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  • judge on this issue to take such a phrase and to treat it in isolation as founding the essence of his decision is in my view to misread his judgment To suggest that the criteria for determining the instant challenge to the exercise by the Executive of its power to ratify the ESM Treaty can be determined on such a basis is simply not sustainable In fairness I should immediately say lest I appear to do an injustice to the plaintiff that his reference to and reliance upon this phrase may have been intended as a shorthand expression of his more general argument under this heading Therefore whilst the point has to be addressed the overall case has to be determined on the entirety of what the majority said and not simply on this passage Reverting to the particular argument for a moment the reason why I reject the suggested significance of the expression is that in the first place the judge himself expressly acknowledged that Finlay C J was the source of such phrase when giving the Court s judgment on the challenge to the SEA save for Title III thereof That remark as originally made was entirely appropriate to the context then under discussion by the Chief Justice At page 769 of the report the context appears t he capacity of the Council to take decisions with legislative effect is a diminution of the sovereignty of Member States including Ireland and this was one of the reasons why the Third Amendment to the Constitution was necessary Sovereignty in this context is the unfettered right to decide to say yes or no Therefore having transposed such remark it is not appropriate to assign or ascribe to it the determinative importance which has been suggested A much more representative version of the judgment of Walsh J is to be found at the end of p 780 and on pp 782 and 783 of the report What is stated there has been set out in the other judgments delivered and therefore I will not repeat them everyone is familiar with the key expressions from that and the other majority judgments such as the impermissibility of abdicating alienating surrendering or transferring such powers save as allowed by the Constitution It is clear from these passages that the learned judge was very much focusing on the freedom which the Constitution bestowed on the Government in deciding matters of foreign policy That freedom was to develop formulate and pursue policy and to change or adjust that policy as occasion required That freedom to exercise or not to exercise as the case may be in a particular way could not be abridged by the terms of an agreement binding on the Government and reached with a third party country or other entity It is true to say that some excerpts from his judgment may be capable of an interpretation consistent only with Ireland having an overriding control within the terms of any such agreement being one capable of exercise at all times and on all issues For the reasons given by O Donnell J and Clarke J I do not agree that such an interpretation is the correct one In fact Walsh J pointed out several agreements to which Ireland was a signatory where no such control existed and therefore could not be exerted In addition however if there should be ambiguity in this regard the words or expressions in question must be looked at and measured against the terms of Title III of the SEA which were the subject matter of the challenge Given the scope breadth and skeleton nature of the aspirations envisaged by that treaty and the demanded level of cooperation necessary to give effect to them it is understandable how it could be said that the core constitutional freedom in question at least in part was being surrendered Furthermore when a comparative analysis is conducted between Title III of the SEA and the provisions of the ESM Treaty the seismic distinction between both becomes instantly demonstrable Henchy J likewise viewed Title III as a vehicle to move foreign policy from a national to a Community level it constituted a fundamental transformation in the relations between participating states Such had the effect amongst others of entirely undermining the pre eminence of the common good which should prevail in all government questions of national policy Article 6 of the Constitution in conjunction with Article 5 and others thereof did not so allow It was one thing to consult with other States in the conduct of foreign policy but it was quite a different matter to enter into a binding agreement whereby the State was required to act in the sphere of foreign relations in a manner which would be inconsistent with constitutional requirements Such was not permitted Finally in this regard Hederman J was of the view that the Government could not submit or subordinate the exercise of its constitutional powers in this field to the advice or interests of other states as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies p 794 of the report All of the judicial observations made in Crotty must obviously be viewed against the Treaty provisions which the Court was called upon to examine such provisions committing the State and all future Governments to do the following 1 To endeavour to formulate and to implement a European foreign policy 2 To undertake to inform or consult the other Member States on any foreign policy matters of general interest not just of common interest so as to ensure that the combined influence of the States is exercised as effectively as possible through co ordination the convergence of their positions and the implementation of joint action 3 In adopting its position and in its national measures the State shall take full account of the position

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/e48b3cbe39e001c680257aa10054b93a?OpenDocument&TableRow=2.1 (2016-02-09)
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  • a view to achieving eventual European union p 785 It appears to me that this affirmation means that the State s right to conduct its external relations is part of what is inalienable and indefeasible in what is described in Article 5 as a sovereign independent democratic State It follows in my view that any attempt by the Government to make a binding commitment to alienate in whole or in part to other states the conduct of foreign relations would be inconsistent with the Government s duty to conduct those relations in accordance with the Constitution p 787 A perusal of Title III of the SEA satisfies me that each ratifying Member State will be bound to surrender part of its sovereignty in the conduct of foreign relations That is to happen as part of a process designed to formulate and implement a European foreign policy The freedom of action of each state is to be curtailed in the interests of the common good of the Member States as a whole p 787 4 10 In addition Hederman J came to the following view It appears to me that the essential point at issue is whether the State can by any act on the part of its various organs of government enter into binding agreements with other states or groups of states to subordinate or to submit the exercise of the powers bestowed by the Constitution to the advice or interests of other states as distinct from electing from time to time to pursue its own particular policies in union or in concert with other states in their pursuit of their own similar or even identical policies p 794 4 11 Before going on to analyse the reasoning of the majority of this court in Crotty there are some other aspects of the decision in that case which bear noting One feature of Crotty was a challenge brought to the validity of the European Communities Amendment Act 1986 the 1986 Act having regard to the provisions of the Constitution The terms of the SEA concerning foreign policy cooperation were not affected by the 1986 Act Given that there was a direct challenge to the constitutionality of the 1986 Act a single judgment of this court was delivered by Finlay C J For the reasons set out at pp 769 and 770 this court came to the view that the then European Community was a developing organism with diverse and changing methods for making decisions and an inbuilt and clearly expressed objective of expansion and progress both in terms of the numbers of its Member States and in terms of the mechanics to be used in the achievement of its agreed objectives 4 12 In that context Finlay C J went on to state the following Having regard to these considerations it is the opinion of the Court that neither the proposed changes from unanimity to qualified majority nor the identification of topics which while now separately stated are within the original aims and objectives of the EEC bring these proposed amendments outside the scope of the authorisation contained in Article 29 s 4 sub s 3 of the Constitution As far as Ireland is concerned it does not follow that all other decisions of the Council which now require unanimity could without a further amendment of the Constitution be changed to decisions requiring less than unanimity 4 13 Two aspects of that passage require comment First it is clear that absence of unanimity was not considered of itself to necessarily involve a transfer of sovereignty Some competences which had already been conferred on the then European Economic Community EEC on the basis of requiring a unanimous decision were changed as a result of the relevant provisions of the SEA so that decisions could be made on the basis of qualified majority voting That change was not of itself on the facts of Crotty found to involve a transfer of sovereignty It should however also be noted that Finlay C J cautioned against what might be described as a path of gradualism by noting that it did not follow that there could be a complete alteration in all cases of the requirement for unanimity without a transfer of sovereignty thus leading to a requirement for a change in the Constitution 4 14 In like vein Henchy J in that portion of the judgment concerned with foreign policy cooperation said the following at p 786 Those and other commitments expressed in Article 30 make manifest that although the approach to the ultimate aim of European Union is to be reached by a pathway of gradualism each Member State will immediately cede a portion of its sovereignty and freedom of action in matters of foreign policy National objectives and ideological positions must defer to the aims and decisions of an institution known as European Political Cooperation which is to work in tandem with the European Communities A purely national approach to foreign policy is incompatible with accession to this Treaty The methods of co operation between the Member States which hitherto have been informal aspirational or at most declaratory as under the Stuttgart Declaration now pass into a realm of solemnly covenanted commitment to the conduct of foreign policy in a way that will lead to European political union at least in the sphere of foreign policy In that respect Title III of the SEA is the threshold leading from what has hitherto been essentially an economic Community to what will now also be a political Community 4 15 Thus both the judgments of Finlay C J and Henchy J emphasised a cautionary approach to gradualism It does always need to be kept in mind that it is not permissible to do by four separate small steps that which could not be done in one giant leap However what persuaded Henchy J along with the majority to find that the ratification of the foreign policy cooperation elements of the SEA was inconsistent with the Constitution was that those provisions amounted to an immediate ceding of sovereignty and freedom of action in the matter of foreign affairs 4 16 On a narrow reading of some of the passages cited it might be said that this court in Crotty came to the conclusion that the overall architecture of the Irish Constitution does not permit the Government in exercise of its power to conduct the foreign policy of the State in accordance with Art 29 4 1 of the Constitution to enter into binding arrangements with other countries which would in any way have the effect of circumscribing Ireland s freedom of action in the foreign policy field For reasons which I hope to demonstrate it does not seem to me that such a conclusion can be found in the judgments of this court in Crotty If such were to be the proper analysis of the reasoning of the majority of this court in Crotty then I would respectfully disagree with it 4 17 The backdrop to Crotty is of course the constitutional architecture relating to executive power and the conduct of international relations Article 29 4 1 provides that the executive power of the State in or in connection with its external relations is to be in accordance with Art 28 exercised by or on the authority of the Government Art 28 2 of course provides that the executive power of the State is to be subject to the provisions of the Constitution exercised by or on the authority of the Government Thus the Constitution is explicit that in the conduct of the foreign policy of the State the Government is constrained by the provisions of the Constitution 4 18 Article 29 5 provides a number of specific examples of express constitutional constraints that apply to the Government in exercising its foreign policy or external relations mandate Article 29 5 1 requires that every international agreement to which the State becomes a member must be laid before Dáil Éireann while Art 29 5 2 provides that the State is not to be bound by an international agreement involving a charge upon public funds unless the terms of the agreement have been approved by Dáil Éireann The only exception to these later requirements applies where the relevant agreement is of a technical and administrative character Separately Art 29 6 provides that an international agreement is not to become part of domestic law unless so determined by the Oireachtas A fourth requirement is of a more general nature but nonetheless required by Art 28 2 and it might be expressed as being the requirement that an international agreement not infringe the terms of the Constitution 4 19 It is important to note therefore that the Constitution does not require as a matter of principle that all international agreements be put to the people for approval through a referendum It is only where an international agreement either indirectly or by design breaches the terms of the Constitution as it then stands that there is a requirement for an appropriate amendment to be made to the Constitution The question of whether an international agreement infringes the Constitution is ultimately a matter for the determination of the courts and in accordance with Art 34 4 6 the decision of this court in that regard is final and conclusive 4 20 The question of how the terms of a particular international agreement interacted with the terms of the Constitution was one of the issues facing this court in Crotty As described earlier the particular aspect of concern within the SEA was the requirements on the coordination of foreign policy It was on the facts of those requirements that this court found that Title III of