McBrearty v. Morris [2003] IEHC 154 (13 May 2003)

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High Court of Ireland Decisions

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URL: http://www.bailii.org/ie/cases/IEHC/2003/154.html
Cite as: [2003] IEHC 154

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THE HIGH COURT

JUDICIAL REVIEW

Record No: 2003 No. 219 JR

Between:

Frank McBrearty Senior

Applicant

and

The Honourable Mr Justice Frederick Morris

(Sole Member – Tribunal of Inquiry concerning some Gardai of the Donegal Division)

Respondent

And

The Attorney General

Notice Party

Judgment of Mr Justice Michael Peart delivered the 13^th day of May 2003

Introduction:

On the 28^th March 1998, both Dail Eireann and Seanad Eireann passed a Resolution in the following terms:

bearing in mind the serious public concern about allegations that members of the Garda Siochana in the Donegal Division engaged in unethical behaviour and criminal behaviour;

noting the decision of the Minister for Justice, Equality and Law Reform in November 2001 to request Mr Shane Murphy SC to conduct an independent review of all relevant papers and the progress on the investigations into these allegations generally with a view to the Minister receiving expert independent advice as to whether there are measures that might now be taken to bring matters to finality sooner rather than later;

noting that having completed his review, it is the opinion of Mr Shane Murphy SC that a Tribunal of Inquiry represents the only comprehensive method of enquiry to resolve outstanding issues of fundamental public importance;

mindful that a number of criminal proceedings have been instituted arising from some of these allegations, and mindful of the ongoing investigation into the death of Mr Richard Barron, and not wishing to prejudice these or related criminal proceedings;

resolves that it is expedient that a tribunal be established under the Tribunals of Inquiry (Evidence) Acts, 1921 to 2002, to enquire urgently into the following definite matters of urgent public importance:

(a) The making of extortion or hoax telephone calls to the home of Michael and Charlotte Peoples on 9^th November 1996 and the subsequent Garda investigation into that complaint;

(b) Investigations in relation to the death of Mr Richie Barron of Raphoe, Co. Donegal on 14^th October 1996 with particular reference to the arrest and treatment of persons in custody in connection with that investigation, the progress, management and effectiveness of the Garda investigation with particular reference to the management of informants;

(c) Allegations of harassment of the McBrearty family of Raphoe, County Donegal and of relatives, associates and agents of that family by family by members of the Garda Siochana subsequent to the death of Mr Barron including the issue and prosecution of summonses relating to offences alleged to have occurred between 28^th October 1996 and 28^th September 1998;

(d) The circumstances surrounding the arrest and detention of Mark McConnell on 1^st October 1998 and Michael Peoples on 6^th May 1999;

(e) Complaints that some Gardai in County Donegal may have been involved in hoax explosives and bomb-making equipment finds (in particular discoveries on 11^th September 1993, 19^th November 1993, 11^th January 1994, 14^th March 1994, 4^th June 1994, 13^th June 1994 and 18^th July 1994) and a review of the management and investigation of these issues;

(f) The circumstances surrounding the arrest and detention of Frank McBrearty Jnr. On 4^th February 1997 and his subsequent prosecution in the Circuit Criminal Court in relation to an assault in December 1996 on Edward Moss with particular reference to the Garda investigation and the management of both the investigation and the role of the Gardai in the subsequent prosecution;

(g) Allegations relating to the Garda investigation of an arson attack on property situated on the site of the telecommunications mast at Ardara, County Donegal in October/November 1996;

(h) Allegations contained in documents received by Deputy Jim Higgins on 25^th June 2000 and in information received by Deputy Brendan Howlin on 25^th June 2000 that two senior members of An Garda Siochana may have acted with impropriety;

(i) The circumstances surrounding the arrest and detention of seven persons at Burnfoot, County Donegal on 23^rd May 1998 and the investigation relating thereto;

(j) The effectiveness of the Garda Siochana Complaints inquiry process viz-a-viz the complaints made by Frank McBrearty Snr. And his family between 1997 and 2001;

And to report to the Minister for Justice and Law Reform and to make such findings and recommendations as it sees fit in relation to these matters;

And further resolves that –

(1) The Tribunal shall report to the Minister for Justice, Equality and Law Reform on an interim basis not later than four months from the date of establishment of the Tribunal and also as soon as may be after the tenth day of any oral hearings of the Tribunal on the following matters:

(a) the number of parties then represented before the Tribunal,

(b) the progress which will then have been made in the hearings and work of the Tribunal,

(c) the likely duration (so far that may then be capable of being estimated) of the proceedings of the Tribunal,

(d) any other matters that the Tribunal considers should be drawn to the attention of the Houses of the Oireachtas at the time of the report (including any matters relating to its terms of reference);

(2) the inquiry shall be completed in as economical a manner as possible and at the earliest possible date consistent with a fair examination of the matters referred to it;

(3) all costs incurred by reason of the failure of individuals to co-operate fully and expeditiously with the Tribunal should, as far as it is consistent with the interests of justice, be borne by those individuals;

(4) the Minister for Justice, Equality and Law Reform shall within 14 days of receipt of any report from the Tribunal either apply to the High Court for directions regarding publication of the Report or arrange to have it laid before both Houses of the Oireachtas.

By Instrument dated 24^th April 2002 entitled Tribunals of Inquiry (Evidence) Act 1921 (Establishment of Tribunal) Instrument 2002, the then Minister for Justice, Equality and Law Reform, pursuant to these Resolutions, and in exercise of the powers conferred upon him by section 1(1) (as adapted by the Tribunals of Inquiry (Evidence) Act 1921 Adaption Order 1936 (S.R. & O No. 25 of 1936)) of the Tribunals of Inquiry (Evidence) Act 1921, established a Tribunal to inquire into, report and make such findings and recommendations as it sees fit on the matters referred to in paragraphs (a) to (j) of the resolutions passed by both Houses of the Oireachtas above set forth, and appointed the Respondent to be the sole member of the Tribunal.

The Respondent has stated in his Ruling on Legal Representation dated 22^nd November 2002:

"As is clear from the preliminary opening statement, the McBrearty family and their dealings with An Garda Siochana and various other parties are central to many of the Tribunal's Terms of Reference. The evidence of members of the McBrearty family and their friends and associates will be important to the workings of the Tribunal, as will the testimony of many other persons."

It was in recognition of the central importance to the Tribunal of the evidence and assistance to be given by the Applicant and his family and extended family that the Respondent, on the 22^nd July 2002, ruled that they be granted the right to be legally represented by the same solicitor and Counsel before the Tribunal in relation to matters arising in paragraphs (a), (b), (c), (d), (f), (h) and (j) of the Tribunal's Terms of Reference.

On the 19^th November 2002, the Applicant appeared in person before the Tribunal and expressed his dissatisfaction with the Tribunal's Terms of Reference, and in addition, informed the Tribunal that he is not in a financial position to pay for the legal representation which he has been granted by the Tribunal under the said Ruling dated 22^nd July 2002. He indicated to the Tribunal on the 19^th November 2002, that because of his dissatisfaction with the Terms of Reference and because of his inability to fund a legal team for the duration of the Inquiry that he and his extended family did not intend to participate in and assist the Tribunal in its Inquiry, whether as witnesses or otherwise.

For the reasons set forth by the Respondent in his Rulings dated 22^nd July 2002 and 22^nd. November 2002, the Respondent did not consider it appropriate at that time that an extension to the Tribunal's Terms of Reference should be sought. He does not exclude the possibility of seeking such an extension at any stage in the future should good grounds exist to justify so doing.

In relation to Mr McBrearty's indication to the Tribunal that he is unable to fund a legal team in the absence of being provided with the means to do so, the Respondent stated the following:

"I now turn to the issue of costs raised by Mr McBrearty Snr. in his submission to me on the 19^th November 2002. I have already indicated on the 22^nd July 2002 that the Tribunal considers that it has powers to make provision for the payment of a viaticum to witnesses for the purpose of attendance. In respect of the wider issue of costs, the matter was fully addressed by me on the 22^nd July 2002. The power of the Tribunal in relation to costs is limited. The Tribunal is not entitled to grant legal aid under the civil or criminal legal aid scheme. The Tribunal is not empowered to make a recommendation under the Attorney General's Scheme whereby litigants in some forms of proceedings before the courts are indemnified from a fund administered by the Office of the Attorney General. The Tribunal only has a power to make an order for costs at the conclusion of the Tribunal's business. Additionally, the Tribunal has the power, having regard to the findings of the Tribunal, and all other relevant matters, to order that the whole or part of the costs of any person appearing before the Tribunal by another person to that person , or to the Minister for Finance. As previously noted, it is not possible for the Tribunal to this aspect of costs until the Tribunal's business has concluded.. Consequently, although I appreciate that the retention of lawyers by a private individual to appear before this Tribunal on a person's behalf inflicts a heavy financial burden upon him, the Tribunal is not vested with any power to relieve that burden. Mr Frank McBrearty Snr has expressed in forceful terms the nature and extent of that burden for him and his family. A similar burden will also fall on many other persons who have already been granted legal representation. Whilst I can sympathise with the financial situation faced by these parties, I have no power to remedy it. In these circumstances, Mr Frank McBrearty Snr and his family and others are left with the option of representing themselves before this Tribunal if they are unable to procure legal representation.

In conclusion, I repeat that whatever grievances a witness may have, whether it be the suggested deficiencies in the Terms of Reference of the Tribunal or an inability to fund legal representation before the Tribunal, such issues do not diminish that person's legal duty to attend as a witness before the Tribunal, or give his or her evidence when called upon in accordance with law."

Earlier in the same Ruling of 22^nd November 2002 (at paragraph 12 thereof), the Respondent stated in relation to the Applicant's submissions on 19^th November 2002:

"He also complains that he is not in a financial position to pay for legal representation which he has already been granted by the Tribunal for the duration of the Tribunal's hearings which may continue for a considerable time. I indicated that I had some sympathy for him in this regard and that I understood that it would be a very onerous financial undertaking to fund a legal team for the duration of the Tribunal. Mr McBrearty indicated that because of the limited nature of the Terms of Reference of this Tribunal of Inquiry and his inability to fund a legal team for the duration of the Inquiry that he and his family and the Diver family did not intend to participate in or assist this Inquiry, whether as witnesses or otherwise.

In a letter to the Tribunal dated the 14^th January 2003, Messrs. David Walley & Company, solicitors wrote to the Tribunal on behalf of the Applicant and his extended family, adverting to the fact that that their clients could not afford to take up the grant of legal representation over the anticipated duration of the Tribunal. This letter was written in the context of efforts made by the Tribunal in the preceding months to get the Applicant to make discovery of relevant documentation in his possession and control, and pointed out that without legal assistance, the task of complying with any request for discovery was one which was beyond the capacity of the Applicant due to ill-health and a poor standard of education, in spite of the Applicant's willingness otherwise to co-operate with the work of the Tribunal. This letter goes on to request the Tribunal to defer considering the matter of discovery until such time as the Tribunal has had an opportunity of dealing with a request by the McBreartys that the Tribunal make provision for them to be legally aided in respect of their representation before the Tribunal.

