.”

44. Adding to these broad general points I attempted, again in Lofinmakin, to further articulate the circumstances in which it would be appropriate for a court to exercise its discretion and hear and determine a moot point. Para. 82 of the judgment continued as followed:- (see para. 36 supra)

“82.
(v) that rule is not absolute, with the court retaining a discretion to hear and determine a point, even if otherwise moot. The process therefore has a two step analysis, with the second step involving the exercise of a discretion in deciding whether or not to intervene, even where the primary finding should be one of mootness;

(vi) in conducting this exercise, the court will be mindful that in the first instance it is involved in potentially disapplying the general practice of supporting the rule, and therefore should only do so reluctantly, even where there is an important point of law involved. It will be guided in this regard by both the rationale for the rule and by the overriding requirements of justice;

(vii) matters of a more particular nature which will influence this decision include:-


(a) the continuing existence of any aspect of an adversarial relationship, which if found to exist may be sufficient, depending on its significance, for the case to retain its essential characteristic of a legal dispute;

(b) the form of the proceedings, the nature of the dispute, the importance of the point and frequency of its occurrence and the particular jurisdiction invoked;

(c) the type of relief claimed and the discretionary nature (if any) of its granting, for example, certiorari;

(d) the opportunity for further review of the issue(s) in actual cases;

(e) the character or status of the parties to the litigation and in particular whether such be public or private: if the former, or if exercising powers typically of the former, how and in what way any decision might impact on their functions or responsibilities;

(f) the potential benefit and utility of such decision and the application and scope of its remit, in both public and private law;

(g) the impact on judicial policy and on the future direction of such policy;

(h) the general importance to justice and the administration of justice of any such decision, including its value to legal certainty as measured against the social cost of the status quo;

(i) the resource costs involved in determining such issue, as judged against the likely return on that expenditure if applied elsewhere; and

(j) the overall appropriateness of a court decision given its role in the legal and, specifically, in the constitutional framework.”

45. Applying these principles it seems to me that the primacy of the rule must be upheld unless, for special cause and in exceptional circumstances, the Court is satisfied that there are compelling reasons why a departure from the rule should be entertained. The case law where this particular point has been canvassed and discussed supports this view.

46. A striking statement in this context appears in the judgment of Murray C.J. in Irwin v. Deasy, where the Chief Justice stated:-

“The general practice of this Court is to decline, in principle, to decide moot cases. In exceptional circumstances where one or both parties has a material interest in a decision on a point of law of exceptional public importance, the Court may in the interests of the due and proper administration of justice determine such a question.

However, the discretion to hear an appeal where there is no longer a live controversy between the parties should be exercised with caution and academic or hypothetical appeals should not be heard. Exceptions may only arise where there is a question of exceptional public importance at issue and there are special reasons in the public interest for hearing the appeal.”

47. It is of course true that there have been a number of cases in which, notwithstanding a finding of mootness, the Court has considered the underlying issue. On closer analysis however, it is clear, at least with some of these, that ultimately the issue in question was not regarded strictly as being truly moot. O’Brien v. Personal Injuries Assessment Board (No.2) [2007] 1 I.R. 328 is probably a case in point (paras. 19, 21 and 22 of the judgment). The view of Denham C.J. in Dellaway was that the fair procedures point at issue was not in fact moot (para. 92 of the judgment); there are many other such examples.

48. On the other hand it is also clear that the exceptionality route has been invoked in its own right in a number of situations. Okunade & Ors v. Minister for Justice, Equality and Law Reform & Ors [2012] 3 I.R. 152 is a good example of where one of the factors in favour of determining a moot was clearly evident. In what Clarke J. described as “those unusual circumstances”, this Court proceeded to consider the underlying issue as “…it seemed to the court that any case in which this issue might arise was likely to become moot in a relatively short period of time, for the issue concerns the approach that should pertain in the hearing of a leave application. Every case of this type will, therefore, become moot when the leave application is heard”. Unless thus entertained, the point at issue would continue to evade review: such a factor, in accordance with authority, is ample justification for operating the exception. Cases such as Farrell v. Governor of St. Patrick’s Institution [2014] 2 I.L.R.M. 341 and McDonagh v. Governor of Mountjoy Prison [2015] IECA 1 can be likewise regarded, subject only to the observations of Murray C.J. in O’Brien that the issue of mootness in Art. 40.4.2° cases “is coloured” by the single issue involved – the legality of detention – and the single remedy available – release.