the SEA amounted to a potentially impermissible transfer of sovereignty thus breaching the Constitution and in turn requiring a referendum 4 21 When speaking of international agreements it is of course necessary to distinguish a particular type of such agreement or Treaty to which the Constitution accords special status Article 29 4 6 grants a special status to the EU treaties in that acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union are deemed not to infringe the Constitution A similar provision Art 29 10 applies in respect of the Treaty on Stability Coordination and Governance in the Economic and European Monetary Union TSGC Thus the EU Treaties from time to time recognised by appropriate amendments to the Constitution are by definition consistent with the Constitution The only issue which arises in the light of Crotty is as to whether changes in the EU Treaties are of a type which would bring the scope of the competences of the EU beyond those which might be said to have been authorised by the Constitution in its then current form in a way which would render ratification of the new amending Treaty itself a breach of the Constitution Against the background of that general constitutional architecture it is next necessary to say something about the conduct of foreign policy 4 22 The Government is given a very wide discretion as to how to conduct the foreign policy of this State under the Constitution See Horgan v An Taoiseach 2003 2 I R 468 It would be a strange conclusion indeed if that broad discretion was to mean that the Government could not as a means of exercising that discretion and thus exercising its sovereignty enter into what must be the most usual way in which sovereign states exercise their sovereignty i e by agreeing with other sovereign states to pursue a specified policy in a specified way Many legitimate policy objectives which the Government in exercise of its constitutional entitlement to formulate and implement foreign policy might wish to pursue can only as a matter of practicality be achieved by entering into bi lateral or multi lateral treaty arrangements with other countries of like or similar mind with a view to securing specified ends 4 23 Obviously such treaties if they involve an exposure to financial obligations require the approval of the Dáil in accordance with Art 29 5 2 of the Constitution However subject to that requirement what limitations can properly be said to lie on the discretion of the Government to enter into international treaties 4 24 It seems to me that the limitation can be found in the language of the judgments of the majority in Crotty Walsh J at p 783 spoke of the limitation as being one which did not permit the Government to abdicate that freedom or to enter into binding agreements with other States to exercise that power in a particular way so to bind the State in its freedom of action in its foreign policy Henchy J at p 787 spoke of the Government not being permitted to alienate in whole or in part to other States the conduct of foreign relations Henchy J also spoke of Title III of the SEA as amounting to a fundamental transformation in relations between the Member States of the then European Communities while Hederman J at p 794 spoke of the limitation as being one which did not permit the Government to subordinate or to submit the exercise of the powers bestowed by the Constitution to the advice or interest of other states 4 25 On that basis it seems to me that the overall position is quite clear The Government enjoys a wide discretion under Art 29 4 to enter into international treaties subject only to the obligation to obtain the approval of the Dáil if there is a commitment to financial expenditure or that of the Oireachtas if it is considered necessary to change domestic Irish law so as to comply with obligations undertaken by the treaty concerned The limit on the discretion which the Government holds arises where the relevant treaty involves Ireland in committing itself to undefined policies not specified in the treaty and in circumstances where those policies which Ireland will be required to support are to be determined not by the Government but by institutions or bodies specified in the treaty It is an abdication alienation or subordination of policy formation and adoption which is not permitted A transference of the means of implementing a policy agreed by the Government and specified in the treaty concerned to an appropriate implementation institution or body may be permitted provided that it does not go so far as to amount in substance to an abdication alienation or subordination of the role of government under the Constitution 4 26 Very many international treaties involve an acceptance at the level of international law that Contracting States will be bound by certain obligations If in accordance with the policies of the institutions of the United Nations sanctions are imposed on a country in accordance with the UN treaties Ireland will be bound as a matter of international law to enforce those sanctions That would be so even if it were to transpire that the Irish Government was not entirely comfortable with the imposition of sanctions on the country in question However the underlying policy behind the imposition of sanctions by the UN including the circumstances in which a decision to impose sanctions might be adopted is one to which Ireland subscribed by joining the United Nations The implementation of that policy on the facts of any individual case is a matter which under the UN treaties is to be determined by the competent bodies within the UN Short of leaving the UN Ireland is bound to meet the obligations imposed by decisions made by competent bodies within the UN Many other examples could be given 4 27 Against that general background it is necessary to turn to the provisions of the ESM Treaty to which counsel for Deputy Pringle draws attention for the purposes of suggesting that ratification and acceptance of the Treaty by Ireland would amount to a constitutionally impermissible transference of sovereignty 5 The ESM Treaty 5 1 It will be necessary to touch on some aspects of the detail of the ESM Treaty and indeed certain aspects of that treaty which may not be absolutely clear in due course However the underlying structure of the Treaty can hardly be doubted The Treaty establishes what is described as an international financial institution given the name ESM As pointed out earlier the members of the ESM are the members of the European Union who are part of the euro zone The ESM Treaty contemplates that any other EU Member States who become members of the euro zone may join the ESM 5 2 The key objective of the ESM Treaty is as is pointed out in Art 3 to mobilise funding so as to provide support to members in financial difficulty where the provision of that support is indispensable to safeguard the financial stability of the euro area as a whole and of its Member States 5 3 It is at this stage appropriate to note some relevant features of the governance of the ESM The principal means of governance is by a Board of Governors which is provided for in Art 4 The minister responsible for finance of each member including therefore the Irish Minister for Finance is to be a member of the Board of Governors see Art 5 1 although there is provision for an alternate Most of the important decisions of the Board of Governors are required to be taken by what is described as mutual agreement which under Art 4 3 requires unanimity However there are two exceptions to that situation First Art 4 4 allows a decision to grant financial assistance to a member but only such a decision to be taken by a qualified majority of 85 where the Commission of the European Union and the European Central Bank both conclude that a failure to urgently adopt a decision to grant such assistance would be to threaten the economic and financial stability of the euro area It is unnecessary to consider the precise circumstances in which the derogation set out in Art 4 4 might apply It is acknowledged on behalf of the State that there may be circumstances where therefore a decision to give financial assistance as opposed to other types of decisions could be taken without Ireland s agreement The second manner in which it is possible that important decisions could be made without Ireland s agreement is to be found in Art 4 8 whereby a member who has failed to pay sums required under the Treaty will so long as the relevant sums remain outstanding lose its entitlement to vote 5 4 At least at a general level the overall situation seems clear There are limited circumstances which I have set out in which it is possible that a decision to provide financial assistance to a member may be made without unanimity and therefore by necessary implication without Ireland s agreement Also Ireland may lose its vote if Ireland is in arrears However in all other circumstances important decisions of the ESM must be taken by a unanimous decision of the Board of Governors including as it will if ratified by Ireland Ireland s representative 5 5 The mechanism adopted to allow the ESM to have the funds necessary to provide financial assistance is to require the members of the ESM to provide capital and to permit the ESM itself to engage in borrowing Capital is to be provided both on a paid in basis and an authorised basis The authorised capital stock is defined as 700 billion divided in a proportionate way between the Member States in a manner calculated in accordance with Annex I to the ESM Treaty see Art 8 1 Ireland s share is specified in Annex II as being 11 145 400 000 Likewise the so called paid in shares are to total 80 billion with a proportionate allocation to each member 5 6 Thus what is contemplated is that the members of the ESM will in a relatively short period of time contribute 80 billion to the ESM in a manner proportionate to their economies The members will also have an allocation of authorised capital which they can be called on to contribute in circumstances specified in the Treaty up to a total collective sum of 700 billion While there was some debate at the hearing about the precise borrowing provisions of the ESM Treaty there is no dispute but that the ESM is entitled to borrow although it is clear see Art 8 5 that the liability of each ESM member is limited to its share of the authorised capital stock at its issue price The exposure of each member is therefore limited to the value of its share of the authorised capital stock unless the authorised capital stock is increased in accordance with the terms of the Treaty 5 7 Such an increase can only occur in accordance with the terms of Art 10 which provides that the Board of Governors may review the adequacy of the authorised capital stock and can decide to alter that stock by making appropriate amendments both to the total and to the share of each member However it seems to me to be clear from Art 10 that such a decision of the Board of Governors can only enter into force after the ESM Members have notified the Depository of the completion of their applicable national procedures 5 8 As has been pointed out there are two circumstances in which a member such as Ireland might not have the opportunity to exercise an effective veto over a decision of the Board of Governors which is otherwise required to be unanimous While counsel for Deputy Pringle suggested that the provisions of Art 10 might be ambiguous it seems to me that its terms are clear In order for an increase in authorised capital stock to come into effect applicable national procedures require to be completed As an increase in authorised capital stock beyond the current sum of 700 billion would necessarily carry with it unless it arose solely out of an increase in the membership of the ESM an increase in the allocation of shares to Ireland with the consequential exposure of Ireland to an increased liability to meet any call on the as yet not paid in shares it follows that the Irish Constitution would require any such measure to be passed by the Dáil as part of Ireland s national procedures I therefore respectfully disagree with the analyses of the circumstances in which the authorised capital of the ESM can be increased as suggested by Hardiman J in his dissenting judgment If the Dáil does not approve an increase then Ireland as an ESM member will not be able to complete applicable national procedures and the increase will not be able to enter into force 5 9 It seemed to me that that analysis leads to two conclusions The first might arise in circumstances where the Irish Government is in favour of an increase in authorised capital so that the Minister for Finance of the day in his her capacity as a member of the Board of Governors of the ESM votes in favour of such a measure The second might arise where Ireland is against the proposed increase in authorised capital but is unable in practice to block it for one or other of the reasons identified earlier However in either eventuality the increase cannot come into effect until all members have completed their applicable national procedures which in practical terms means that it is not possible to increase the authorised capital of the ESM without amongst other things that measure being approved by Dáil Éireann and doubtless going through many other national procedures under the constitutional architecture of the other members 5 10 The combination of the limited liability of the members of the ESM to which reference has already been made and the fact that the authorised capital of the ESM cannot be increased without the approval of Dáil Éireann means in substance that the exposure of Ireland to the ESM is capped in the absence of approval by Dáil Éireann at the sum of 11 145 billion to which reference has already been made 5 11 I have already noted that there was some debate as to the precise parameters of the borrowing entitlement of the ESM One preliminary point should be noted There is already in being a funding mechanism termed the European Financial Stability Facility the EFSF While not material to the issues which this court has to decide it should be noted that the ESM Treaty contemplates that the ESM will take over the position of the EFSF Certain of the transitional provisions of the ESM Treaty therefore make reference to total sums by reference both to the position of the ESM and the EFSF Recital 6 of the ESM Treaty refers to the fact that the initial maximum lending volume of the ESM is set at 500 billion including any outstanding EFSF stability support The same recital notes that a reassessment of that amount is to occur prior to entry into force of this Treaty The recital further notes that the Board of Governors may increase the maximum lending volume in accordance with Art 10 5 12 Thereafter Art 10 does make provision for a review by the Board of Governors of the maximum lending volume Curiously however none of the articles of the Treaty actually make provision for a maximum lending volume as such the only reference being in the recital to which I have referred Further while Art 10 speaks of the