This letter elaborates upon the nature of the fears which the Applicant and his extended family have in relation to the situation they fear they will face if forced to attend before the Tribunal without any legal team to advise and support them. It is worth setting this out in some detail at this stage, although the matter is set out in even greater detail in the very lengthy and detailed affidavit filed by the Applicant in support of his application for relief by way of Judicial Review and to which I shall refer in due course.

Concern is expressed firstly that several members of the Garda Siochana against whom the McBrearty family have made serious allegations are to be represented at The Tribunal by solicitor and Counsel acting on behalf of the Commissioner of An Garda Siochana, and secondly that other members of An Garda Siochana against whom similar allegations are made will be represented by solicitor and Counsel instructed and paid for by the Garda Representative Association, which will also be providing secretarial and administrative back-up which is directly funded from the public purse through members of the Garda Siochana seconded from their posts and in full receipt of their salaries.

The McBrearty family fear that they will be subjected to hostile cross-examination by Counsel acting for these very parties against whom they have made serious allegations of conspiracy to implicate them in the murder of Mr Richie Barron, and attempting to destroy a family business, which, it is stated, has for all practical purposes succeeded. The letter points to the enormous disparity in resources between the above parties and the McBreartys.

The letter, in its reference to the Applicant's son, Mr Andrew McBrearty, states that due to the pressures to which he was subjected by the Garda Officers, he left Ireland and went to America where he now lives. The letter states that these gardai are being represented at the Tribunal by Counsel on behalf of the Commissioner of An Garda Siochana, and/or by Counsel and solicitor funded from the public purse, whether directly or indirectly.

Mr Walley in this letter submits that any failure on the part of the Tribunal to provide funding to the McBreartys will mean that the business of the Tribunal cannot be conducted with constitutional fairness, and calls upon the Tribunal to provide such funding, in the absence of which his clients will seek relief from the High Court. He submits also that the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 gives the Tribunal jurisdiction to grant such legal aid to the applicant and his family, and that if that is not the case, then it would be the intention of his clients to join the Attorney General in proceedings for the purpose of seeking a declaration that that the said Acts are unconstitutional.

It is of some relevance to note at this stage that this letter was written just over two weeks following the service upon the Applicant of what his Counsel has described to this Court as a vast amount of documentation relevant to the Tribunal's Inquiry. It is said that the arrival of this large volume of documentation during Christmas week 2002 is what precipitated the Applicant into seeking relief from the Court. This factor is relevant in relation to the submission by the Respondent and Notice party that the Applicant has delayed in bringing his application and that no grounds have been put forward as to justify this Court in granting an extension of time for the bringing of the application pursuant to the provisions of Order 84 of the Rules of the Superior Courts.

The Tribunal's solicitor, Ms. Bernadette McCrombie, responded to this letter on the 21^st January 2003.

Noting the difficulties to which Mr Walley had referred, Ms. McCrombie informed Mr Walley that if his clients had documentation which they wished to offer to the Tribunal which was relevant to its work, the said documentation could be brought by them to the offices of the Tribunal where they would be afforded the fullest possible assistance and direction as to how discovery of the documentation should be made, or as to how the documents should be produced.

Stressing the importance of persons in possession of relevant documentation co-operating with the Tribunal, this letter stated that the Tribunal would be content at that stage if the Applicant would deposit all the documentation in his possession with the Tribunal, or alternatively copies of such documents, and that if the originals were lodged, the Tribunal would make copies for itself and return the originals to the applicant. The Tribunal would also assist the Applicant with the preparation of an affidavit of discovery which was required by the Tribunal.

Referring specifically to the applicants request that he be provided with funding to enable him to engage a legal team to represent his interests and those of his family at the Tribunal, this letter states as follows:

"In the course of the oral hearings before the Tribunal Counsel on behalf of the Tribunal will examine and cross-examine all witnesses as appropriate. Counsel to the Tribunal have a much more wide-ranging duty in the course of these oral hearings than Counsel for a party in civil proceedings. This arises from the nature of the Tribunal's proceedings. The proceedings before this Tribunal are not adversarial in nature. The Tribunal does not seek to make a case against any party. It is conducting an inquiry and seeks to elicit the truth. The Tribunal is not trying an issue between parties called before the Tribunal. Primary responsibility for eliciting facts from witnesses in the course of the Tribunal's hearings lies with Counsel for the Tribunal who will examine, cross-examine and then re-examine the witnesses. This procedure will apply to your clients and to any other witnesses appearing before the Tribunal. We hope that an understanding of this procedure will go some way towards relieving your client of his stated worries about being cross-examined by others. This, of course, will most probably take place but within the rules and procedures appropriate to cross-examination. It should also be recalled that as witnesses, your clients have been afforded all the rights to legal representation which it is within the Tribunal's power to grant.

In respect of this and the balance of your concerns in respect of your other clients we note your instructions that it is not possible for your clients to fund the legal representation granted to them by the Tribunal. The Sole Member of the Tribunal has already made a number of Rulings in respect of the issue of costs of which you are aware. We enclose copies of these rulings for your further attention. We note that the Ruling on the 25^th November 2002 (sic) was made following an application raising the issue of costs which was made personally by your client Mr Frank McBrearty, Senior on the 19^th November 2002. The Tribunal has not been furnished with any legal submission or argument based on precedent or statutory authority by you or any other party to the Tribunal which supports any other conclusion than that set out in the Tribunal's rulings in this regard."

Further correspondence ensued in which Messrs.Walley & Co reiterated their clients' willingness to co-operate with the work of the Tribunal, but restated that it was necessary for his clients to have the benefit of their lawyers' assistance in the matter of discovery and they could not afford to do this. They also made the point that while Counsel for the Tribunal have a more wide-ranging duty than do Counsel acting for a party in civil proceedings, those Counsel nevertheless would not be able to focus their attention on the needs of the McBreartys in the matter of their cross-examination by other parties, and ensure that constitutional rights are not breached in such cross-examinations.

By letter dated 29^th January 2003, the Tribunal solicitor wrote to Messrs. Walley & Co, and stated, inter alia, the following:

"The Tribunal is now in the process of urgently inquiring into matters arising out of the death of Richard Barron. The Tribunal hopes to take up hearings on that matter after the disposal of its inquiry into explosives. The full co-operation of every party is essential to the work of the Tribunal and it will be enforced by appropriate orders, if this is necessary. Other parties have provided discovery of documents on the basis of co-operation without requiring the Tribunal to make an adjudication as to costs. This is hardly surprising since the rulings which we have previously sent to you clearly indicate that costs cannot be awarded in the absence of a hearing and the findings of facts on the basis already indicated. The Tribunal has already indicated that it will hear applications for costs on a module by module basis and may be able to make an award upon the conclusion of a module. The Tribunal therefore invites argument at the appropriate time on the issue of costs and will act with fairness having due regard to its findings of fact."

This letter also called upon Messrs Walley & Co to write to the Tribunal within seven days, setting out any reasons why an Order for Discovery of documents should not be made by the Tribunal.

By letter dated 21^st February 2003, Walley & Co wrote to the Tribunal pointing out that with the limited resources available to them they had difficulty keeping pace with the progress of the paper being presented to them by the Tribunal. The fourth paragraph of that letter states as follows:

"As we have been working effectively in an informal capacity on all matters relating to the Tribunal to now, we have agreed with our clients, to seek to avail, of the offer of legal representation made by the chairman. We accept this offer without prejudice to any further action which our clients might propose to take in the future on the matter of an interim award of costs, and to that end, we hope shortly to present you with formal submissions."(emphasis added)

Messrs Walley & Co. wrote further to the Tribunal on the 12^th March 2003 enquiring as to the sequence in which the Tribunal proposed dealing with the various modules. They also requested a list of witnesses it was proposed to call for the purpose of the "Barron Module" commencing on the 25^th June 2003. and enquired of the Tribunal if it was proposed to sit during the months of August and September.

I should add that by letter dated 5^th March 2003, Messrs Walley & Co has sent a long and detailed legal submission to the Tribunal in relation to the application by their clients for legal assistance, in view of their stated inability to afford legal representation at the Tribunal. This legal submission was exhibited by the Applicant in his affidavit sworn on the 27^th March 2003 which grounded his application for leave to seek judicial review. The Tribunal responded to this submission by letter dated 7^th march 2003 in which it was stated that the Tribunal had already made a formal ruling that it was unable to offer legal aid, or a guarantee of costs in advance, to any party before it.. The latter stated that "the Tribunal cannot not change the existing law, which is that a Tribunal may only award costs when there has been co-operation on the basis of truth with its hearings. Costs can be awarded against a party who is uncooperative or deceitful with the Tribunal. This cannot be ascertained without hearing evidence."

The Tribunal in due course made an Order for Discovery against the Applicant on the 11^th March 2002, which order allowed the applicant a period of two weeks from the date of the order within which to comply with the order and contained a note warning the applicant of the potential serious consequences for him in the event that he should fail to comply with the terms of the said order.

Subsequent to the making of the order for discovery on the 11^th March 2003, there was some correspondence between Messrs Walley & Co and the Tribunal dealing with certain logistical matters such as the sequence of the modules and the witnesses likely to be called in the "Barron Module", and whether the Tribunal would sit in August and September, but there was no further letter from Walley & Co, warning that the Applicant was going to make the application to this Court to which they had referred in their letter to the Tribunal dated 14^th January 2003 to which I have already referred.

It is contended by the Applicant that although the Ruling of the Tribunal on the costs issue is dated 22^nd July 2002, it was not until the very large volume of documentation was served on the Applicant in the week immediately before Christmas that they saw the extent of the documentation which they would faced with in dealing with the Tribunal, and when they for the first time became aware that investigations into the Applicant and members of his family were in fact still on-going and into most private areas of their lives, that they became aware that it would be necessary to bring the present application. To some extent, Counsel for the Applicant relies on the making of the order for discovery on the 11^th March 2003 in this regard also, in the face of a submission by the Respondent and the Notice Party that the applicant is out of time for bringing this application under the provisions of Order 84 of the Rules of the Superior Courts. In an affidavit sworn by Mr Walley on the 8^th April 2003, he also states that the delay in the bringing of the application was a direct result of what he describes as the invitation by the Tribunal to make a legal submission to the Tribunal on the issue of costs. This refers to the letter to him from the Tribunal dated 21^st January 2003, and to the portion of it wherein it states:

"The Tribunal has not been furnished with any legal submission or argument based on precedent or statutory authority by you or any other party to the Tribunal which supports any other conclusion than that set out in the Tribunal's rulings in this regard."

While I do not interpret that sentence as an invitation to submit a legal submission, given that the Tribunal had already made two rulings on the issue of costs in question, Counsel for the Applicant has stated that he took it to be an invitation to make a submission, and that a legal submission was in fact, under very difficult circumstances in terms of time, furnished to the Tribunal. Accordingly it is submitted that time should not be regarded as running against the applicant as the matter was still ongoing between the applicant's solicitors and the Tribunal up to this moment, inspite of the fact that the Ruling in question had been made as far back as 22^nd. July 2002.