49. Another, but different, type of excusing factor is evident from Irwin and from O’Brien. Although the case between the judgment creditor and the judgment debtor (Mr. Irwin) was settled without affecting the rights of the co-owner of the property (his estranged wife), thus rendering the contentious issue moot, the Court nonetheless proceeded to hear the point; it did likewise in O’Brien, and possibly would have done so even if, in reality, there was no longer a live controversy between the parties. Whether that be the case or not, the Court proceeded as it did because the underlying issue in both cases was of significant general importance, in that the High Court judgment appealed from in Irwin affected the powers of the Collector General to collect tax from defaulting taxpayers, whilst the High Court declaration in O’Brien constituted what PIAB saw as a statutory inhibition to fulfilling its functions under the Personal Injuries Assessment Board Act 2003. Therefore, there were issues in play which greatly overreached the individual case, and which had a widespread consequential effect on the statutory functions of public bodies.

50. I am conscious that my view on this point does not prevail and that in the present case the majority of my colleagues agree with the Denham C.J., who feels that the exceptional jurisdiction should be invoked. The factors upon which she arrived at that decision are set out at para. 26 of her judgment.

51. The reasons for the conclusion which I have reached are as follows:-

(i) it seems clear from the authorities that the commencement of proceedings is the juncture for determining standing, but that it is not the end point for determining mootness. Tribe at para. 3–11 describes the position:-
“Thus, the [U.S.] Supreme Court has recognised that mootness can be viewed as the doctrine of standing set in a timeframe: the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)”;
(ii) the fact that Mr. O’Brien was unsuccessful in obtaining priority to move his appeal to this Court is irrelevant, as such circumstances were entirely superseded, firstly, by his failure to apply for injunctive relief prior to the publication of the report, and, secondly, by his decision not to legally challenge the content of the report, either at the time of or subsequent to the publication date;

(iii) the issue in question, arising peculiarly within the circumstances outlined, is entirely personal as between Mr. O’Brien and the Tribunal, and almost certainly will never arise again in any like or comparable circumstances;

(iv)there is no continuing harm or impact which he faces at present or likely to face in the future from the November, 2010 decision, unlike, for example, the circumstances in Condon & Ors v. Minister for Labour and the Attorney General [1981] I.R. 62;

(v) the challenge sought to be pursued on this appeal does not seek to vary, alter or change the law on fair procedures, nor is there any contest but that such fairness must be afforded to individuals such as Mr. O’Brien; the level and extent of this will, of course, depend on circumstances. There is thus no important point of law at stake which requires clarification;

(vi) the factors which influenced the decision in Okunade and the decisions in Farrell and McDonagh simply do not arise;

(vii) there has never been a suggestion that the Sole Member requires the point to be determined, or foresees a continuing problem for either his Tribunal or for Tribunals in general in the absence of having the matter resolved by this Court;

(viii) whilst there is a constitutional right of appeal, it has always been the case that such a right is subject not only to statutory regulations but also to judge-made principles designed to serve justice. As a starting point, the Notice of Appeal sets the parameters; principles such as equitable laches, the rules in Hendersen v. Hendersen (1843) 3 Hare 100 and in Barry v. Buckley [1981] I.R. 306, abuse of process more generally, and O. 19, rr. 27 and 28 of the RSC are but examples; and, finally,

(ix) save for Caldwell, which is explained in Lofinmakin (para. 108 at pp. 306-307 of the report), there is no other authority which the Court has been referred to where a substantive appeal has been embarked upon simply to determine the cost question.

52. In these circumstances, I am driven to the conclusion that this is a fact specific case which has no overarching consequences, unlike, for example, O’Brien or Irwin. If matters of individual fact are sufficient to invoke the exceptional route, then the essence of the principle, its integrity and its very structure will potentially be undermined. That should be avoided save for special cause and compelling reason, neither of which exist in this case.

53. Accordingly, I would refuse to entertain the substantive appeal.