Board of Governors carrying out a review of the maximum lending volume no operative provision for an increase in that volume is to be found in Art 10 although again Recital 6 seems to contemplate such a possibility Finally while that recital seems to contemplate a potential reassessment of the maximum lending volume prior to the Treaty coming into force no particular mechanism for the carrying out of that reassessment is specified such that it is difficult to see how such a reassessment could be operative in the absence of an amendment to the Treaty 5 13 There is therefore some confusion as to the precise manner in which the maximum lending volume is to operate However it seems clear that irrespective of how the maximum lending volume is determined the ESM can only give financial assistance out of money which it has either on the basis of capital contributed by its members or money obtained from financial institutions or on the financial markets Irrespective of how much the ESM borrows the members limited liability means that the exposure of those members cannot without the agreement of each member in accordance with the appropriate national acceptance procedures relevant to that member exceed the authorised capital attributable to the relevant member It follows that irrespective of the amount of borrowing that the ESM engages in Ireland s exposure is capped at the sum of 11 145 billion unless and until an approval of a larger capital allocation to Ireland is obtained from Dáil Éireann Extra borrowing by the ESM does not expose Ireland to any larger potential liability In those circumstances I found it difficult to see how there can be an argument that the borrowing entitlement of the ESM however the relevant provisions may be interpreted and operate can amount to a diminution in Irish sovereignty Ireland has no obligation to cover such borrowings beyond the monies already committed to the ESM by reference to Ireland s allocation of the authorised capital 5 14 There was argument at the hearing before this court on what might be said to be the practicalities of a situation which might develop where there was a demand for further funding for the purposes of the ESM which whether as a matter of accounting or as a matter of practicality derived from an inability to borrow further exceeded the current authorised capital I do not doubt that circumstances could arise where it might be perceived that there was a political imperative to increase the authorised capital of the ESM Doubtless in such circumstances there would be significant political pressure on Ireland to agree to an increase However it is clear that the Government of Ireland through the Minister for Finance as a governor of the ESM would in almost all circumstances retain the right to say no and in any event Dáil Éireann in all circumstances retains the right to say no 5 15 There are many circumstances in which both the Government and the Oireachtas may come under significant practical political pressure either domestically or internationally to adopt certain measures That is the way of the world However the architecture of the Irish Constitution is concerned with where the final decision lies The fact that institutions of government may as a matter of practical politics from time to time have to make decisions or bend their policies in the direction of the wishes of other countries does not of itself breach that model That constitutional architecture may be interfered with when the institutions of government enter into commitments which amount to an abdication alienation or subordination of the powers which the Constitution itself gives to those institutions 5 16 In the domestic field many schemes involve the expenditure of funds either as a result of legislation or administrative schemes for which the Dáil votes to allocate money Changes in such schemes can be a matter of significant political controversy Indeed as current conditions demonstrate it is often easier to resist pressure to implement a new scheme than to reverse a scheme already in place However such practical political effects do not alter the situation which is that the Oireachtas if it be legislation or the Government with the support of the Dáil if it be administrative retains the ultimate decision The fact that previous action i e the implementation of a scheme may make it politically harder to change policy is a practical reality However the constitutional architecture is preserved because the decision is made by those organs of government which the Constitution specifies 5 17 Against the background of that analysis of the principal features of the ESM Treaty I now turn to the arguments made on behalf of Deputy Pringle which suggest that Ireland s participation in the Treaty would amount to an impermissible diminution in Irish sovereignty 6 Deputy Pringle s Arguments 6 1 While a range of more detailed arguments were addressed on his behalf at the core of the case made by Deputy Pringle is an assertion that the Government cannot agree to provide and the Oireachtas cannot commit money for the purposes of the ESM Treaty because to do so amounts to the adoption of an irreversible policy not capable of being withdrawn from On that basis it is said that to use the words of Walsh J in Crotty Ireland loses by ratifying the ESM Treaty the right to say no 6 2 In putting forward that argument reliance was placed on a number of aspects of the Treaty First it was said that the Treaty is permanent Attention was drawn to the fact that there are no express provisions contained in the ESM Treaty permitting a member of the ESM to withdraw In that context it should be noted that that the State argued that there is an implied entitlement to withdraw That is an issue considered but for reasons set out in her judgment not dealt with by the trial judge and is one to which I will return 6 3 Second attention is drawn to the two bases already analysed on which it is possible that what might loosely be called a lending transaction in favour of a member can be put into effect without the support of each of the ESM members Counsel for the State accepts that that analysis is correct and that it is possible for a lending decision to occur without the support of Ireland in those limited circumstances Given that agreed position on the functioning of the ESM Treaty it is argued on behalf of Deputy Pringle that future policy in the sense of a decision as to whether money placed into the ESM by Ireland should be lent to other members will be capable of being determined without Ireland s agreement On that basis it is said that Ireland has committed not to change its policy in a way analogous to the manner in which Ireland had committed to adapt its foreign policy to those of the other Member States of the then European Community which was found to be constitutionally impermissible without a referendum in Crotty 6 4 Next attention was drawn to what were said to be the unlimited borrowing powers of the ESM I have already addressed the somewhat unclear provisions of the ESM Treaty in this regard However for the reasons then noted being that Ireland cannot by virtue of the limited liability of the ESM have any exposure in respect of ESM borrowings which exceed the amount of the authorised capital applicable to Ireland which the State would commit to in the ESM Treaty it follows that no question of loss of sovereignty under that heading can arise 6 5 Next reliance was placed on what was said to be the close interconnection between the TSGC and the ESM Treaty Indeed both Treaties are described in Recital 5 to the ESM Treaty as complementary in fostering fiscal responsibility and solidarity within the economic and monetary union It was said on behalf of Deputy Pringle that the ESM Treaty amounts therefore to a permanent and irreversible implementation of the policy behind both the TSGC and the ESM Treaty 6 6 Attention was also drawn to Art 3 of the ESM Treaty which sets out its purpose although as counsel for the State noted the title of Art 3 is purpose and not purposes The underlying requirement as has already been noted is that the giving of financial assistance is restricted to circumstances where it is considered that providing the relevant support is indispensable to safeguard the financial stability of the euro area as a whole and of its Member States It was thus argued that the permanent policy inherent in the ESM is one which has as its primary focus the stability of the euro area as a whole with the provision of monies to that end On that basis it was argued that a permanent and irreversible commitment by Ireland to such a policy is impermissible without the approval of the people on the basis of Crotty 6 7 Because the trial judge largely agreed with the submissions of the State on this aspect of the case it was perhaps hardly surprising that the written submissions filed on behalf of the State in this court were directed to a significant extent to expressing agreement with the relevant conclusions of the trial judge In that context it is appropriate to turn to that aspect of the judgment of Laffoy J which considered the sovereignty claim 7 The High Court Judgment 7 1 As described at para 111 of her judgment the nub of Deputy Pringle s argument before the High Court on this issue as it was before this court was that Ireland s participation in the ESM Treaty involved a transfer of sovereignty to the ESM because of the impact of such involvement on Ireland s budgetary economic and fiscal sovereignty involving it was said an open ended irreversible and permanent transfer of powers to an autonomous institution 7 2 In considering that matter at para 117 Laffoy J indicated correctly in my view that the starting point was to identify what power the Constitution confers

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  • Ireland and has also been addressed by the European Court on Human Rights For example in Price and Lowe v The United Kingdom 43185 98 there was an application alleging a violation of Article 6 of the Convention in connection with the length of the proceedings at issue Article 6 provides In the determination of his civil rights and obligations everyone is entitled to a hearing within a reasonable time The ECtHR reiterated that the reasonableness of the length of the proceedings must be addressed in the light of the circumstances of the case and having regard to the criteria laid down in the Court s case law in particular The complexity of the case The conduct of the applicant The conduct of the relevant authorities and The importance of what is at stake for the applicant in the litigation The Court held that the manner in which a State provides for mechanisms to comply with this requirement whether by way of increasing the number of judges or by automatic time limits and directions or by some other method is for the State to decide In this case the domestic law is that stated in Primor where the factors identified by Hamilton C J as set out previously are not dissimilar to the criteria set out in Price Decision 14 As indicated on the 17th July 2012 I would allow the appeals Consequently the proceedings may continue in the High Court for the following reasons Reasons Issues 15 On behalf of the appellants it was submitted that there were three issues to be determined i Is the delay an excusable delay It was accepted that it was an inordinate delay ii If it was not excusable does the balance of justice mean it should be struck out iii There was a free standing issue as to whether the interests of justice enable the claim to be dismissed I shall follow this sequence in giving my reasons In essence as it was accepted that there was inordinate delay by the appellants at issue was whether the delay by the appellants was excusable in all the circumstances of the case Facts 16 The dates as to the proceedings in these appeals are not in issue as they are not contested The dates when the proceedings were issued were delivered and the various steps taken are not disputed and have been set out earlier in this judgment Primor inordinate delay 17 The relevant law is as described above by Hamilton C J in Primor 18 Thus the first issue is whether there has been inordinate delay by the appellants in moving the proceedings The relevant time period to consider whether or not there was inordinate delay was from the commencement of the proceedings until the delivery of the statement of claim Both Comcast and Persona accepted that there was inordinate delay Thus the first aspect of the test under Primor was met Primor inexcusable delay 19 The second issue to address is whether the delay was excusable Claim of corruption 20 In considering this case the serious and important nature of the matters of corruption claimed by the appellants is a relevant factor 21 Thus for example the plenary summons issued by Comcast on the 10th October 2001 claims that the decision to award the licence to Esat is unlawful and void and damages are sought on a number of alleged bases including misfeasance in public office fraud and deceit 22 In the statement of claim delivered on the 3rd June 2005 Comcast claims Wrongfully and in breach of contract breach of duty and breach of statutory duty the Minister interfered with the integrity of the tender process He abused his public office by intervening in the tender process to ensure that the licence be awarded to Esat He accepted payments made by or on behalf of Esat and or Denis O Brien to ensure the award of the licence to Esat and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat In doing so he breached the Prevention of Corruption Act 1906 In representing the tender process and the award of the licence to Esat as having been the result of a fair and honest tender process he engaged in fraud and deceit and abused his office 23 In both of the statements of claim in each of the proceedings Comcast stated explicitly that it was unable to give full particulars of the wrongdoing of the Minister pending the conclusion of the investigations the subject of inquiry by the Tribunal 24 However on the basis of the information disclosed at the public hearings of the Tribunal to that date Comcast stated that it is clear that the Minister engaged in the following forms of wrongdoing a The Minister compromised the integrity of the tender process by breaching the guidelines for communications with bidders i On August 16th 1995 while the bids were being evaluated the Minister met with the chairman of one of the bidders the Persona Consortium and discussed that consortium s bid ii On September 15th 1995 the Minister met with Mr Tony O Reilly a representative of another bidder the AT T consortium and made reference to that consortium s bid iii In September 1995 the Minister met with Denis O Brien and suggested that IIU Nominees Limited IIU should become involved in the Esat consortium b The Minister his servants or agents disclosed or caused to be disclosed confidential information in relation to the bid process to Esat i Esat was informed of the fact that the competition structure was to be changed