Counsel for the applicant also stated in his oral submissions that another reason why the application was not brought following the Ruling of 22^nd July 2002 or that of 22nd November 2002 was that it was not until December 2002 that many of the Garda officers were granted their right of representation and that it was therefore only as of that time that the applicant became aware that those against whom he was making his allegations would be legally represented by the Chief State Solicitor, and presumably Counsel, all funded from the public purse, whereas he and his family would be unable to avail of the legal representation afforded to them.

The Applicant's case:

On the 31^st March 2003, Counsel for the applicant made an application to the Court, grounded upon an affidavit sworn by the applicant on the 27^th March 2003 and its exhibits, for leave to apply, by way of Judicial Review, for the reliefs set out in the Statement of Grounds exhibited in the said affidavit. Having considered the application, the Court ordered that the applicant have leave to apply by way of Judicial Review for the following reliefs set forth at paragraphs D(2) to (6) of the Statement of Grounds, on the grounds set forth at paragraph E(1) to (13) of the said Statement. Those reliefs are as follows:

1. A Declaration that the Respondent's failure to provide legal assistance to the applicant to enable the applicant and his family to be legally represented at the proposed Inquiry being conducted by the Respondent constitutes a failure on the part of the Respondent to conduct the said Inquiry in accordance with fair procedures and a failure by the Respondent to vindicate the right of the applicant and his family to their good name and their right to earn a livelihood;

2. A Declaration that the Tribunals of Inquiry (Evidence) Acts 1921 to 2002, and the provisions of Bunreacht na h-Eireann to conduct the said Inquiry in a manner which is fair and in accordance with natural and constitutional justice, and that such conduct would require that the applicant and his family would have the opportunity to be legally represented before the said Tribunal and that, since they are unable to afford such representation, in any meaningful sense, the Respondent is charged with the responsibility to provide the applicant and his family with legal representation or the means for its procurement;

3. A Declaration that the failure of the Respondent to provide the applicant and his family with the means by which they may be legally represented at the said Inquiry being conducted by the Respondent constitutes a breach of constitutional rights of the applicant and his family, and in particular of their constitutional right to their good name and their right to earn a livelihood;

4. A Declaration that the provisions of the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 permits the Respondent to provide or to cause to be provided to the applicant and his family legal representation of sufficient means to enable the applicant and his family to secure legal representation at the hearing of the Inquiry to be conducted by the Respondent;

5. In the alternative, a Declaration that, insofar as the provisions of the Tribunals of Inquiry (Evidence) Acts 1921 to 2002 do not permit the Respondent to provide legal representation or the means to secure legal representation at the hearing of the Inquiry to be conducted by the Respondent, the Acts are invalid having regard to the provisions of Bunreacht na h-Eireann.

The grounds relied upon by the applicant in his Statement of Grounds are as follows:

1. That the applicant and his family have been granted legal representation by the Respondent for seven modules of the Inquiry to be conducted by the Respondent;

2. That the applicant and his family are unable to fund legal representation for the anticipated duration of the Inquiry to be conducted by the Respondent;

3. That the interests of the applicant and his family require that they be in attendance or be legally represented at the said Inquiry;

4. That the applicant and many members of his family will be unable to personally attend the Tribunal for long periods of time owing to the necessity for them to attend to their business interests or work commitments and, in the premises, it is essential that they should be legally represented at the said Tribunal;

5. That the good name of the applicant and his family could be damaged if they are not legally represented at the said Tribunal;

6. That several members of An Garda Siochana, against whom the applicant and his family have made serious allegations, will be represented at the said Tribunal by Counsel for the Commissioner of An Garda Siochana at public expense;

7. That several members of An Garda Siochana, against whom the applicant and his family have made serious allegations which will be investigated by the Respondent, will be represented at the said Tribunal by solicitor and Counsel funded by their vocational professional associations and that the applicant and his family will be subjected to hostile cross-examination from that quarter;

8. That the members of An Garda Siochana who conspired to damage the applicant and his family will be represented at the said Tribunal by a solicitor and Counsel funded by public funds and/or from the resources of representative associations which are derived ultimately from public funds and that, accordingly, there is a complete inequality of arms as between the applicant and his family on the one hand, and the Garda conspirators on the other;

9. That the applicant and his family have made serious allegations against the State and/or the Government of Ireland which will or should be investigated by the Respondent and the State will be represented by a solicitor and Counsel funded from public funds and that the applicant and his family will be subjected to hostile cross-examination from that quarter, between which and the applicant there is a complete inequality of arms;

10. That the Applicant and his family have made serious allegations against the Garda Complaints Board and that body will be represented before the said Tribunal by solicitors and Counsel funded from public funds and that the applicant and his family will be subjected to hostile cross-examination from that quarter between which and the applicant and his family there is a complete inequality of arms;

11. The Director of Public prosecutions will be represented at the Tribunal by solicitor and Counsel funded by public funds. The applicant and his family have made serious allegations against the Director and hostile cross-examination of the applicant and his family is reasonably to be anticipated from that quarter between which and the applicant and his family there is a complete inequality of arms;

12. That the right to a good name and to earn a livelihood, enjoyed by the applicant and his family, will be put in jeopardy or damaged, if adverse findings are made against them by the Respondent;

13. That the principles of natural and constitutional justice require that the applicant and his family be legally represented at the proposed Inquiry.

Pursuant to the said leave granted, the applicant issued and served a Notice of Motion dated 4^th April 2003 seeking the reliefs allowed by the said order of this Court dated 31^st March 2003. That motion was returnable for Tuesday 29^th April 2003. The said order had specifically not granted leave to the applicant in respect of injunctive relief as set out at paragraph D(1) of the Statement of Grounds, as the Counsel for the Applicant stated that it was not required at that time. However, on the 9^th April 2003, Counsel returned to the Court and applied for leave to serve short Notice of Motion on the Respondent seeking that relief, in other words an injunction restraining the Respondent from proceeding with public hearings connected with the seven modules with which the applicant is concerned, and from taking any steps on foot of the order for discovery made on the 11^th March 2003, until further order of this court.

On the 11^th April 2003, the Respondent appeared on foot of that Notice of Motion and undertook not to take any steps on foot of the order for discovery until after the determination of the judicial review proceedings herein, and in those circumstances it was unnecessary for the court to make any order on that date, save, on the application of Counsel for the Attorney General, to join the Attorney General in the proceedings, given the attack by the applicant to the constitutionality of the Acts in question. The Court also fixed the 30^th April 2003 for the hearing of the application for Judicial Review, and in those circumstances no further interlocutory relief was considered necessary in respect of the hearings due to commence before the Tribunal at the end of June 2003.

The application is grounded on the affidavit of the Applicant sworn by him on 27^th March 2003 and its exhibits, an affidavit of David Walley sworn on the 8^th April 2003 and its exhibits, and a further affidavit of David Walley sworn on the 30^th April 2003 in response to the replying affidavit sworn by Bernadette McCrombie on behalf of the Respondent on the 16^th April 2003.

Separate Statements of Opposition were filed by the Respondent and by the Notice of Party, both on the 17^th April 2003.

The said grounding affidavit of the applicant opens with the following paragraph:

"1. The facts hereinafter outlined originated in the death of Richard Barron on the 14^th day of October 1996 at Raphoe, County Donegal in suspicious circumstances. Following this event it became apparent that certain members of An Garda Siochana were intent on accusing members of my family of involvement in his death and thereafter set upon a campaign that involved the unlawful arrest, false imprisonment, malicious prosecution, libel and slander of your deponent and members of my family, staff and, which inter alia, resulted in severe personal injury, infliction of emotional suffering and the virtual destruction of my business. The Garda Officers concerned engaged in a campaign of spite against your deponent and my family because I had, some time beforehand, reported a colleague of theirs for corrupt practices, as a result of which he was permitted, by way of alternative to disciplinary action against him, by the Garda authorities, to retire from the Garda Force, thereby retaining his full pension entitlements. Certain of his colleagues lay in wait, patiently, in the long grass for your deponent and my family."

The following thirty eight pages of the affidavit set out in great detail the nature of the many actions alleged by the applicant to constitute the campaign referred to in the paragraph just quoted. There is no necessity for me to set out the details of those alleged actions and activities of which the Applicant complains, but suffice to say that if these allegations be true, and it is these allegations which are the subject of the modules before the Tribunal in respect of which the Applicant and his family have been granted legal representation, they would constitute a degree of corruption and illegality on the part of members of An Garda Siochana, which has never before come to the attention of the public. The consequences of findings of fact favourable to the Applicant and his family will have far-reaching consequences for those found culpable. The seriousness of the allegations is reflected in the wording of the Resolutions passed by both Houses of the Oireachtas on the 28^th March 2002, when the Oireachtas resolved that the Tribunal of Inquiry be set up. Of course it is a fact that the applicant and his family are certain that the matters of which they make complaint are true and beyond any dispute. In fact in relation to some of their allegations, they state that persons have been convicted. But for the purpose of this application, which is in respect of costs, it is important to keep in mind that the matters of which the applicant and his family complain are the very matters which the Tribunal has been set up to investigate and make findings of fact upon. This aspect is adverted to by the Tribunal in its letter to Messrs Walley & Co dated 21^st January 2003 where it is stated:

"We note that in the course of your letter of 17^th January 2003 a number of allegations are made against members of An Garda Siochana. These allegations concern some of the matters in respect of which the Tribunal could not and does not have any formed view at this stage. Therefore, whilst we note what is stated in your letter it would be quite inappropriate for the Tribunal to proceed on the basis that these assertions should be regarded as established facts."

The relevance of these matters is that by virtue of Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1975 as amended by Section 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997, a precondition to the making of any costs order is that regard must be had to the extent to which a person seeking costs has or has not co-operated with and provided assistance to the Tribunal, or has given false or misleading information to the Tribunal. It follows in the submission of the Respondent that he cannot make any advance provision for the applicant's costs because he must await the outcome of the hearings and the findings of fact emerging. He maintains that it is not open to him at this point to make any order in respect of the applicant's costs, given the precise wording of legislation.

At paragraph 10 of his affidavit the applicant refers to the fact that he is dissatisfied with the Terms of Reference of the Tribunal, and to the efforts he has made to have them extended to cover other matters he considers should be inquired into.

The remainder of this affidavit deals with the inability of the applicant and his family to fund a legal team, and the consequences for them resulting from that inability. Mr McBrearty says that he has a poor standard of education, has difficulty reading, and has no legal training. He says that in general the other members of his family concerned are not in a position to represent themselves. While he and his family are anxious to co-operate with the Tribunal, they are fearful of going before the Tribunal unrepresented, as they fear that the Garda officers whose Counsel will be cross-examining them, will attempt to justify their own action and inaction by further damaging him and his family. They feel that they have been subjected to many injustices since 1996, but that the greatest injustice of all is that which now faces them, namely of being, as they see it, forced into the Tribunal without the protection of legal representation and on the basis of an equality of arms. The affidavit puts it graphically in the following way:

"My family and I feel like persons who have been mauled by lions and who are being forced, on pain of severe penalty, into an arena, without any protection, where we will be required to place our heads in the mouths of the lions."

Mr McBrearty also avers to the fact that he and his family are extremely apprehensive at the prospect of hostile cross-examination by Counsel for those against whom he and his family have made very serious allegations. He points to the fact, as I have already referred to, that those very persons are being represented by legal teams which are being funded by their representative associations, and either directly or indirectly out of public funds. He refers also to the fact that if he and members of his family have to spend large amounts of time at the hearings of the Tribunal it will mean that he cannot attend to his business at those times, and his family members will be in a similar position by not being able to attend to their own livelihoods. He points to the fact that this puts them uniquely in a different position to others attending the Tribunal who will continue to receive their Garda salaries while at the Tribunal.

In particular, the applicant refers to the fact that Andrew McBrearty, who, he says, was the subject of an attempt to frame him for the murder of Richie Barron, is presently residing with his wife in America, and if left unrepresented, will have to return to Ireland and remain here during all relevant days of the Tribunal's hearings, whereas if he had legal representatives attending on his behalf, he could remain with his family and attend to his livelihood for periods during which his physical presence was not required at the Tribunal.

He also refers to the fact that already to date, he and his family have incurred massive legal bills in trying to defend themselves against the many actions on the part of those against whom they have made these serious allegations. They simply cannot afford to fund a legal team for this Tribunal, let alone discharge their existing liabilities to their lawyers. Mr McBrearty says that any findings made by the Tribunal adverse to him and his family would have very dire consequences for them and their good names, and that their property rights would be affected. He also points to the enormity of the documentation served upon them, and says that he and his family cannot master the detail and legal technicalities of same, and that, in relation to the discovery order made against him, his legal advisers cannot keep pace with the timescales being set by the Tribunal, due to the inability to properly fund a full legal team.

In his Affidavit sworn on the 8^th April 2003, David Walley, solicitor avers that in order to effectively represent his clients at the Tribunal, he would need to employ one further full-time solicitor, as well as two further secretarial staff, as well as acquiring additional premises over and above those from which he currently operates his practice. Those additional premises would, he says, also need to be furnished suitably and installed with the necessary telephone, fax, computer and photocopying facilities. In addition he needs to be in a position to engage senior and junior Counsel, and he says that he has been having difficulty securing the services of such Counsel due to his inability to guarantee their fees. He says that the present situation is tantamount to placing the burden of the applicant's legal assistance on him, which is something which he cannot afford to do. He also points to the difficulties already existing arising out of the order for discovery made on the 11^th March 2003.

In his affidavit sworn on the 30^th April 2003, Mr Walley deals with the submission made by the Respondent that the applicant is guilty of culpable delay in the bringing of the present application. He says that when the Tribunal made its ruling in relation to costs, the applicant and his family decided to go to the Tribunal as witnesses and that they believed that they would be able to do this as they believed that the conspiracy against them was by then historical. But, when the State served papers upon them just prior to Christmas 2002, they realised that this was not the case and that in fact the conspiracy was ongoing, with every opportunity being availed of by the Gardai to criticise and damage them, and that the Gardai are intent on justifying their suspicion of the applicant, his son, his nephew, his nephew's wife, and other family members.

Mr Walley states that it was during the months of January and February 2003 that the applicant and his family became increasingly alarmed by the contents of the documentation. They became convinced that it would not simply be a matter of turning up at the Tribunal and telling their story, but that they would be required to cross-examine Garda witnesses and challenge the version of the facts being put forward by those witnesses. They became convinced that it was after all necessary to try and obtain the services of their lawyers for the Tribunal, since they were completely ill-equipped to perform the task of cross-examination which they believe is absolutely necessary in order to protect their interests and good names.

Mr Walley states that his clients would be content to go before the Tribunal if all other parties did not have legal representation, and where all examination and cross-examination of witnesses was carried out by Counsel for the Tribunal.

In all the circumstances of the case, Mr Walley submits that time should not be deemed to have commenced to run until at the earliest Christmas week 2002, or in the alternative that the averments in his and other affidavits justify this court in extending the time for bringing the application under the Rules of the Superior Courts.

The Respondent's Case:

In answer to the documents filed on behalf of the Applicant, the Respondent has filed an affidavit of Bernadette McCrombie sworn the 16^th April 2003, and also a statement of Opposition dated 17^th April 2003.

In her said affidavit, Ms McCrombie states that she is the solicitor to the Tribunal, and she refers to the fact that prior to the 15^th July 2002 which was the date on which applications were heard for legal representation, the Respondent had stated, inter alia, the following:

"The right to representation is available in the main only to persons who might be prejudiced by the evidence given at the Tribunal or by a finding made by the Tribunal in the report which it prepares. They are entitled to be represented so that they may be in a position to refute any criticism which might be made of them, to cross-examine the person making the criticism and to give evidence in opposition…There is one further aspect of the question of representation before the Tribunal which should be considered. The fact that any person has been given the right of representation before the Tribunal does not automatically mean that person is entitled to recover the costs of that representation."

Having referred to some relevant passages from the judgment of Costello J. as he then was, in his report on the Whiddy Island Disaster, and of the present Chief Justice in his report on the Stardust Tribunal, the Respondent is quoted as follows:

"In my view, these are correct statements of the law and I believe that it is appropriate that the parties know this when they are applying for representation. However, parties to whom representation has been granted and who have been of assistance to the Tribunal and cooperated with it in its work could make a strong case for being awarded their costs."

In this affidavit, Ms. McCrombie also makes reference to a passage from the Ruling of the Respondent on the question of representation and costs dated 22^nd July 2002, and where the Respondent stated, inter alia, the following:

"As regards the wider issue of costs, Counsel addressing this issue are agreed that I cannot, pending the determination of the Tribunal, make any order in respect of costs. Relevant case law in that regard has been set out in the document, which I opened last Monday, 15^th July 2002. In addition to these reasons, however, there is another relevant provision of the Acts".

Having then referred to the text of the said Section 6 (1) of the 1921 Act, as inserted by the 1997 Act, the Respondent states:

"It is impossible for the Tribunal to have regard to the criteria set out in the aforesaid Act without first hearing the evidence and hearing submissions from various parties, both as to facts and as to costs. Under the terms of the legislation governing the Tribunal, this task is not possible until the close of the Tribunal's business."

Although not referred to in this affidavit, I refer again to part of the Tribunal's letter to Messrs Walley & Co dated 29^th January 2003 when the Tribunal indicated that it may be able to make a costs order at the conclusion of each module, rather than at the conclusion of the entire Inquiry.

The remainder of this affidavit deals with the Tribunal's efforts to obtain discovery of documents from the applicant, and explains the lengths the Tribunal has gone to in order to assure the applicant that the Tribunal will assist him in every possible way regarding the provision of his documents to the Tribunal, and the preparation of an affidavit of discovery, as well as with the task of examination and cross-examination of witnesses, in view of the difficult in which the applicant finds himself with regard to his legal representation.

In his Statement of Opposition filed on the 17^th April 2003, the Respondent, in pleading form denies that the applicant is entitled to the various declarations which he seeks from the Court. This document also alleges that the applicant is guilty of delay in bringing his application, and that there are no facts disclosed in the applicant's grounding affidavit which could be considered 'good reason' for extending time for making the application.

The Attorney General's case:

In his Statement of Opposition filed the 17^th April 2003, the Attorney General denies that the Tribunals of Inquiry (Evidence) Acts 1921-2002 are invalid having regard to the provisions of Bunreacht na h-Eireann, and also that they permit the Respondent to provide the Applicant with legal representation or the means to provide it. He also denies that in sofar as the said Acts do not permit the Respondent to provide legal representation or the means to provide it, that the said Acts are invalid having regard to the provisions of Bunreacht na h-Eireann.

Furthermore, the Attorney General pleads that there is no constitutional duty upon him or the State or the Respondent to provide the applicant with legal representation or the means to secure it, and that the applicant is not entitled to advance or rely upon arguments relating to the alleged rights and interests of the applicant's family.

Without prejudice to these pleas, the Attorney General pleads that the provisions of Bunreacht na h-Eireann do not impose any obligation on the Respondent to ensure that the Applicant has available to him the same level of legal representation as the other parties referred to by the applicant in his Statement of Grounds in this application, and further that the requirements of fairness and justice, as provided in Bunreacht na h-Eireann do not require that the applicant should be provided with legal representation, and/or that such representation be provided at the expense of the State or at all.

The Attorney General also pleads that the Acts in question provide for and permit interested parties to be legally represented at the proceedings of the Inquiry, and that an order has in fact been made permitting the applicant to be legally represented, and that accordingly the applicant has not been denied legal representation at the Tribunal.

In relation to the power of the Tribunal to deal with the matter of costs, paragraph 10 pleads as follows:

"10. Further, the Tribunals of Inquiry (Evidence) Acts, 1921 to 2002, provide, by section 6 of the Tribunals of Inquiry (Evidence)(Amendment) Act,1979 (as amended), for the making of orders in relation to the payment of the costs of persons appearing before Tribunals of Inquiry to which those Acts apply. In the premises, the Applicant will, in due course, be entitled to apply to the Respondent for an order directing that his costs of appearing before the Tribunal (including the costs of legal representation) should be discharged by some person (including, but not limited to, the Minister for Finance). While the making of such an order will be at the discretion of the Respondent, for the purposes of these proceedings this Honourable Court must assume that the Respondent's discretion will be properly exercised by him and that such an order will be made in favour of the applicant if it appears just and appropriate to do so, having regard to the matters referred to in section 6 of the 1979 Act (as amended).

It is pleaded that, accordingly, the Acts make just and adequate provision for the representation of persons before Tribunals to which those Acts apply, and for the payment of costs, and that therefore those Acts are not invalid having regard to the provisions of the Constitution.

Paragraph 12 pleads, for the avoidance of any doubt, that there is no provision in the Constitution which imposes any obligation on the State to confer on Tribunals of Inquiry, such as the Tribunal chaired by the Respondent, the power to adjudicate on the issue of costs or direct the payment of the costs of any person appearing before the Tribunal, prior to reaching any findings on the matters being investigated by such Tribunal.

The Legal Issues and Submissions:

Delay:

The Respondent has submitted to this Court that the Applicant is out of time for bringing this application. He contends that the Applicant has been guilty of inordinate delay having regard to the provisions of Order 84 Rule 21(1) of the Rules of the Superior Courts, and that this delay has not been explained in any satisfactory way. The Attorney General supports this submission. Counsel for the Respondent points to the fact that his client's Ruling on the matter of legal representation was made as far back as the 22^nd July 2002, over eight months prior to the application for leave to bring this application being moved on 31^st March 2003. He submits that the grounds upon which the Applicant seeks to rely on this application existed as of the date of the making of that Ruling, and it was open to the application to make his application within the three month period provided for under Order 84 of the Rules.