from a straight auction to beauty contest and of the extension of the bidding process prior to any such information being disclosed to the other bidders ii The Minister his servants or agents informed Esat of the contents of discussions with the European Commission in relation to the imposition of a cap on the licence fee Access to this information placed Esat at a significant competitive advantage iii The Minister his servants or agents disclosed or caused to be disclosed certain of the weightings to be applied to the evaluation of bids c The Minister modified the terms of and unlawfully interfered with the tender process to favour Esat i The Minister his servants or agents intervened to ensure the imposition of the cap of 15m on the licence fee ii The Minister amended the timing of key milestones in the tender process including the final date by which tender bids were to be lodged The original closing date for receipt of submissions of tenders was June 23rd 1995 This date was extended to August 4th 1995 The purpose and effect of the extension of this deadline was to favour Esat iii The evaluation methodology was modified with the aim and effect of favouring Esat iv The Minister intervened in the substantive evaluation process to ensure that the choice of successful bid was determined other than by reference to the recommendation of the project group v The Minister failed to conduct any or any appropriate assessment to satisfy himself as to the financial and or technical capacity of Esat prior to the award of the licence vi Notwithstanding the Minister s knowledge that the Esat bid lacked reasonable financial capability the Minister nonetheless awarded the licence to Esat vii The Minister expedited the selection and announcement of the successful bid and in so doing failed to have any or any adequate regard to the final evaluation report prepared by the external consultants AMI appointed to advise on the evaluation of bids which report did not identify a definitive winner The Minister made a public announcement on October 25th 1995 to the effect that the competition was won by Esat prior to the presentation of the final evaluation report to the Department and prior to the consideration of that report by the project group viii The Minister unlawfully procured or facilitated the entry of IIU into the Esat consortium after the submission by Esat of its bid on August 4th 1995 In so permitting a post submission amendment to the bid he breached the rules of the tender process ix The Minister was aware of the involvement of IIU in the bid prior to the award of the licence to Esat Nonetheless he failed to take any steps to assess the financial capacity of the Esat consortium to the detriment of the other bidders No assessment of the financial standing of IIU was conducted by the Minister his servants or agents until May 1996 prior to the signing of the licence agreement by the Minister x The Minister abused his position prior to the award of licence to Esat by intervening with the Electricity Supply Board ESB to ensure that Esat would be permitted to erect masts on ESB pylons d The Minister accepted improper payments made by Denis O Brien and or Esat which payments were made to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat i Subsequent to the announcement of the decision to award the licence to Esat the sum of US 50 000 was paid in December 1995 by Esat to an offshore account operated by David Austin a senior Fine Gael fundraiser The sum of 50 000 was paid by David Austin to Fine Gael on May 6th 1997 The said sum was repaid on March 2nd 1998 Fine Gael indicated that it could not accept the payment of the sum which Mr O Brien claimed to have been a donation from Esat Comcast contend that the payment of US 50 000 was intended by Denis O Brien to influence the outcome of the tender process and or to ensure that Esat was awarded the licence and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat ii The Minister accepted the sum of 100 000 paid by Denis O Brien in early mid 1996 The aim and effect of this payment was to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat iii In July 1996 Denis O Brien arranged for the payment of 150 000 to David Austin who transferred the sum of 147 000 to the Minister The aim and effect of the transfer of funds from Denis O Brien to David Austin and subsequently to the Minister was to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat iv Denis O Brien financed the purchase of a property in Mansfield England acquired by the Minister The aim and effect of the provision of finance for the acquisition of the Mansfield property was to influence the outcome of the tender process and or to reward the Minister for having intervened to ensure the awarding of the licence to Esat And Comcast reserve d the right to deliver further particulars hereof at any time before the trial of this action 25 In the statement of claim delivered by Persona on the 21st April 2006 it was claimed inter alia that about the 2nd March 1995 a conspiracy was hatched whereby the Minister for Public Enterprise its servants or agents and or the Minister conspired with another namely Esat its servants or agents to promote an inevitable competition result In the furtherance of the conspiracy the parties infiltrated or penetrated the competition and or in the alternative ignored or disregarded the competition process and or in the alternative utilised the process for the purpose of concealment and thereby ensuring the granting of the licence to Esat Also it is claimed that on dates unknown the Minister its servants or agents acting in purported exercise of their powers and functions and purportedly acting in the best interests of the public but the Minister acted unlawfully and maliciously and committed an act or acts or knowingly acted ultra vires or acted with reckless indifference and as such they deliberately or dishonestly abused the power conferred abused authority abused trust with the known consequences that it would cause injury and damage to Persona There is a claim for special damages There is also a claim for aggravated punitive and exemplary damages on the basis inter alia of the seriousness of the corrupt practices engaged in the fact that the corrupt practices were at the highest level i e they involved the Minister the fact that the Minister abused his office and his authority and breached trust the fact that the Minister used his office for a personal self serving purpose the fact that the corrupt practices were not merely opportunistic but were carefully planned and designed the fact that the Minister wantonly and unlawfully utilised his position of trust in disregard of the public interest Affidavits 26 The reasons for the delay by Comcast and Persona were stated on affidavit by Damien Young and William Jolley respectively 27 Damien Young deposed that at the time of issuing the proceedings Comcast believed that the award of the licence was wrongful He stated that the subject matter of these proceedings was also the subject matter of the Tribunal and that it had been anticipated that the Tribunal would have completed its work in relation to the licence module within a one year following the issuing of the plenary summons i e by June 2002 He deposed Unfortunately this was not the case When Damien Young deposed his affidavit on the 23rd June 2006 the licence module of the Tribunal had not yet been completed The module had been going on for years and was suspended for a time pending an appeal to this Court 28 Damien Young explained At the time of the issuing of the proceedings Comcast believed that the award of the second GSM licence to Esat was wrongful However Comcast were not in a position to know the detail of the manner nature and extent of the breaches of the tender process They hoped that this detail would be clarified by the Moriarty Tribunal permitting the delivery by Comcast of a particularised Statement of Claim 29 Damien Young deposed that while he accepted that there had been delay he deposed that it was excusable as the subject matter of the proceedings was also the subject matter of continued investigation by the Tribunal He stated that the complexity of the subject matter of these proceedings is evident from the time taken by the Tribunal in investigating the matter He stated that Comcast cannot be expected to be aware of all the details of the improper payments and conduct which Comcast believe resulted in the award of the licence to Esat He deposed that it was reasonable for Comcast to await the information provided in the public hearings of the Tribunal prior to the delivery of the Statement of Claim He also deposed that there was no particular prejudice suffered by the State 30 In his affidavit William Jolley deposed inter alia that the interference by the Minister was a complete abuse by the Minister of his office In 1996 Persona had made a complaint to the European Union in relation to the manner in which the competition for the grant of the licence was conducted but was told that the matter was essentially one for the Irish courts He deposed that in May 2001 the Tribunal indicated that it was commencing investigations into the circumstances in which the Minister Michael Lowry granted the licence to Esat He stated that this announcement by the Tribunal confirmed the concerns of Persona into the grant of the licence and a decision was made to issue the within proceedings 31 He deposed 9 The Moriarty Tribunal went into public session in relation to the circumstances surrounding the grant of the said licence in December 2002 The Minister has been represented at the public hearings by Mr Shaw on behalf of the Chief State Solicitor s Office Persona s former solicitors and in particular Mr Gerald Moloney and John O Donovan have attended more or less every public sitting of the Tribunal since 2001 Mr Moloney has informed me that on a number of occasions casual conversations have taken place between him and Mr Shaw In particular I am informed by Mr Moloney that not long after the service of the proceedings Mr Moloney met Mr Shaw at the Tribunal and was asked by Mr Shaw if he was going to deliver a Statement of Claim Mr Moloney told Mr Shaw that he would not be delivering it for the foreseeable future for the very reason that the Persona and their representatives would firstly be following the evidence which was likely to unfold at the Tribunal Mr Moloney informs me that at no stage did Mr Shaw object to this proposed course of action and indeed if anything appeared to be relieved as his Clients had more than enough to do in dealing with the Tribunal 10 Having regard to the constant attendance by the Persona s legal representatives at the Tribunal and the aforementioned conversations the State are well aware of Persona s intention to prosecute these proceedings During the course of the Tribunal hearings Tony Boyle a director of Persona has given evidence and has been subjected to cross examination by Counsel on behalf of the Minister During the course of that cross examination Counsel for the Minister has referred to the existence of the proceedings and while suggesting that the Tribunal is being used as a kind of stalking horse for the proceedings which Mr Boyle did not accept never made any complaint about any alleged delay or prejudice being suffered by the Minister or any of the other State Defendants

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  • while doing this and that the proceedings should now be struck out and not permitted to proceed to hearing Background 18 The essential background to this case is that on the 2nd March 1995 the Minister for Public Enterprise then Mr Lowry announced a bidding process for the award of the second GSM Mobile Phone Licence Mr O Brien s company Esat Digifone was the successful candidate in this bidding process and was awarded the licence on the 16th May 1996 Mr O Brien was then the chairman of Esat The first named plaintiffs in each case were amongst the unsuccessful applicants for the licence 19 The licence was correctly regarded as a thing of very great value and indeed it wholly transformed the fortunes of the successful applicant and some of those associated with it The Company which held the licence was a relatively short time later sold on for the enormous sum of 2 3bn The process of application or tender for the licence was an immensely complicated one and one which was extremely expensive to participate in 20 This process involved the creation on the 6th March 1995 within the Public Service of the GSM Project Group which drew up guidelines for dealing with the tenderers during the course of the tender process and which then conducted these dealings This Group was also to evaluate the applications which had been elicited by a process of public advertisement The stated object in creating this Group was to ensure that the evaluation of tenders and the award of the licence would be carried out by a body impermeable to political influence The Group was created under terms of strict confidentiality A protocol had been adopted to ensure that contact between the decision makers and interested parties occurred only in a formally controlled way Applicants were to be judged by reference to the rules and evaluation criteria approved by the government and the evaluation was to proceed strictly in accordance with an Evaluation Model and a Weighting Matrix the latter to reflect the descending order of importance of the criteria to be applied which were to be adopted prior to the closing date for applications 21 Comcast was party to a joint venture agreement entered into with Radio Telifís Eireann and with Bord na Mona and submitted a tender for the licence on the 4th day of August 1995 under the name The Cellstar Group The plaintiff s complaint 22 The plaintiffs say the process very briefly outlined above for the evaluation of applicants and the award of a licence was corrupted by Mr Lowry T D in order to ensure the award of the licence to Mr O Brien s consortium It is further alleged that this was done by Mr Lowry T D because he had himself been corrupted by Mr O Brien by the promise or expectation of payments to him of money or moneys worth It is a complicating factor in the case that the payments or benefits said to have been acquired by Mr Lowry T D were allegedly acquired largely after the award of the licence The present application 23 What is before the Court at present is a notice of motion on behalf of the Minister for Public Enterprise Ireland and the Attorney General the State defendants to dismiss Comcast s proceedings as against those defendants The substantive reliefs are set out in para 1 and 2 of a notice of motion of the 26th May 2006 as follows 1 An Order pursuant to the inherent jurisdiction of this honourable court dismissing the within proceedings as against the first fifth and sixth named defendants for delay and or want of prosecution 2 An Order pursuant to the inherent jurisdiction of this honourable court dismissing the within proceedings as against the first fifth and sixth named defendants in