Order 84 Rule 21(1) provides:

"An application for leave to apply for judicial review shall be made promptly and in any event within 3 months from the date when grounds for the application first arose, or 6 months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made."

Counsel for the Respondent submits that no attempt has been made in the grounding affidavit of the applicant to explain this delay. He has also referred to the fact that a second Ruling was made in respect of the issue of legal representation on 22nd November 2003, but even if that date is taken as the date from which time began to run, the application is still brought outside the time permitted under the Rules.

Counsel also submits that the Applicant has sat back and has waited until a very short time before the Respondent is due to commence the public hearings of the Tribunal on 25^th June 2003, and that the Respondent has been therefore prejudiced by the applicant's delay, given that extensive and elaborate logistical and other arrangements have been put in place to enable those public sittings to take place, commencing in June 2003.

In answer to this submission, Counsel for the applicant has stated that after the first Ruling was made in July 2002, the applicant and his family formed the view that they would be able to attend the Tribunal as witnesses only, since their view at that time was that the matters they would be required to deal with before the Tribunal were historical, and they could come to the Tribunal and simply tell their story, so to speak, and that given their inability to fund a legal team, they would still be able to cooperate with the work of the Tribunal by attending as witnesses. They were content at that stage to allow the Tribunal Counsel cross-examine Garda witnesses on their behalf. Counsel says however that this view changed after his clients were served with a very large amount of documentation by the Tribunal in Christmas week 2002. He says that it was only when they began to look at this documentation in any detail that they realised that matters which they were going to have to deal with before the Tribunal were not simply historical in nature, but that the documentation disclosed to them for the very first time that the conspiracy which they allege the Gardai had been carrying on against them in order to damage their good name, and about which they were complaining over the previous years, was in fact ongoing and extending into the most private areas of their personal lives. They were, the court is told, truly horrified when they discovered this from the documentation.

Counsel for the applicant also referred to a letter dated 21^st. January 2003 which Messrs Walley & Co. received from the Tribunal in which reference was made to the fact that no legal submission or authority based on precedent or statutory authority had been received by the Tribunal which supports any conclusion other than that set out in the Tribunal's Rulings. Counsel says that this was interpreted by them as an invitation to make such a submission, and that such a submission was then made as quickly as was possible given the inability of the applicant to properly fund his legal advisers. This submission is a lengthy document which is exhibited in the applicant's grounding affidavit. Counsel therefore submits that the whole question concerning the Tribunal's ability to make provision for the applicant's legal representation, as opposed to granting him the right of representation, was still open as of that time, and that therefore the time for bringing this application had not commenced to run against the applicant.

In support of his submission that the applicant's delay is inexcusable and has not been explained, Counsel for the Respondent has referred to correspondence which took place between the applicant's solicitors and the Tribunal following the Ruling of 22^nd July 2002. He referred to a letter dated 23^rd August 2002 in which the applicant's solicitor stated:

"We wish to inform you that our clients will not be availing of the offer of representation as they find it imperative to bring their High Court litigation to an expeditious conclusion."

There is no mention of any challenge to the Tribunal's Ruling contained in this letter.

He refers to a letter dated 21^st October 2002 which acknowledged the Tribunal's letter dated 2^nd October 2002 which informed them of certain days in November 2002 on which the Tribunal intended to sit in Donegal . Messrs Walley & Co concluded their letter as follows:

"Our clients are not in a position to give us instructions in the matter and accordingly, we will not be attending."

There was a letter dated 24^th October 2002 dealing with a complaint about the caption on the Tribunals notepaper about which they took issue, but again no mention is made of any intention to seek judicial review of the Ruling of 22^nd July 2002. A letter dated 1^st November 2002 again refers to their clients' inability to fund a team of lawyers, but not to any intended application for judicial review.

On 14^th January 2003, Messrs. Walley & Co wrote a lengthy letter to the Tribunal dealing principally with the difficulty their clients will have in dealing with a request for discovery of documents, and requests a deferral of the matter of discovery until the Tribunal has dealt with other issues raised in that letter. That letter goes on to submit that any reasonable interpretation of the Acts, in the light of the provisions of the Constitution, forces them to the conclusion that in order to comply with its duty to conduct the Inquiry in accordance with fair and constitutional procedures, the Tribunal has the jurisdiction to grant legal assistance to their clients on an interim basis. They call upon the Tribunal do this, and warn that in the event of a refusal so to do, that their clients have instructed them to institute High Court proceedings seeking all necessary reliefs. And they refer to the possibility of having to join the Attorney General for the purpose of seeking a Declaration that the acts in question are unconstitutional.

That part of the letter is clearly written in the context of what precedes this threat of litigation, namely the fact that their clients will be exposed to hostile cross-examination at the hands of Counsel for the various Garda officers against whom complaints are made, and what they perceive as the manifest unfairness of the disparity of resources at their clients' disposal, when compared to the resources available to the those who will be cross-examining them. But towards the end of the letter reference is made to the vast quantity of documents which has been generated and the inability to deal with same in the absence of a full legal team.

The Tribunal replied promptly to that letter on the 21^st January 2003 indicating in some detail the steps which the Tribunal and its lawyers would go to in order to assist the applicant and his family in relation to the discovery of documents and in relation to the examination and cross-examination of witnesses. The Tribunal does not make any reference to the threat of High Court proceedings.

There is a further letter from Messrs Walley & Co dated 27^th January 2003 in which no further mention of proceedings is made, and another dated 10^th February 2003. The latter again refers to their clients' inability to fund their lawyers for the Tribunal, and in the final paragraph states:

"It will be our intention to make formal submissions to you before long on the matter of costs and we would ask that you defer the making of the order for discovery against Mr McBrearty until such time as that formal submission is made for your consideration."

That letter was replied to by the Tribunal in a letter dated the 17^th February 2003, and in which the Tribunal indicated that in the absence of any submission as to why an order for discovery should not be made, it was the intention to make an order for discovery on 19^th February 2003.

Messrs. Walley & Co responded by letter dated 21^st February 2003 in which they made reference to the difficulties under which they have been labouring due to the limited resources of their clients, but they indicated that that in relation to documents they were working on same as best they could, but that they were having difficulty maintaining pace with the progress of paper being presented by the Tribunal. They stated in the penultimate paragraph of their letter:

"As we have been working effectively in an informal capacity on all matters relating to the Tribunal to now, we have agreed with our clients, to seek to avail of the offer of legal representation made by the Chairman. We accept this offer without prejudice to any further action which our clients might propose to take in the future in the matter of an interim award of costs, and to that end, we hope shortly to present you with formal submissions."

The Tribunal replied on 11^th March 2003 noting that the offer of legal representation was being availed of and also noting that there were only limited resources available. In the light of that the Tribunal confirmed that it would send any documentation in triplicate and on discs.

Messrs Walley & Co wrote again on 12^th March 2003 enquiring as to the sequencing of the modules, and noted that the "Barron" module was commencing on 25^th June 2003, and concluded by stating that it would be enormously helpful at that time, and in ease of their clients, if the Tribunal could indicate whether it was intended that the Tribunal would be sitting during the months of August and September. The Tribunal replied to this letter on 25^th March 2003 giving the information sought.

The applicant's lengthy grounding affidavit was sworn on 27^th March 2003, and the application for leave to bring this application was made on 31^st March 2003.

Counsel for the respondent has submitted that nothing that happened since 22^nd July 2002, and nothing contained in the affidavit of Frank McBrearty sworn on the 27^th March 2003 has disclosed anything which would constitute good reason for this court exercising its jurisdiction to extend the time for bringing this application. Counsel referred the court to decisions in O'Loughlin v. Judge McMenamin, High Court, unreported, 15^th May 1997 (McGuinness J.) and Riordan v. An Taoiseach, High Court, unreported, 20^th May 1998 (Kelly J.) in which the High Court found that no reasonable explanation for delay in bringing the applications had been given. Counsel also referred to Bradley on Judicial Review (2000) where the author refers to the decision of Carroll J. in Finnerty v. Western Health Board, High Court, unreported, 5^th October 1998, in which Carroll J. stated, inter alia, that a decision which is a reiteration of a previous decision is not a new decision, and that time therefore begins to run on the date on which the final decision is first made. This is relevant in the present case, since the first decision by the Tribunal was made on 22^nd July 2002, and there was in effect a reiteration of that decision on 22nd November 2002 after the applicant had made his further submissions in person to the Tribunal on 19^th November 2002.

Counsel also referred to the decision of Barr J. in D.P.P. v. Judge McDonnell, High Court, unreported, 1^st October 1990, where the learned judge stated as follows:

"The obligation to apply promptly for such a relief is a primary requirement which ought not to be ignored and where, patently, prompt application has not been made, then an explanation for the delay should be put before the court. In the present case the application was a simple one arising out of undisputed facts which raised a net issue of law. In the absence of any explanation for delay in making the application until the last possible date within the rule, I am compelled to hold that the application was not made promptly, and therefore, the applicant failed to comply with the requirements of the rule and has disentitled himself to the relief which he seeks."

This decision highlights the wording of Order 84 Rule 21(1) where it refers to the necessity to bring the application "promptly and in any event within 3 months from the date when grounds for the application first arose"(my emphasis)

The most recent authority to which the Court was referred to by Counsel for the Respondent is the decision of the Supreme Court delivered on the 4^th April 2003 in the case of Dekra Eireann Teoranta v. The Minister for the Environment and Local Government and another. In her judgment in this case, Mrs Justice Denham deals with the question of delay on the part of the applicant. She states at page 23 of the unreported judgment:

"In this specialist area of judicial review there is a clear policy underlying the law. The policy includes the requirement that an application for a review of a decision to award a public contract shall be made at the earliest opportunity. There is a degree of urgency required in such applications. The applicant should move rapidly. The requirement of a speedy application is partially based on the prejudice to the parties and the State in delayed proceedings. Also, there is the concept that the common good is best served by rapid proceedings. The necessary balance to protect fair procedures is met in the saver that the court may extend time for such application for good reason."

Referring to the requirement that good reason must be furnished to the court when seeking to have the time extended, the learned judge referred to the decision of Costello J, (as he then was) in O'Donnell v. Dun Laoghaire Corporation (1991) I.L.R.M. 301 where that learned judge stated at page 315:

"The phrase 'good reason' is one of wide import which it would be futile to attempt to define precisely. However, in considering whether or not there are good reasons for extending the time I think it is clear that the test must be an objective one and the court should not extend the time merely because an aggrieved plaintiff believed that he or she was justified in delaying the institution of proceedings. What the plaintiff has to show (and I think the onus under Order 84, r 21 is on the plaintiff) is that there are reasons which both explain the delay and afford a justifiable excuse for the delay. There may be cases, for example, where third parties had acquired rights under an administrative decision which is later challenged in a delayed action. Although the aggrieved plaintiff may be able to establish a reasonable explanation for the delay, the court might well concede that this explanation did not afford a good reason for extending the time because to do so would interfere unfairly with the acquired rights (The State (Cussen) v. Brennan (1981) I.R. 181).