the interests of justice 24 The State defendants mentioned were successful in this motion in the High Court and the action against them was dismissed by order of that Court Gilligan J in a judgment dated the 13th June 2007 This is the plaintiffs appeal against that judgment and the order to which it gave rise The appeal was hard fought and its hearing occupied three days the 10th 11th and 12th of July 2012 Overview 25 The State defendants say that the plaintiffs had by May 2006 simply delayed too long so long that their claim as a whole should be dismissed by the Court for delay and want of prosecution This is why they issued the motion of the 22nd May 2006 They alleged in particular that the plaintiffs have delayed too long in delivering their Statement of Claim which was in fact delivered on the 3rd June 2005 about 3 years after the plenary summons was served They say that the plaintiffs have grossly exceeded the ordinary twenty one day time limit for delivering the statement of claim The proceedings should be dismissed on that account and in the interests of justice 26 The plaintiffs do not deny delay But they say that in the unique circumstances of the case this delay on their part is excusable They point in the first instance to the unique circumstances of the case they are alleging fraud deceit and corruption against the State itself a government department the individual Minister who then headed the department and who remains a member of Dáil Eireann and against the wealthiest businessman in Ireland a major figure even on the international stage They are alleging that the corruption took the form of promised and actual covert payments bribes in a word from the businessman or vehicles controlled by him to the Minister or in his interests Such things if true would be utterly disgraceful destructive of the reputation of both the briber and the person bribed They say that in consideration of these inducements the Minister cynically corrupted the evaluation and award scheme designed to be impermeable to political influence and changed its rules and procedures so as to ensure that the businessman s Company was awarded the hugely valuable licence Corruption of the sort alleged if proved is both a civil wrong and a criminal offence not to mention a commercial and political disgrace of the highest order It would disgrace the Nation and the State It is therefore the plaintiffs claim most unlikely to be committed openly obviously or in a way that is easy to discover or prove On the contrary they claim it was assiduously concealed and disguised by various stratagems This makes it impossible they say to formulate a claim within the time limited by the Rules of Court The process of investigation needed to establish top level corruption will alone far exceed that time If the ordinary limits of time were applied to such a case they argue it could never be pursued at all 27 They point out that they were compelled to issue the plenary summons in this case to avoid their action being defeated by the statute of limitations which limited a period of six years from the events complained of from the issue of the summons The plaintiffs also agree that having issued the summons they omitted to serve it for almost the maximum permitted period of one year because their investigations were continuing 28 The plaintiffs deny any prejudice to the defendants which would require the proceedings to be struck out in the interests of justice The learned trial judge found no specific prejudice The Tribunal 29 The principal point made by the plaintiffs however is that at the end of 1997 the Taoiseach of the day Mr Bertie Ahern by Instrument under his hand appointed a Tribunal of Inquiry whose sole member was the Honourable Mr Justice Moriarty to inquire inter alia into payments made to Mr Michael Lowry The making of these payments as well as other things had been described as a definite matter of urgent public importance in a resolution passed shortly beforehand by Dáil Eireann mandating the establishment of the Tribunal 30 The plaintiffs assert that at all times from the announcement of the award of the licence they had misgivings about the integrity of the process but lacked evidence to prove the bribery and corruption which they say had occurred precisely because all evidence had been sedulously concealed 31 The plaintiffs do not contend that they are entitled to rely on the findings of the Moriarty Tribunal to establish in evidence even on a prima facie basis the facts which the Tribunal found But they say they are entitled to use the evidence heard by the Tribunal in public over a period of years to assist them in producing proof of what they assert happened in relation to payments or other benefits conferred on Mr Lowry in relation to attempts to make other payments or benefits to him and to action taken by him to corrupt the process leading to the award of the second GSM licence They point out that evidence of this kind was heard on many dates over the years between 2001 and 2010 inclusive They say that they were entitled to await the development of this evidence or sufficient of it to enable them to plead their claim They rely heavily on the momentous fact that Dáil Eireann and the Executive power of the State thought it necessary to ascertain the facts about payments to Mr Lowry and that they are entitled to rely on the evidence developed in public using compulsory processes not available to private interests before this solemn tribunal 32 To this the State defendants say that the plaintiffs have no such entitlement They say that the Tribunal was established in the public interest and for the public good There is no entitlement to use its processes to support a private action brought for private financial gain and therefore were not entitled to wait for those processes to produce evidence They agree that the plaintiffs are entitled to litigate but they say that right is confined to those who litigate in accordance with the Rules of Court and in a timely manner The plaintiffs have not done this The State defendants emphasise that it is now some sixteen years since the award of the relevant licence and claim that it may be up to twenty years from that award before the litigation could come on for hearing This is wrong they claim it deprives them of the right to fair litigation and to a fair trial On its being raised they conceded that in other classes of litigation the State itself has asserted a right to proceed after as long a period or even after periods more than twice as long but they say that this should not be held against the State in the present application because the State defendants here cannot be expected to stand over every action the State has been engaged in 33 The State defendants also claim that the plaintiffs had available to them various procedural options which might have enabled them to plead their case without awaiting the evidence heard before the Tribunal It is said that they could have sought pre Statement of Claim Discovery of documents secondly they could have applied to the Court to stay their own proceedings it is said 34 It appears to me that these submissions are wholly lacking in reality The corruption alleged in this case was covert devious and concealed Foreign entities were it is said used to channel money to Mr Lowry The main relevant information developed at the Moriarty Tribunal over a long period of years related to a money trail The evidence related to a series of transactions which in the view of the Moriarty Tribunal demonstrated monies being paid to Mr Lowry As Clarke J says in his judgment about to be delivered a significant degree of forensic disclosure from financial institutions and others with the benefit of the significant powers of compellability which are available to a Tribunal of Inquiry was required to establish these transactions 35 In my view it is ludicrous to think that the persons and entities who went to great trouble to hide what was allegedly done would willingly supply evidence of it on discovery or otherwise Accordingly I agree with Clarke J that it was not unreasonable for Persona and Comcast to conclude that discovery was unlikely to produce the necessary detail and that it was much more likely that any such detail would if it existed become available through the Tribunal The remit of the Tribunal 36 The tribunal whose processes are relied upon by the plaintiffs was established by the Tribunals of Inquiry Evidence Acts 1921 and 1979 No 2 Order 1997 This Order was made under the hand and seal of the Taoiseach on the 26th September 1997 37 The Order first recited a resolution which was passed by Dáil Eireann on the 11th September 1997 and by Seanad Eireann on the 18th September 1997 Insofar as relevant this resolution said Bearing in mind serious public concern arising from the Report of the Tribunal of Inquiry Dunnes Payments which established that irregular payments were made to and benefits conferred on certain persons who were members of the Houses of the Oireachtas between 1 January 1986 and 31 December 1996 Resolves that it expedient that a Tribunal be established under the Tribunals of Inquiry Evidence Act 1921 as adapted by or under subsequent enactments to inquire urgently into and to report to the clerk of the Dáil and make such findings and recommendations as it sees fit in relation to the following definite matters of urgent public importance e Whether any substantial payments were made directly or indirectly to Mr Michael Lowry whether or not used to discharge monies or debts due by Mr Lowry or due by any Company with which he was associated or due by any connection to a connected person of Mr Michael Lowry during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential the discharge of such office f The source of any monies held in a number of named banks in accounts for the benefit or in the name of Mr Lowry or any other person who holds or has held a ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr Lowry g Whether Mr Lowry did any act or made any decision in the course of any ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph e or any person who is the source of any money referred to in paragraph f or any other person in return for such payments being made or procured or directed any other person to do such act or make such decision 38 It is thus established that in the calendar year following that in which the second GSM licence was awarded the Houses of the Oireachtas and the Executive considered it appropriate to establish a Tribunal of Inquiry to look into payments to Mr Lowry and whether these payments were made for the purpose of or actually did influence him in the exercise of his public functions The Terms of Reference themselves did not expressly mention the procedures leading up to the award of the second GSM licence but they are plainly capable of extending to those matters The questions set out as part of the Tribunal s remit were declared to be matters of urgent public importance Relevance of Tribunal to this litigation 39 Consequent on the passing of the Resolutions referred to above in the Houses of the Oireachtas and on the establishment of the Tribunal by Instrument of the Taoiseach it was clear in September 1997 that the question of payments to Mr Lowry the effect they had and the purpose for which they were made was going to be investigated by a public statutory Tribunal of Inquiry This is the most radical thorough going and fully empowered mechanism of investigation available to the State The Plaintiffs thinking 40 According to the affidavit of Damien Young a solicitor in the firm acting for the plaintiffs at the time of the issuing of the plenary summons his clients believed that the award of the second GSM licence to Esat Telecommunications Ltd was wrongful However he says the plaintiffs were not in a position to know the detail of the manner nature and extent of the breaches of the tender process They hoped that this detail would be clarified by the Moriarty Tribunal permitting the delivery by the Plaintiffs of a particularised Statement of Claim Mr Young goes on to say that the Statement of Claim was eventually delivered in June 2005 in response to an application to strike out the plaintiffs proceedings brought by the fourth named defendant Mr O Brien Mr Young says that the Plaintiffs wished to await the outcome of the investigation of the Moriarty Tribunal but they were constrained to file the Statement of Claim because of the making of an order that the proceedings would be struck out if one were not filed within four weeks This occurred more than five years before the conclusion of the Tribunal 41 Mr Young repeats that the Statement of Claim made it clear that the plaintiffs were unable fully to particularise the extent of the wrongdoing of the Minister pending the conclusion of the investigations of the Moriarty Tribunal He goes on to make the case that the delay is excusable by reference to the fact that the subject matter of the proceedings is also the subject matter of continued investigation by the Moriarty Tribunal The complexity of the subject matter of these proceedings is evident from the time taken by the Moriarty Tribunal in investigating this matter The plaintiffs cannot have been expected to be aware of all the details of the improper payments and conduct which the plaintiffs believed to have resulted in the award of the second mobile phone licence to Esat In the circumstances it was reasonable for the plaintiffs to await the information provided by way of public hearings at the Moriarty Tribunal prior to delivery of the Statement of Claim The Tribunal s focus 42 In fact as outlined at the hearing of this appeal it was in May 2001 that the Tribunal decided specifically to investigate the circumstances of the awarding of the second mobile phone licence This was highly significant from the plaintiffs point of view because they had to issue their proceedings very shortly in order to avoid being defeated by the Statute of Limitations The Tribunal s decision seems to have followed the publication of an article by Mr Matt Cooper in March of 2001 This article discussed a payment of 50 000 made by Telenor part of the successful Consortium in the license application to the Fine Gael party as opposed to Mr Lowry personally The significance of this subject in the Tribunal s decision to investigate the second GSM licence transaction is set out at Chapter 60 of the Tribunal s Report Par 60 01 records What led the Tribunal to investigate the decision made on the 25th October 1995 that Esat Digifone had won the comparative valuation to select a second GSM operator and the subsequent grant of the licence to Esat Digifone on 16th May 1996 was the evidence of the commencement shortly thereafter of the process whereby payments were made by Mr Denis O Brien to Mr Michael Lowry in clandestine circumstances The steps taken to effect the initial payment arose less than seven weeks after the licence was granted and the payment was made out of the proceeds of the very first tranche of funds available to Mr O