Or again, the delay might unfairly prejudice the rights and interests of the public authority which had made the ultra vires decision in which event there would not be a good reason for extending the time, or a plaintiff may acquiesce in the situation arising from the ultra vires decision he later challenges or the delay may have amounted to a waiver of his right to challenge it and so the court could not conclude that there were good reasons for excusing the delay in initiating the proceedings."

In his judgment in the Dekra case (supra), Mr Justice Fennelly refers to the fact that in that case the delay in bringing the application was only ten days outside the three month period under Order 84. He went on to say that it was only where good reason for the delay was demonstrated that any question of prejudice to other parties must be considered. He states:

"An applicant who is unable to furnish good reason for his own failure to issue proceedings for Judicial Review 'at the earliest opportunity and in any event within three months from the date when grounds for the application first arose' will not normally be able to show good reason for an extension of time. In particular, he cannot, without more, invoke the absence of any prejudice to the opposing party as the sole basis for the suggested good reason."

In the present case I am satisfied that the 22^nd July 2002 is the date on which the applicant's grounds for applying for Judicial Review first arose, and that his obligation to move promptly under Order 84 commenced. It is clear from the letter dated 23^rd August 2002 written by the applicant's solicitors to the Tribunal and from which I have quoted above, that the applicant had made at decision as of that date at least that he and his family would not be availing of the right to legal representation which they had been granted by the Tribunal on 22^nd July 2002. Indeed, that letter goes on to inform the Tribunal that thenceforth any correspondence from the Tribunal should be sent directly to their clients, suggesting that a decision had also been taken that Messrs Walley & Co would no longer be acting in the matter. This fact was confirmed in a letter dated 21^st October 2002 when those solicitors referred again to the fact that their clients were not in a position to instruct them in relation to a sitting of the Tribunal on 4^th November 2002. This position was again reiterated by letter dated 1^st November 2002, although they had written to the Tribunal on 24^th October 2002 as I have already mentioned, in relation to the caption on the Tribunal's notepaper.

Counsel for the applicant has stated, although it is not averred to in the applicant's grounding affidavit, that it was not until the Tribunal served a large quantity of documentation upon the applicant in Christmas week 2002, that they realised that it would not be sufficient to merely turn up at the Tribunal and tell their story as witnesses, in view of the contents of some of that documentation to which I have already referred, and that alarm bells started to ring. He says that it was only then that grounds for bringing their application first arose. I cannot accept this. What they found out during and presumably after Christmas may have provided them, according to their submissions, with additional grounds for their application, but it cannot be said that following the Ruling of 22^nd July 2002 there were no grounds arising for the present application. If the applicant has grounds now for saying that his constitutional rights to fair procedures on the grounds of equality of arms are compromised by not being provided with the means to secure legal representation, that was the position immediately following the Ruling on 22^nd July 2002. The November Ruling was merely a reiteration of that Ruling, which is a relevant fact in the light of the decision of Carroll J. in Finnerty v. Western Health Board to which I have referred above.

It is clear from the Transcript of the proceedings before the Tribunal on 15^th July 2002, when applications for representation were being heard that the difficult situation in which the applicant and his family find themselves was brought to the attention of the Tribunal and that his Ruling was made in the knowledge of those difficulties. While Mr McBrearty Snr. reiterated those difficulties to the Tribunal on 19^th November 2002, the matter had already been addresses in July. The relevant passages of the Transcript for 15^th July 2002 appear on page 75 and pages 79-81.

The fact that no step was taken by the applicant within the 3 month period prescribed by Order 84 was also in my view a waiver of their right to bring their application, or at least an acquiescence to the situation in which they found themselves. This is borne out by the correspondence between their solicitors and the Tribunal to which I have referred.

To find that good reason has been shown as to why the court should extend the time in the circumstances submitted to the court would amount to accepting that because of their impecuniosity or their inability to adequately fund a legal team, the applicant and his family are in a unique position and that this alone is sufficient to constitute a good reason. That could not be correct and would mean that any impecunious litigant in a civil proceeding is in a different position to a litigant of more substantial means, and that different rules should therefore apply. That proposition is not supported by any authority, and I cannot therefore accept it as the correct legal position.

While any court would naturally have the utmost sympathy for the applicant and his family for the position in which they find themselves, the Rule is quite clear and unambiguous in its terms. I am not satisfied that the applicant moved to bring his application promptly or in any event within 3 months from the date when grounds for the application first arose, in the circumstances of this case, and I therefore must refuse to extend the time for bringing this application. I should add for the avoidance that when the application for leave was moved on 31^st March 2003, the question of delay was not considered at that point, and no application for extension of time was made at that time.

Having found as I have, there is strictly speaking no necessity to go on and make findings in relation to the other matters arising on the applicant's application. However, in view of the urgency of this matter given the imminence of the commencement of the Tribunal's public sittings, and the possibility that an appeal may be taken against my decision, it is preferable that I make findings in relation to all matters so that, in the event of such an appeal, it can extend to all matters and not simply the finding that there are no grounds to extend time.

Locus Standi:

Firstly, the Attorney General refers to the principles emerging from Cahill v. Sutton (1980) IR 269, that normally where a person is seeking to question the validity of a statute on the grounds of unconstitutionality, such a person must point to an interest or right of his which has been breached or is in danger of being breached by reason of the alleged invalidity. In the words of Henchy J. in that case at page 284:

"If a citizen comes forward in court with a claim that a particular law has been enacted in disregard of a constitutional requirement, he has little reason to complain if in the normal course of things he is required, as a condition of invoking the court's jurisdiction to strike down the law for having been unconstitutionally made (with all the dire consequences that may on occasion result from the vacuum created by such a decision) to show that the impact of the impugned law on his personal situation discloses an injury or prejudice which he has either suffered or is in imminent danger of suffering."

At page 286 of the same judgment, the learned judge continued:

"The primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the statute, or some other person for whom he is deemed by the court to be able to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person' interest have been adversely affected, or stand in real or imminent danger of being adversely affected, by the operation of the statute."

As a statement of principle, there can be no dispute that this is correct and in fact the applicant took no issue with same. The Attorney General submits that in order to establish standing, the applicant is obliged to establish by evidence that he and those for whom he speaks are unable by virtue of lack of financial resources, to fund their legal representation. He points to the lack of any such evidence in the grounding affidavit of the applicant, and to the fact that the only evidence relating to the applicant's means emerging from the affidavit is that he owns and operates three licensed premises and a nightclub in Raphoe. The applicant's Counsel pointed out to the court that in fact the affidavit avers that the applicant is a publican who owns and operates The Parting Glass pub together with Frankie's Bar and Niteclub and the Tudor Bar and Lounge in the village of Raphoe. This is contained at paragraph 2 of the grounding affidavit. Counsel for the applicant informed the court that in fact those premises are all part of a single licensed premises, despite the fact that they are listed separately in the affidavit. Counsel for the Attorney General asks the court to take judicial notice of the fact that such businesses are profitable and that no evidence to the contrary has been shown to the court. In this regard, Counsel for the applicant has referred to passages in the applicant's affidavit indicating that the business in question has been adversely affected by the publicity generated by the actions of the gardai over the years in question against the applicant and his family and that this business will be further adversely affected by the applicant and his family having to attend and prepare for the Tribunal's hearings, and that their financial position will be worsened accordingly. He also of course refers to the fact that the applicant has already incurred massive liabilities to his lawyers since October 1996 by having to defend the 160 summonses brought against him by the gardai, which summonses were heard over a period of 50 days, and in respect of which he was represented by solicitor and junior and senior Counsel. In addition, the applicant and his family have been engaged in other expensive litigation arising out of matters which are the subject of the Tribunal's Inquiry. It is for these reasons that the applicant's Counsel submits that it is clearly demonstrated by the affidavit that the applicant and his family cannot afford to fund their legal representation. In fact, Mr Martin Giblin S.C. for the applicant, stated in his oral submissions that if Bills of Costs were served on the applicant in relation to costs already incurred, there could be little doubt but that the applicant would be rendered bankrupt.

In any event, Counsel for the Attorney General refers the court to the fact that it manifestly not so that the applicant cannot afford legal representation, since he has solicitor and Counsel acting for him in this application, and it appears from the correspondence to which I have already referred that the applicant's solicitor is now acting for him in relation to the Tribunal. In this regard, the letter dated 21^st February 2003 from Messrs Walley & Co to the Tribunal is relevant. The Attorney General states that the applicant has legal representation therefore, and that while it may not be the level of representation which he would wish in an ideal world, the fact is that he is represented. He also points to the fact that what the applicant is seeking by way of representation is funding up front by the Tribunal for the employment of an additional solicitor, and additional secretarial staff, 2 Senior Counsel, 1 Junior Counsel, as well as a research Counsel, as well as additional office accommodation and equipment for his solicitor. This he submits is an unreasonable expectation.

I am satisfied that under the principle stated in Cahill v. Sutton (supra), that the applicant has standing to bring this application on his own behalf and on behalf of his family and extended family on whose behalf he also speaks. It is beyond doubt, in my view, that their interests have been or stand to be adversely affected by the matters complained of. They have a clear interest to attempt to protect. Taking a broad view of the description of their financial position, and the financial burden they have been carrying since 1996 in relation to what must inevitably have been very sizeable legal costs as described in the grounding affidavit, I am prepared to accept that, given the inevitably lengthy proceedings before the Tribunal in which the applicant and his family are involved, and the costs already incurred, that the applicant and his family would not be in a position to fund a reasonable level of representation for the duration of the Tribunal, even bearing in mind the expressed willingness of the Tribunal to consider making costs orders at the conclusion of each module.

Secondly, the Attorney General submits to this court that in the circumstances of the present case the applicant has no locus standi in circumstances where he is contending that the unconstitutionality of the Acts arises not so much from what is contained therein, but from what has been omitted. In other words, if the court were to find in favour of the applicant, the result would be to strike down the legislation, or at least a particular section thereof, in its entirety, and thereby achieve nothing of benefit to the applicant. It would as a consequence mean only that others in addition to the plaintiff would be deprived of the right to have a costs order made in their favour under the existing provisions of the Acts. The Attorney General submits that this is just the sort of situation which the courts have consistently stated cannot be allowed to arise, and that therefore the applicant lacks the required locus standi in the present application in sofar as he is challenging the constitutionality of the Acts, or a particular section or sections thereof.

In support of this submission, Counsel for the Attorney General relied on the decision of the Supreme Court in Todd v. Murphy (1999) 2 IR 1. In that case the applicant had sought to strike down section 32 of the Courts and Court Officers Act, 1995 which provides for the transfer of certain criminal prosecutions to the Dublin Circuit Court in certain circumstances, on the basis that it did not provided for an right of appeal from the decision of the Circuit Court Judge. The section in fact provides that the decision to grant or refuse such transfer shall be final and unappealable. The applicant had sought the transfer of his trial to Dublin but had been refused. Affirming the decision of the High Court, Lynch J. (delivering the judgment of the Court) stated at page 8 as follows:

"There is no right of appeal at common law. It follows that if the Court struck down the concluding words of the s.32(1) of the Act of 1995 there would be no right of appeal at all, because none is provided by the remainder of the section. For there to be a right of appeal, it has to be provided by statute because Article 34.3.4 of the Constitution declares that it is to be" a right of appeal as determined by law". On the other hand if the court were to strike down the whole of s.32(1) of the Act of 1995 then there would be no power to transfer the trial of the applicant to Dublin at all, which would accordingly remain in the Cork Circuit Criminal Court.

It follows that the applicant cannot benefit from an order that either the concluding words of s.32(1) or the whole of that sub-section are repugnant to the Constitution and invalid. Consequently, the applicant has no locus standi to maintain such a claim and it would be contrary to the jurisprudence of the Supreme Court to go into the matter any further."

Counsel noted also that a similar approach was adopted by Keane J. (as he then was) in Somjee v. The Minister for Justice and the Attorney General (1981) I.L.R.M. 324 where he held that if the plaintiff's claim succeeded, the section in question would be invalidated but this would not result in the applicants' rights being vindicated and in these circumstances the action was not sustainable. At page 327, the learned judge (as he then was) stated as follows:

" The result of the plaintiffs' argument, if well founded, would be to invalidate s.8 in its entirety. It might also have the same effect so far as s.16(d) and (e) are concerned. That would confer no benefit whatever on the plaintiffs: it would not redress any injustice to which either of them was subjected or in any sense known to the law vindicate their personal rights. While the possibility that there exists in our law a right of action akin to an actio popularis which would entitle any person, whether he was directly affected by an Act or not, to maintain proceedings and challenge the validity of that Act, was left open by the Supreme Court in East Donegal Co-operative v. The Attorney General (see page 338), I know of no basis on which such an action is sustainable where it cannot be shown that the right of any person will be thereby vindicated or protected. It is not the function of the Court, in my view, to indulge in an academic exercise which will be utterly futile so far as the plaintiffs are concerned; and, apart from the other considerations to which I have referred, this seems to me to be a fatal obstacle to the granting of the relief which they have sought in the present proceedings. The plaintiffs' claim will therefore be dismissed."

Counsel stated that this case was also authority for a related principle, namely that, where as in this case, the constitutional validity of an enactment is challenged, the function of the court is limited to adjudication on that challenge and that it is no function of the court to substitute for the impugned section(s) some different provision or even to direct the Oireachtas to enact such a provision. In Somjee (supra), Keane J. (as he then was) stated as follows at page 327:

"The jurisdiction of this court in a case where the validity of an Act is questioned because of its alleged invalidity having regard to the provisions of the Constitution is limited to declaring the Act in question to be invalid, if that indeed be the case. The Court has no jurisdiction to substitute for the impugned enactment a form of enactment which it considers desirable or to indicate to the Oireachtas the appropriate form of enactment which should be substituted for the impugned enactment."

This statement was made in the context of a submission made by Counsel for the plaintiffs that in circumstances where a consequence of the court finding in their favour was that the entire of the impugned section would fall, that the court would be entitled to declare that the plaintiffs' rights had not been vindicated by the Oireachtas, in the expectation that the Oireachtas would take whatever steps were necessary to ensure that their rights were in fact protected. The learned judge rejected this proposition as ill-founded, noting that no authority was cited in support of same. I shall return to this point in the light of a submission made by Counsel for the applicants in the present case that a more recent decision in McMenamin v. Ireland (1996) 3 IR 100 is authority for the court making such a declaration.

The limited jurisdiction of the Court to which I have referred was also reiterated by the Supreme Court in McMathuna v. The Attorney General (1995) 1 IR 484.

For these reasons the Attorney General submits that the applicant in the present case lacks the necessary locus standi to maintain his claim in these proceedings that the Acts in question are invalid having regard to the provisions of the Constitution.

The applicant's Counsel, Gerard Hogan S.C. acknowledged immediately the difficulty which confronts the applicant in the face of these authorities. Before addressing this particular issue, Mr Hogan stated that he would reserve, if necessary, the right to argue before the Supreme Court, that these decisions have been wrongly decided. But, while acknowledging the existence and weight of these authorities, he submits that the Supreme Court has on occasion indicated that there can be circumstances where the Court can render what he describes as an "admonitory decision", which he explains as a decision in which the Court identifies a constitutional lacuna and at the same time urges the Oireachtas and the Government to rectify the position. He referred to the McMenamin case (supra).

In that case, the applicant was a judge of the District Court who complained that the failure on the part of the Oireachtas to revise the judicial superannuation entitlements contained in the Courts (Supplemental Provisions) Act, 1961 in the light of changing mortality tables and other factors, amounted to a breach of Article 35 of the Constitution. At first instance, Geoghegan J., having found that a constitutional injustice arose, decided that he would grant a declaration that the State, in permitting a gross inequality to arise in relation to the pension matters in issue, was in breach of its constitutional duty to secure pension rights for judges which were not irrational or wholly inequitable. However, on appeal, the Supreme Court (per Hamilton C.J.) felt that, out of respect which the separate organs of government have traditionally shown to one another, and it should stop short of an actual declaration. Hamilton C.J. stated at page 136:

"I am satisfied that once the Government is made aware of the situation with regard to this constitutional injustice, it will take the necessary steps to have the matter remedied in accordance with law and its constitutional obligations."

A similar approach was favoured by O'Flaherty J. in the same case. Mr Hogan submits that in the present case where the applicant's complaint is not so much what is contained in the Acts but what is omitted, that such a declaratory order could and should be made by this court, or at worst the sort of admonitory statement such as that made by Hamilton C.J. in the hope and expectation that the Government would have the matter remedied now that the injustice arising has been brought to its attention.

As framed in the applicant's Statement of Grounds, the challenge to the constitutionality of the legislation extends to the entire of the Tribunals of Inquiry (Evidence) Acts 1921 to 2002. This is clear from the relief sought at paragraph 6 thereof. However, on a number of occasions during the course of the hearing, Counsel for the Attorney General invited or urged Counsel for the applicant to specify clearly which particular provisions were sought to be impugned. Counsel for the applicant was obviously in some difficulty in that regard, but eventually, and in my view quite rightly, conceded that it had to be confined to the provisions of section 6 of the Tribunals of Inquiry (Evidence) Act, 1979 as substituted by section 3(1) of the Tribunals of Inquiry (Evidence)(Amendment) Act, 1997, which provides:

"(1) When a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the resolution passed by each House of the Oireachtas relating to the establishment of the tribunal or failing to co-operate with or provide assistance to, or knowingly giving false or misleading information to, the tribunal), there are sufficient reasons rendering it equitable to do so, the tribunal, or the chairperson, as the case may be, may, either of the tribunal's or the chairperson's own motion, as the case may be, or on application by any person appearing before the tribunal, order that the whole or part of the costs –

(a) of any person appearing before the tribunal by Counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order;

(b) incurred by the tribunal, as taxed as aforesaid, shall be paid to the Minister for Finance by any other person named in the order."

It follows therefore that, if the court were to find that this section should fall on the basis that its terms do not adequately protect the constitutional rights of the applicant and his extended family by failing to provide the applicant in advance of the hearing with the means to secure legal representation, the entire section would fall and that the tribunal would not have any power to grant any order for costs to any party at any time.

I am satisfied that this part of the Attorney General's submission is correct and that the applicant does not have any locus standi to seek to strike down section 6, on the basis that were he successful it would avail him nothing. Whether the court should, in the event of finding that the constitutional rights of the applicant are not protected and vindicated by the section, proceed and grant either a declaration, or at least the sort of admonitory order as argued for by Mr Hogan on the basis of the McMenamin decision and to which I have referred, must await my conclusions on the remaining issues to be decided.

The Powers of the Tribunal to award Costs:

I have already set out the terms of section 6 of the 1979 Act as substituted by section 3(1) of the 1997 Act. It is clear that the only power the Tribunal enjoys to make any order in relation to costs is contained in that section. This matter was considered by Laffoy J. in Goodman v. Minister for Finance (1999) 3 IR 356. The learned judge states at page 367:

"In any event, the significance of the decision is that, save and insofar as the Act of 1979 empowers it to make an order for costs, a tribunal established under the Acts of 1921 and 1979 has no power to award costs or other monies to a party represented before it. Moreover, such a tribunal is only empowered to direct payment by the defendants, pursuant to an order made under s.6, out of monies provided by the Oireachtas to the extent that it is clearly expressed in the Act of 1979."

The Respondent and the Attorney General submit that there can be no question but that the Tribunal has been given no power to make an order for the costs to be paid or at least guaranteed by the Tribunal ahead of its making findings at the conclusion of the Inquiry. This submission is based on the wording of the section itself, which requires the Tribunal in its consideration of any application for costs to have regards to certain criteria, namely the findings of the Tribunal, the extent to which a party has failed to co-operate with the tribunal during the course of the hearings, and the extent to which a party may have given false or misleading information to the Tribunal. Clearly, they submit, the Oireachtas intended these matters to be taken into account before making any award of costs to a party, and that cannot be done until after the Tribunal has completed its work.

The Tribunal has already in its rulings of July and November 2002 indicated its willingness to consider the matter of costs at the completion of each module of the inquiry. It has also indicated that it would have power to provide a viaticum to any witnesses called to give evidence. But these matters apart, I am completely satisfied that the Tribunal has no power under the section, as contended for by the applicant, namely to make provision for, or at least guarantee in advance, the costs of the applicant's legal representation, or those of his family or his extended family. The applicant is not therefore entitled to any of the reliefs claimed at paragraphs 2, 3, 4 or 5 of section D of his Statement of Grounds.

Constitutionality of the Acts and in particular Section 6:

There can be no doubt but that the 1979 Act and the 1997 Act which amended it enjoy the presumption of constitutionality. It has not been argued otherwise in this court by the applicant. It is clear also, therefore, that this court must presume that the discretion vested by section 6 in the Tribunal in relation to any award of costs will be exercised by the Tribunal in a lawful manner. In that regard, Counsel has referred the court to the following passage from the decision of the Supreme Court in East Donegal Co-operative Livestock Mart Ltd v. The Attorney General (1970) IR 317 at 341, where Walsh J. stated:

"At the same time … the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions, and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts."

The onus on the applicant in seeking to establish the unconstitutionality of section 6 is a heavy one. This court was referred by Counsel for the Attorney General to, inter alia, the judgment of the Supreme Court in Croke v. Smith (No.2) (1998) 1 IR 101 at 112, where it is stated:

"The approach of the Court when considering the constitutionality of a law passed by the Oireachtas or any provision thereof is well established.

It was held by the former Supreme Court in Re Art.26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 (1940) IR 470 at 478 that:-

"Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.""

In cases where the Court has any doubt about the question of constitutionality arising from two possible interpretations, one of which is constitutional and the other not, the interpretation favouring validity must be given – see East Donegal Co-operative Livestock Mart Ltd v. The Attorney General (supra).