Brien after he had successfully completed a placement on the U S market to finance his participation in Esat Digifone That payment was routed through a series of off shore bank accounts commencing in the Isle of Man moving to Jersey and terminating back in the Isle of Man in an account in the name of Mr Lowry but was reversed on the appointment of the McCracken Tribunal 43 It thus appears that the remit of the Tribunal from September 1997 was broad enough to include the events leading to the award of the second GSM licence and any payments made in that connection In May 2001 moreover it became clear that the Tribunal intended to investigate that specific matter and it proceeded to do so though not of course continuously on various dates over the next nine years The effect of this on the position of the plaintiffs who are alleging covert payments to Mr Lowry leading to a corrupt granting of the second GSM licence is at the nub of these proceedings Did the defendants know 44 There was uncontradicted evidence on this application that the plaintiffs personally or by lawyers acting for them attended at virtually all relevant sittings of the Tribunal over a period of years It was also asserted that at one of these sittings Mr Mathew Shaw a State Solicitor met Mr Gerald Moloney a solicitor acting for the plaintiffs and asked him whether he would soon be delivering his Statement of Claim Mr Moloney replied that they would be awaiting the evidence heard at the Tribunal before doing so On the hearing of this appeal it was said on the part of the State that they were not in a position to deny this conversation but as a matter of law the State take the view that the nature of a Tribunal of Inquiry is so different to that of civil proceedings that there is no relevance at all to the latter in the fact that a tribunal may be investigating the very same matters which are the basis of the civil proceedings It is to this topic that I will shortly turn 45 I believe it is abundantly clear from the evidence in this case that the State defendants were affirmatively aware at all material times that the plaintiffs intended to await the evidence at the Tribunal before delivering a Statement of Claim The State has not denied this The plaintiffs said precisely this to the State solicitor who asked about the Statement of Claim There is no other conceivable basis for the State s action in cross examining a Persona representative who gave evidence at the Tribunal along the lines that his company was using the Tribunal as a stalking horse for these proceedings 46 Since the State was in fact affirmatively aware of what the plaintiffs were doing I do not think it necessary to discuss whether as the State contends the plaintiffs should have put their position in writing to the State That question might have been central had the conversation between Mr Moloney and Mr Shaw been denied but it is not denied or glossed Nor did Mr Shaw say that he placed no significance on the statement of Mr Moloney or that the conversation was of a casual nature In my view it cannot be gainsaid that the State knew exactly what was going on at all material times Since that is so I do not consider that the contention that the plaintiffs should have informed the State defendants of what they knew anyway in some more formal fashion has any merit or relevance Nature of the Civil Proceedings 47 In the course of argument on this appeal Counsel for the State defendants said that the public interest in establishing whether or not payments had been made to Mr Lowry and whether he had taken any improper action on foot of them was met by establishing Tribunal of Inquiry This body was acting in the public interest He did not say whether the State accepted the findings of the Tribunal but he did not contradict them The present proceedings in contrast to the Tribunal were he said entirely private proceedings aimed at securing a private benefit Accordingly there is no entitlement to use the evidence given at the Tribunal in the civil action they are quite different procedures in their nature wholly unconnected with each other in nature and purpose There is therefore no entitlement to await this evidence before furnishing a Statement of Claim so the delay caused by doing so is not excusable 48 I do not consider that so rigid a distinction can be drawn between a public statutory procedure here a Tribunal of Inquiry on the one hand and a civil action on the other hand This topic was to some extent considered in this Court in the case of Grant v Roche Products Ireland Ltd 2008 4 IR 679 There the plaintiff had brought a fatal injuries action claiming that his son had committed suicide following his taking of a prescription drug marketed by the defendants and prescribed for him by a consultant Dermatologist He claimed the drug had caused his son to become extremely depressed and withdrawn as a result of which he committed suicide He said that depression was a known side defect of the drug 49 The defendants brought a motion to strike out the proceedings They said they had already offered to pay the plaintiff the full value of the action thereby satisfying his claim for damages In those circumstances they claimed the continued prosecution of the action was an abuse of process However the plaintiff refused their offer because it offered only financial compensation the defendants accepted no liability for the death of the plaintiff s son 50 In this Court it was held that the plaintiff s action fell to be approached in the context of the Constitution Reference was made to Article 40 3 and to the State s undertaking in its laws to respect and by its laws to protect as best it may from unjust attack and in the case of injustice done vindicate the life person good name and property rights of every citizen 51 The Court went on to hold that the fatal injuries action was not merely a device for obtaining a payment but was a method whereby the right to life of the deceased could be vindicated It was in fact the only legal step capable of providing vindication for an alleged injustice This conclusion was reached in the light of both the Irish and English texts of the Constitution considered at paragraphs 69ff of the judgment in the Grant case 52 Of relevance to the present case is what is said at para 77 of the Report in Grant I wish specifically to reject a central proposition upon which the Roche defendants relied that the vindication of personal rights is a matter only for the criminal or regulatory law and not civil law This highly artificial distinction has no basis in the Constitution or in the law itself Above all it does not conduce to justice which by Article 34 1 of the Constitution is what the Courts are to administer On the contrary it has been recognised at least since Meskell v CIE 1973 IR 121 at 132 3 that constitutional rights are capable of enforcement by action even though such action may not fit into any of the ordinary forms of action in either common law or equity thereby plainly and necessarily establishing that the ordinary forms of action may be used to enforce such rights where possible Still more explicit than the dictum of Walsh J quoted above is that of Henchy J in Hanrahan v Merk Sharpe and Dohme Ireland Ltd 1988 ILRM 629 when he said at 635 6 I agree that the tort of nuisance relied on in this case may be said to be an implementation of the State s duties under those provisions as to the personal rights and the property rights of the plaintiffs as citizens This is an absolutely express statement of the role of the law of tort in implementing the State s duties under Article 40 3 and the Personal Rights Articles of the Constitution 53 I would also refer to the other dicta and the authorities cited on this point in Roche without thinking it necessary to set them out here 54 I would accordingly reject the contention made towards the beginning of the State s answer in the oral argument of this appeal that it is inadmissible for the plaintiffs to seek to derive benefit from the proceedings of the Tribunal because the Tribunal is a body established in the public interest and the present proceedings are purely private proceedings directed at ensuring a private benefit I am indeed surprised that this argument was made having regard to the relatively recent decision of this Court in Grant The law of tort and the whole area of civil law is available for the vindication of constitutional rights including property rights where appropriate The fact that these forms of action are available in the law of the State is a discharge by the State of the obligations set out in Article 40 3 of the Constitution If they were not so available the State would have to make some other mechanism available to vindicate those rights Manifestly if the plaintiff s allegations are correct there can be little doubt that they have been the victims of an injustice Their capacity to bring a civil action in that regard is directed at the vindication of their rights in light of that injustice Primor v Stokes Kennedy Crowley 55 This Court in Primor plc v Stokes Kennedy Crowley 1996 2 IR 459 set out an authoritative test for approaching a defendant s motion for dismissal for want of prosecution and I intend to follow it here The Court summarised the relevant law as follows The courts have an inherent jurisdiction to control their own procedure and to dismiss a claim when the interests of justice require them to do so It must in the first instance be established by the party seeking a dismissal of proceedings for want of prosecution on the ground of delay in the prosecution thereof that the delay was inordinate and inexcusable Even where the delay has been both inordinate and inexcusable the Court must exercise a judgment on whether in its discretion on the facts the balance of justice is in favour of or against the proceeding of the case 56 This overall approach has been endorsed in such subsequent cases as Stephens v Flynn Ltd 2005 IEHC 148 and Desmond v MGN Ltd 2008 IESC 56 57 If a defendant cannot show that the delay was both inordinate and inexcusable then there are no real grounds for dismissing the proceedings Primor at 468 In Primor the Court found that the plaintiff s delay was inexcusable in part because the delay was caused by mismanagement Ibid at 477 The Court in Primor also held that the fact that the plaintiff s case was very complicated was not itself enough to excuse the delay Ibid at 478 Here the delay was not the result of mismanagement or complexity of material instead the plaintiffs delayed in order to hear the evidence publicly elicited by special statutory powers at the Moriarty Tribunal which evidence they needed in order to particularise the details of their allegations because they say many of the key facts of the case were deliberately and artfully concealed Furthermore in regard to a subsequent two year delay in Primor Hamilton C J held that there is more basis for excusing the two year delay in the preparation of the affidavit of discovery than for the two year delay which rose arose at an earlier stage in the preparation of the reply to notice for particulars because the preparation of the affidavit was a mammoth task involving well over 200 000 documents Ibid at 479 The plaintiffs situation here is much closer to this more excusable delay because they were waiting for evidence to emerge at the Moriarty Tribunal which were delayed because of the unexpected breadth of the inquiry the vast number of documents considered the viva voce evidence of many witnesses and legal action by various parties aimed at limiting the scope of the Tribunal s inquiry 58 Hamilton C J also pointed to the High Court decision in the associated case of Primor plc v Oliver Freeney Co which held that the plaintiffs delay was excusable due to the length of the case as well as the enormous task which faced the plaintiff and to the number and complexity of the documents involved Ibid at 484 But that will not always i e of itself be an excusing factor and was not so in Primor Here however not only was the task of gathering evidence enormous and complex but those performing it were wholly outside the plaintiffs control so there was nothing the plaintiffs could have done to speed the process As this court has said previously it is proper that regard should always be had to the Rules of Court but it must be remembered that the rules are there to help in the administration of justice and not as an end in themselves Ibid at 516 59 In the two associated and jointly reported Primor cases the High Court had in each case ruled against the motion to dismiss and permitted the litigation to proceed These decisions were on the facts of that case overturned by the Supreme Court for reasons which are pithily summarised in the judgment of O Flaherty J at p 516 The defendants are simply not able to make their defence for the diverse reasons already referred to but especially because of the fact that so many essential witnesses are either dead or beyond the reach of the courts 60 On the hearing of this appeal there was no suggestion that any important witness was similarly unavailable Like all these cases Primor turned on its own facts as this case must Apart from the fact that there was no contention here about prejudice due to dead or otherwise unavailable witnesses there are the following obvious points of distinction with Primor a Primor was a negligence action albeit a complex one this is an action for fraud deceit misfeasance in public office and corruption Accordingly the plaintiffs face problems much greater than those arising simply from complexity and have to deal allegedly with concealment of evidence and deliberate falsehoods b Although a considerable time elapsed between the service of the plenary summons in 2002 and the delivery of the Statement of Claim in 2005 during the whole of that period the question of alleged payments to Mr Lowry in connection with the second GSM licence was actively and specifically under investigation by the Moriarty Tribunal All known parties with relevant evidence to give were examined in that forum and more specifically all known State employees with relevant evidence made statements for the purposes of the Inquiry and cooperated with the State s own legal advisers Most or all of these witnesses were cross examined Accordingly all known relevant witnesses in relation to the State s dealing with the second GSM licence have been thoroughly questioned both in public and in private and their evidence and recollections preserved On the hearing of this appeal this was not gainsaid c In all the circumstances the plaintiffs case cannot be regarded either as implausible or as impossible to defend due to lost evidence or witnesses 61 In Hogan v Jones 1994 1 ILRM 512 Murphy J had this to say at p 158 of the Report The draconian penalty of dismissing proceedings as against a particular

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  • to participate in the deliberations of An Bord Altranais in this early stage of the proceedings when the decision is made to initiate the process This is clear from a recent decision which I gave in Al Sukhun v The Dental Council on the 14th May 2010 where I cited a passage from the earlier judgment in the Ó C case where Mr Justice Geoghegan at page 133 dealt specifically with the decision to bring court proceedings and stressed that there would never be an obligation to give prior notification before s 44 proceedings were commenced Section 44 of the Act of 1985 has been enacted with a view to preventing immediate danger to the public That is the paramount consideration Dr Forde in his usual ingenious way is endeavouring to reverse the cart backwards into s 44 to set a threshold in relation to the Board being satisfied I am satisfied that the section means there is an entitlement to natural justice rights but that those rights of the appellant are limited to a right of notification of the meeting and to be furnished with the relevant information and to make representations in that limited context There is a complaint that the documents were furnished late in the day and there is no note of a consideration for the application for adjournment I have to take into account a number of factors and have considered them First I am satisfied that Nurse O C was notified in a timely fashion It is a significant logistical exercise to convene a board of this nature and it is totally unacceptable that her solicitor simply said that she had prior commitments There is nothing contained in the affidavit which gives sufficient reason for her non attendance Even if I had any reservations on this there is the extra background in that Nurse O C herself gave an undertaking not to practise rather than be subject to a s 44 application The subject of the undertaking and the Inquiry is now the same No proper basis for any adjournment was demonstrated and the appellant and her advisors were given proper notice of the board meeting 14 The President distinguished the case of Lawlor v Geraghty 2010 IEHC 168 Unreported High Court 20th May 2010 He stated that everyone knew well what was on the agenda in this case He continued In a different case receiving information the day before might not be sufficient This is a case where there had been a four day hearing Nurse O C had appealed to the Supreme Court The subject matter to be dealt with was precisely the same as that dealt with at the meeting in May 2008 Nobody was under the slightest doubt of that As regards the merits of the section 44 I am satisfied that this is an appropriate case weighing up the public against the private interest and it hasn t been suggested that Mr Gleeson counsel for the respondent is incorrect about this Taking into account all of the factors I am satisfied it is in the public interest to make an order as sought I will also grant the order to notify the HSE and the Minister for Health Notice of Appeal 15 The appellant filed four grounds of appeal being that the learned trial judge erred in fact and or law as follows i Not acceding to Ms O C s request that the hearing should be treated as an interlocutory application rather than the trial of the action since an interlocutory order can have maximum flexibility as it considers appropriate while a final order does not provide for a lesser sanction than a complete strike off ii Holding that in the circumstances there was no audi entitlement of any kind before the respondent becomes satisfied that a s 44 application should be made and consequently there was no need for the respondent even to consider the application for an adjournment of at least 16 20 hours or of any of the concerns held by Ms O C mainly the possibility of ordinary nursing work working abroad and the position where other expecting mothers were insistent on engaging her for a home birth iii Ordering her to pay the costs regardless of what the outcome might be in the current F T P Inquiry into identical allegations and any appeal from its determination iv Rejecting an application that there should be liberty to apply Submissions 16 Written submissions were filed on behalf of both parties and oral submissions were made to the Court Motion 17 The appellant brought a notice of motion to the Court for leave to adduce further evidence at the hearing of this appeal The Court allowed the evidence in de bene esse without making a decision on its relevance Statute 18 Section 44 of the Act of 1985 provides 1 Whenever the Board is satisfied that it is in the public interest so to do the Board may apply to the High Court for an order in relation to any person registered in the register that during the period specified in the order registration of that person s name in the register shall not have effect 2 An application under this section may be made in a summary manner and shall be heard otherwise than in public 3 The High Court may make in any application under this section such interim or interlocutory order if any as it considers appropriate It is this section which is the basis for the respondent s action and which is in issue in this appeal The order of the High Court on the 9th June 2010 was that the appellant be suspended from the Register pending the determination of the inquiry of the fitness to practise committee pursuant to s 44 of the Act of 1985 Decision 19 In the High Court as is apparent from the judgment the President held that no issue arose on the propriety of

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  • were advanced concerning the Committee s exclusion of Ms Treanor from its considerations but these are no longer being pursued 22 Hedigan J by his judgment delivered on 23rd October 2009 dismissed the application for judicial review The learned judge thought that a judge s objectivity could not normally be impugned on the basis of innate characteristics such as gender and age or employment history or background He added that there may be additional factors which arise from an employment relationship and which might validly ground a reasonable apprehension of bias He found support for the requirement of an additional element or factor in respect of the impugned relationship in the judgment of Denham J as she then was in Bula Ltd v Tara Mines No 6 2000 I R 412 He quoted extensively from that judgment before concluding This decision of the Supreme Court makes it clear that aside from the mere fact of the relationship there must be an additional element to the association which has the potential to affect the adjudicator s impartiality in the case having regard to the nature of the relationship and the issues to be determined in the case 23 Hedigan J held that the following principles are applicable in determining the presence of objective bias 1 Objective bias is shown where a reasonable well informed observer would reasonably apprehend that the plaintiff would not receive a fair and impartial hearing because of the risk of bias on the part of the judge 2 A relationship between the judge and a party or a witness to the proceedings or another member of public involved with a case be it personal social or professional is not sufficient of itself to prove objective bias It must be shown that the circumstances of that relationship and its connection with the proceedings are such that it has the capacity to influence the mind of the decision maker 3 The impugned relationship between the judge and the party witness or other relevant person must normally display a community of interest between them which is directly related to the subject matter of the proceedings for objective bias to arise This link must be cogent and rational 4 Where the impugned relationship concerns a witness or other person not a party who does not have a stake in the outcome in the proceedings the threshold to establish objective bias will necessarily be higher 24 He concluded that there was no cogent reason for believing that because she worked in the same hospital as Ms Hanrahan she would necessarily prefer her evidence over the evidence of other expert witnesses whom Ms O Ceallaigh proposes to call Submissions on the appeal 25 Dr Michael Forde Senior Counsel on behalf of the appellant submitted that the case for objective bias was made out because of the particular relationship between Ms Treanor and Ms Hanrahan within the Rotunda Hospital 26 He said that the stakes were very high for the appellant involving potential complete prohibition on her practising both as a nurse and as a midwife and that the standard required of the Committee must be correspondingly high 27 He alleged that there was a degree of hostility between hospital and domiciliary midwifery and that domiciliary midwives represent a threat to highly paid consultants in hospitals He claimed that the Board could have found an expert from elsewhere such as Cork Galway Limerick or Belfast He claimed that Ms Byrne s explanation for the choice of Ms Hanrahan as an expert was implausible 28 He relied on the fact that both Ms Treanor and Ms Hanrahan worked in the same hospital had been in the midwifery section there since 2002 that Ms Treanor was Ms Hanrahan s superior that they participated in committee meetings and that it was not known what was the extent of their connection He alleged that they had collaborated together on some sensitive questions a matter which emerged only at a late stage from the facts of the case of Kudelska v An Bord Altranais 2009 IEHC 68 in which judgment was delivered in 10th February 2009 It emerged from that case that both Ms Treanor and Ms Hanrahan had given evidence in an inquiry into the nurse named in the title and that Ms Treanor had commissioned an assessment of the clinical skills of the applicant from Ms Hanrahan 29 Dr Forde also complained of the fact that Ms Byrne as Acting Chief Executive Officer had chosen the members of the panel for the inquiry 30 Dr Forde complained particularly that the Committee had failed prior to or at the hearing to disclose the connection between Ms Treanor and Ms Hanrahan Ms Treanor did not say at the outset that she worked at the Rotunda Hospital Dr Forde referred extensively to Australian and New Zealand authority He relied especially on a number of passages from the concurring judgment of Kirby J in the decision of the High Court of Australia in Smits v Roach 80 A L T R 1309 He suggested that the failure to disclose could in itself become evidence of objective bias 31 Before referring to the submissions of the respondent it is appropriate to remark that a number of the points made by Dr Forde are either not supported by the evidence or are not formulated as grounds for judicial review for which leave was granted On the first point there is simply no evidence of the existence whether at the Rotunda Hospital or other maternity hospitals of hostility to domiciliary midwifery On the evidence Ms Hanrahan was chosen by reason of her expertise in the management of home births Nor was there any evidence that an expert witness could have been chosen from elsewhere Furthermore leave to apply for judicial review was not granted on the ground that there was any impropriety in the Chief Executive Officer selecting the members of the panel for the inquiry 32 Mr Nicholas Butler Senior Counsel for the Committee submitted that Ms Hanrahan was under an obligation to deal professionally and ethically with the evidence It is necessary on the authorities to establish a cogent and rational link between the professional association between Ms Treanor and Ms Hanrahan and the apprehension that as a result of this association Ms Treanor would not be in a position to consider impartially the expert evidence He referred to the judgment of Denham J in Bula v Tara No 6 already cited at page 445 33 Mr Butler made the following points in response to the suggestion that the hypothetical well informed observer would reasonably apprehend that there was a risk that Ms Treanor could not consider the evidence impartially a The well informed objective observer would be aware of the small pool from whom Irish midwives with homebirth experience would be drawn and would be aware that in a country such as Ireland the likelihood of some degree of familiarity between expert witnesses and the professional nurses sitting to hear inquiries is high b The objective observer would also be aware that Ms Hanrahan was acting in her capacity as expert and therefore was simply presenting her personal view in her capacity as expert on the allegations of professional misconduct alleged against the Appellant c The objective observer would be aware that there was in truth no real community of interest between Ms Hanrahan and Ms Treanor What they have in common is that they both work for the Rotunda Hospital However they have no common interest in ensuring that the CEO succeeded in its prosecution of allegations of professional misconduct against Ms O Ceallaigh d Ms Treanor is an experienced member of the Fitness to Practise Committee having been a member of the An Bord Altranais since 2002 There was no cogent reason for believing that because she worked in the same hospital as Ms Hanrahan she would necessarily prefer the evidence of Ms Hanrahan over the evidence of any of the many experts whom Ms O Ceallaigh proposes to call e Ms Treanor is one of five decision makers The case law on bias generally relates to the role of one judge deciding on his or her own The likelihood of a bias arising must be diminished where the decision is taken by a group in particular with the benefit of advice of an independent legal assessor The relevant principles 34 The principles to be applied by our courts in adjudicating on allegations of objective bias have been well established for a number of years and in particular by two decisions of this Court delivered within two months of each other in the year 2000 There is an inevitable tendency on the part of counsel to suggest that each new decision on a particular or novel set of facts constitutes a development in the law There are many individual instances of decisions on particular facts Here it seems to me that our courts have merely been concerned to apply very well known criteria 35 I believe that the law is comprehensively and authoritatively stated in the judgment of Denham J delivered in July 2000 in Bula v Tara no 6 Having reviewed the law and having considered in particular the decision of the House of Lords in Reg v Gough 1993 A C 646 she rejected the suggestion that our courts should adopt a test based on a real danger of bias She cited the decision of the High Court of Australia in Webb v The Queen 1993 1994 181 C L R 41 to similar effect She held at page 441in favour of a test based on reasonable apprehension of bias However there is no need to go further than this jurisdiction where it is well established that the test to be applied is objective it is whether a reasonable person in the circumstances would have a reasonable apprehension that the Applicants would not have a fair hearing from an impartial judge on the issue The test does not invoke the apprehension of the judge or judges Nor does it invoke the apprehension of any party It is an objective test it invokes the apprehension of the reasonable person 36 The same test had been propounded by Keane C J in May of the same year in Orange Communications Ltd v Director of Telecoms No 2 2000 4 I R 159 at 186 as follows While the test for determining whether a decision must be set aside on the ground of objective bias has been stated in different ways from time to time by the courts in the United Kingdom there is in the light of the two authorities to which I have referred no room for doubt as to the applicable test in this country it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased i e where it is found that although there was no actual bias there is an appearance of bias 37 The two cases to which the Chief Justice referred were Dublin Wellwoman Centre Limited v Ireland 1995 1 I L R M 408 and Radio One Limerick Ltd v I R T C 1997 2 I R 291 38 The allegations of bias made the Bula case related to the participation of judges in decisions affecting parties for whom they had previously acted as counsel while practising at the bar It is nonetheless instructive to note that Denham J attributed at page 444 to the hypothetical reasonable observer a reasonable knowledge of the way counsel work but not a knowledge in depth such as could be attributed to a lawyer or legal academic She noted furthermore at page 445 that a prior relationship of legal adviser and client does not generally disqualify a former adviser on becoming a member of a court from sitting in proceedings She also recalled at page 442 that a judge has a duty to sit and determine cases 39 She made at page 445 in particular the important point emphasised by the trial judge in this case that in assessing objective bias the links must be cogent and rational i e there must be a real and not a mere hypothetical or a speculative link between the association under consideration and the apprehension of lack of impartiality being alleged 40 On this point she cited with approval at page 445 the following analysis of Merkel J in Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd 1996 135 A L R 753 55 In my view as with the cases considering personal family and financial interests the decision in the cases dealing with professional association between adjudicator and litigant demonstrate that the courts do not take a hypothetical or unrealistic view of an association relied upon in a disqualification application In particular they appear to accept that the reasonable bystander would expect that members of the judiciary will have had extensive professional associations with clients but that something more than the mere fact of association is required before concluding that the adjudicator might be influenced in his or her resolution of the particular case by reason of the association Although the test is one of appearance it is an appearance that requires a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case In the absence of such a link it is difficult to see how the test for disqualification as stated in Livesey can be satisfied emphasis added 41 This need for a cogent and rational link between the claimed bias and the feared departure of the adjudicator from the standard of impartiality has been emphasised in two subsequent cases in the High Court of Australia In particular in the majority judgment delivered by that Court in Smits v Roach cited above the case where Kirby delivered a wide ranging concurring judgment cited by Dr Forde At paragraph 53 three judges from the majority Gleeson C J Heydon and Crennan JJ with whom two other members Gummow and Hayne JJ agreed in a separate judgment cited the earlier judgment of the court in Ebner v Official Trustee in Bankruptcy 2000 75 ALJR 277 paragraph 8 The apprehension of bias principle admits of the possibility of human frailty Its application is as diverse as human frailty Its application requires two steps First it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal and factual merits The second step is no less important There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits The bare assertion that a judge or juror has an interest in litigation or an interest in a party to it will be of no assistance until the nature of the interest and the asserted connection with the possibility of departure from impartial decision making is articulated Only then can the reasonableness of the asserted apprehension of bias be assessed 42 In Smits v Roach the objective bias alleged was that the brother of the judge trying a case between a firm of solicitors and a former client was a member of the firm of solicitors which formerly acted for the same former client It was alleged that the judge s brother s firm might be indirectly affected by the outcome of the case On that point Kirby J differed from his colleagues Five of the judges thought that the required cogent link had not been shown between the judge s brother and any risk of partiality suspected or apprehended Kirby thought otherwise 43 Many attempts have been made not so much to lay down rules as to provide general guidance to courts called upon to judge on the presence or absence of objective bias The categories range from real or believed financial or property interest through close family connections and intimate friendships to broader categories of association common interests pursuits or characteristics One passage which has been quoted in a number of Irish cases including in several of the judgments in Orange Communications is the joint judgment of Lord Bingham Lord Woolf and Sir Richard Scott V C in the Court of Appeal in England in Locabail UK Ltd v Bayfield Properties Ltd 2000 Q B 45 It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias Everything will depend on the facts which may include the nature of the issue to be decided We cannot however conceive of circumstances in which an objection could be soundly based on the religion ethnic or national origin gender age class means or sexual orientation of the judge Nor at any rate ordinarily could an objection be soundly based on the judge s social or educational or service or employment background or history nor that of any members of the judge s family or previous political association or membership of social or sporting or charitable bodies or Masonic associations or previous judicial decisions or extracurricular utterances or previous receipt of instructions to act for or against any party solicitor or advocate engaged in a case before him or membership of the same inn circuit local law society or chambers By contrast a real danger of bias might well be thought to arise if there were personal friendship or animosity between the judge and any member of the public involved in the case or if the judge were closely acquainted with any member of the public involved in the case particularly if the credibility of that individual could be significant in the decision of the case or if in a case where the credibility of any individual were an

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  • possibilities mentioned by Murphy J Discussion of the presumption of constitutionality 20 When either the High Court or the Supreme Court as the case may be is called upon to consider the exercise of its power to declare laws to be repugnant to the Constitution it works according to the principle that any Act of the Oireachtas i e any law enacted since the entry into force of the Constitution enjoys a presumption of constitutionality More than seventy years ago in Pigs Marketing Board v Donnelly Dublin Ltd 1939 I R 413 Hanna J stated at p 417 When the Court has to consider the constitutionality of a law it must in the first place be accepted as an axiom that a law passed by the Oireachtas the elected representatives of the people is presumed to be constitutional unless and until the contrary is clearly established 21 As the Court has explained that principle springs from and is necessitated by that respect which one great organ of State owes to another per O Byrne J in Buckley and others Sinn Féin v Attorney General and Another 1950 I R 67 at p 80 The presumption remains a fundamental principle of our constitutional jurisprudence see Goodman International Ltd v Mr Justice Hamilton 1992 2 I R 542 Finlay C J Curtin v Dail Eireann others 2006 2 I R 556 22 An important corollary of that principle is that a court considering the exercise of that constitutional power must apply the principle of double construction Where the legislative provision under examination is reasonably open to two or more interpretations one of which is compatible with the Constitution and the other or others of which are not the court must adopt the former interpretation 23 Walsh J explained the principle in McDonald v Bord na gCon 1965 I R 217 at 239 as follows The Greyhound Industry Act of 1958 being an Act of the Oireachtas is presumed to be constitutional until the contrary is clearly established One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open one of which is constitutional and the other or others are unconstitutional it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant 24 In East Donegal Co operative Livestock Mart Ltd v Attorney General 1970 I R 317 at 341 the same judge elaborated the principle in the following terms Therefore an Act of the Oireachtas or any provision thereof will not be declared to be invalid where it is possible to construe it in accordance with the Constitution and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt It must be added of course that interpretation or construction of an Act or any provision thereof in conformity with the Constitution cannot be pushed to the point where the interpretation would result in the substitution of the legislative provision by another provision with a different context as that would be to usurp the functions of the Oireachtas In seeking to reach an interpretation or construction in accordance with the Constitution a statutory provision which is clear and unambiguous cannot be given an opposite meaning 25 However the presumption of constitutionality does not apply to laws passed prior to the coming into force of the Constitution Walsh J explained in State Sheerin v Kennedy 1966 IR 379 p 386 All laws in force on the date immediately prior to the coming into operation of the Constitution are presumed not to be in conflict with the Constitution in force at the date of their enactment or in excess of the powers of the parliament which enacted them but they enjoy no such presumption in respect of the provisions of the present Constitution and fall to be examined under the provisions of Article 50 of the Constitution not as to their validity but even assuming they were valid as to whether or not they are inconsistent with the provisions of the present Constitution 26 As the matter was expressed by O Higgins C J in Norris v Attorney General 1984 I R 36 at 54 However according to the actual words used in Article 50 the law or laws in question operate unless inconsistency is established and the onus of establishing such is placed on the person who challenges their continued validity This is not to say that such pre Constitution laws enjoy any presumption of consistency or constitutionality They do not 27 By one of the curious ironies of litigation the State having argued in C C that section 1 of the Act of 1935 could not be interpreted so as to permit a defence of honest mistake as to age is now compelled by the consequence of the decision in that case to argue the contrary For the same reason the State submits that section 2 of the Act must be considered as a post 1937 enactment by reason of its amendment in 1997 28 The question then becomes whether that amendment given its form and its content has the effect of transforming a provision enacted in 1935 effectively into a provision enacted by the Oireachtas in 1997 29 The spectrum ranges from cases where a pre 1937 act is formally re enacted or applied to a new situation to cases of slight or peripheral amendment 30 A good example of the first type of situation occurred on establishment of the new Court of Criminal Appeal by

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  • court accepts the submission of the defendants that that question should be determined by the trial court As the Supreme Court indicated in C C any of the three formulations identified above and perhaps others would pass constitutional muster so that once it has been determined that the provision is not of a strict liability nature the question of what the provision requires is one of statutory interpretation rather than constitutional law The duty of the trial court therefore is to give to the provision whatever interpretation is consistent with the Constitution and flows from an application of the ordinary rules of statutory interpretation including the unrebutted presumption at common law that some mental element should be inferred This court has already determined that s 2 as amended is consistent with the Constitution For the reasons noted above the basis relied upon in C C as excluding the mental element is not present here Accordingly it is legitimate and indeed necessary for the trial court to infer a particular mental element under s 2 as to the age of the complainant by applying the ordinary rules of statutory interpretation Appeal 7 The appellant filed a notice of appeal on the 4th March 2009 Trial in the Circuit Court 8 Since the judgment of the High Court the appellant has been tried for the offence having been refused an application for a stay The trial commenced before His Honour Judge McCartan on the 7th April 2011 and ended on the 13th April 2011 without the jury reaching a verdict The defence claimed that the appellant did not know the age of the complainant but that he believed she was 18 years of age The complainant said her date of birth was on her C V and that she said she was only 16 during the alleged attack The appellant gave evidence that no date of birth appeared on the C V the appellant said he believed her to be 18 because she had said she had two years work experience The appellant gave evidence that the complainant made the approaches to him and that there was no sexual intercourse In his charge to the jury Judge McCartan directed that the defence could rely on an honest belief about the complainant s age The jury did not reach a verdict Re trial 9 The re trial of the appellant is due to commence on the 24th January 2012 Issue 10 Thus at the core of this case is whether the defence of mistake of age is open to the appellant Amendment 11 Section 2 1 of the Criminal Law Amendment Act 1935 provided for the offence of unlawful carnal knowledge of a girl between the ages of 15 and 17 years of age It stated Any person who unlawfully and carnally knows any girl who is of or over the age of fifteen years and under the age of seventeen years shall be guilty of a misdemeanour and shall be liable in

    Original URL path: http://www.supremecourt.ie/Judgments.nsf/1b0757edc371032e802572ea0061450e/f2be6e93abb1fc5e8025796d0042ab2b?OpenDocument&TableRow=2.1 (2016-02-09)
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