The facts and circumstances which the applicant submits entitles this court to grant the declaration sought in paragraph 6 of the reliefs set out in the Statement of Grounds on the basis that his constitutional right to fair procedures is not protected and vindicated by the terms of section 6 of the 1979 Act as amended, are set out in some detail earlier in this judgment, and there is no need to repeat them now. In essence, the applicant says that since 1996 he and his family have been subjected to an appalling level of harassment by the gardai, involving the bringing of over 160 summonses against him in relation to his licensed premises amounting to malicious prosecution, an attempt to frame a member of his family for the murder of Richie Barron by way of a fabricated confession, the fabrication of evidence alleging that the applicant and members of his family were dealing in drugs in his licensed premises, the publication of a circular in garda stations designed to encourage a campaign of harassment of him and his family in the Donegal area, unlawful arrest, false imprisonment, libel and slander, the obtaining of false statements, and assault. He also maintains that a number of garda officers have given false evidence under oath in court. All of this activity on the part of the garda officers concerned, he says, was for the purpose of damaging the applicant's business interests and the good name of himself and his family and extended family, and he alleges that its purpose by the garda officers is to gain revenge against the applicant for the fact that he complained of corrupt practices by another garda, as a result of which that garda officer was permitted, by way of an alternative to disciplinary action, to retire from the Garda Force, retaining his full pension entitlements. He says that his business and good name, and that of his family and extended family have been seriously damaged as a result of these activities.

It is alleged that a family member, Mr Andrew McBrearty emigrated to the United States as a result of the harassment by him at the hands of the gardai, and that he had to return to Ireland on four occasions in order to defend himself against false charges relating to drugs, brought against him, and that he has still to recover the expenses involved in this.

Since 1996, the applicant and his family have already incurred heavy legal expenses arising out of the matters complained of. They have been unable to discharge those liabilities, and as I have already referred to, Counsel for the applicant, Martin Giblin S.C. has informed the court that if Bills of Costs were served in respect of all costs incurred to date, his clients would be bankrupted.

The applicant and his family now see that when they attend the hearings of the Tribunal as witnesses, they will be faced with cross-examination by Counsel acting for the parties against whom he and his family are making very serious allegations. He has no doubt but that in an effort to justify their actions against the applicant and his family, those gardai will continue to attempt to discredit them in every possible way, as they have done in the past. Indeed, Mr Giblin indicated that it is apparent from the large volume of documentation served on the applicant by the Tribunal just before last Christmas, that the gardai are continuing to attempt to damage the good name of the applicant and his family, and that they are inquiring into the most intimate areas of their lives on an ongoing basis. The applicant and his family were shocked when they discovered that the campaign against them was still ongoing, and this fact has increased their sense of alarm and apprehension at the prospect of having to go before the Tribunal without the aid of a full legal team, in circumstances where what they perceive as their opponents will all have their full legal representation by solicitor and Counsel funded for them either out of public funds or by the representative associations. It is submitted that there is an absolute inequality of arms.

The applicant highlights the fact that he has only a poor standard of education, has difficulty reading, and has no legal training. The same applies to the other members of his family. They would have no capacity to examine witnesses or cross-examine witnesses. They would not be aware of when and in what circumstances they would be entitled to interrupt a witness and make any legal submission relating to the admissibility of any evidence or documents. They would not be able understand in any meaningful way the documentation generated by the Tribunal, nor are they familiar with the technology which will be used by the Tribunal. Their capacity to even read, not to mention understand, the volume of documentation served upon them, is extremely limited. Counsel submitted that a trained lawyer has the training and experience to read quickly through documents, appreciating easily what is relevant and what need not be read. That would not apply to the applicant and his family who would feel constrained to read every word of every document lest they omit to read something crucial. They are, he submits, in a hopeless situation in this regard, which puts them at a unique disadvantage as regards their opponents.

Mr Giblin submits that the applicant's good name and reputation, and that of his family, will be at stake in the Tribunal, in the event that any findings made by the Tribunal favour the evidence given by their opponents, as they see them. This would amount to them not being believed, and it would vindicate the version of events which will be given by the gardai. In this way the applicant would be and his family will be further discredited in a very public way. They are also at risk, he submits, because of the terms of section 6 and the criteria against which an application must be judged. There is a risk of a costs order being made against him or members of his family in the event of a finding that they have not co-operated or have mislead or given false evidence to the Tribunal.

It is in the light of the above considerations that Counsel submits that the applicant's constitutional right to fair procedures is not protected by the terms of section 6. He submits that inspite of the fact that the Tribunal has found that the applicant and his family are entitled to be legally represented before the Tribunal, that right is of no benefit to them where they cannot afford to fund that representation in advance of the hearings. Counsel says that this is not a situation such as occurs every day in the courts, where lawyers take a case 'on the hazard', so to speak, on behalf of litigants who are unable to afford to pay their lawyers, in the hope and expectation that they will be paid in the future. The scale of the Inquiry, and the central role which the applicant and his family will undoubtedly play in the work of the Tribunal, Mr Giblin submits, means that whatever lawyers are acting for the applicant will have to devote themselves on a full-time basis to their clients for the duration of the Tribunal's work, or at least those seven out of ten modules which directly relate to the applicant, including during the period leading up to the commencement of the hearings. Those lawyers would inevitably have to abandon the remainder of the practices for the duration of the Tribunal, which Giblin submitted might be for upwards of two years. In those circumstances, solicitor and Counsel could not be reasonably expected to wait until the conclusion of the Tribunal's work to see whether, in the light of the Tribunal's findings and the other factors to be taken into consideration under the provisions of section 6, an order for costs would be given to the applicant. It was beyond any doubt, he submitted, that if no order for costs was made, the applicant could not possibly be in a position to discharge his costs which would be enormous given the time involved.

The applicant apparently made an application to the Government for the provision of assistance in order to fund a legal team but this has been refused. They feel in a hopeless position, which is described by the applicant in his affidavit in the following way:

"My family and I feel like persons who have been mauled by lions and who are being forced, on pain of severe penalty, into the arena, without any protection, where we will be required to place our heads in the mouths of their maulers."

The applicant submits that the guarantee of fair procedures which the applicant and his family enjoy, includes, in the unusual, if not unique, position in which they stand as central figures in the Tribunal, and the risks to which they are exposed as to their good names, both business and personal, the right to have provision made in advance of the Tribunal's hearings, for the legal representation of the applicant and his family. In the light of the authorities discussed below, both Mr Giblin and Mr Hogan lay great emphasis on the uniqueness of the applicant's position, both as to the scale of the difficulties that will confront him and his family in their dealings with the Tribunal if left unrepresented, and as to what they say is the unparalleled harassment and intimidation which they have endured since 1996 and the catastrophic effects this had had on their lives, both business and personal, and their health, at the hands of gardai who will be funded in respect of their legal representation at the Tribunal where they will be seeking to defend their actions and vindicate their good names at the expense of the reputation and good names of the applicant and his family. They say that without such provision being made in advance, the right to be legally represented is an empty right devoid of any meaning or reality.

I have already set out the relevant portions of the affidavit of Ms. Bernadette McCrombie, solicitor on behalf of the Tribunal, sworn the 16^th April 2003. This affidavit draws attention to the terms of the Tribunal's Rulings on costs made on the 22^nd July 2002 and the 22nd November 2002, which clearly demonstrate that the question of the applicant's inability to fund the representation he was granted, and those submissions were taken into account. In particular the Ruling of 22^nd July 2002 refers to the fact that on that occasion Counsel for the applicant accepted that under the provisions of the Acts the Tribunal has no power to make any order for costs pending the Tribunal's determination of the issues arising, and then only having regard to the matters set out in Section 6 of the 1979 Act, as amended.

I draw attention again to paragraph 9 of the said affidavit where it is averred that "the Tribunal at all times has sought to render the fullest assistance to the applicant". She makes reference to a letter dated 21^st January 2003, from the Tribunal to the applicant, and to which I have already referred in some detail, and which sets out in great detail the assistance which the Tribunal is willing to extend to the applicant in the matter of discovery of documents, and also the fact that during the course of the hearings Counsel for the Tribunal will examine and cross-examine all witnesses as appropriate. That letter also explains that the Counsel to the Tribunal have a more wide-ranging duty in the course of the oral hearings than Counsel to a party in civil proceedings, arising from the fact that proceedings before the Tribunal are not adversarial in nature, but in the nature of an Inquiry seeking to establish the truth. The Tribunal expresses the hope that this explanation of the nature of the Tribunal's function and procedures will help assuage the applicant's concerns about the prospect of facing cross-examination on his evidence.

Inspite of these assurances, Mr Giblin has submitted that even the best efforts of Counsel for the Tribunal will not and cannot substitute adequately for the services of Counsel and solicitor acting on behalf of his clients. He says that they would not have the benefit of consultations with Counsel before giving their evidence, or after they have given their evidence, in the way they would with their own Counsel. Neither, he submits, would the Tribunal's Counsel be focussed on the particular needs and concerns of the applicant and his family at these times, but rather on the work generally of the Tribunal.

He states also that the applicant and his family cannot be expected to have confidence in the Counsel acting for the Tribunal. He does not say that in any way that is personally critical of the Counsel in question, all of whom he would personally hold in the very highest regard, but the fact is, he states, that his clients have serious reservations about the terms of reference of the Tribunal, which have been drawn to the attention of the Tribunal, and the process taking place is one of which they have the gravest suspicions, and in which they feel at great peril. In those circumstances, his clients cannot be expected to have confidence that their interests will be properly safeguarded in the same manner as they would be if they had their own legal team. He further submitted that these suspicions and fears were real as far as his clients are concerned, especially given his clients' experiences in the past where they have been submitted to the grossest abuses at the hands of other emanations of the State.

It is against this factual background that the relevant legal principles must be considered in determining whether the right to fair procedures which the applicant and his family enjoy extends beyond the right to be legally represented, and as far as having that legal representation funded or provided for at this point in time, before the Tribunal has commenced its oral hearings, and whether the safeguards referred to by the Tribunal in its letter dated 21^st January 2003, and the Tribunal's expressed willingness to consider the question of costs at the end of each module, is insufficient to protect and vindicate the applicant's constitutional rights.

Relevant Case-law:

An appropriate starting point in considering the legal principles applying in this case is The State (Healy) v. Donoghue (1976) IR 325, which held, inter alia, that where an accused person faces a serious charge and, by reason of lack of education, requires the assistance of a qualified lawyer in the preparation and conduct of a defence to the charge, then if the accused is unable to pay for that assistance, the administration of justice requires (a) that the accused should be afforded the opportunity of obtaining such assistance at the expense of the State in accordance with the Criminal Justice (Legal Aid) Act, 1962, even though the accused has not applied for it, and (b) that the trial of the accused should not proceed against his will without such assistance if an appropriate certificate under s. 2 of the Act of 1962 has been granted in relation to the trial of the accused.

In that case, the accused person had pleaded guilty to criminal charges of breaking and entering, and was sentenced to three months detention in St. Patrick's Institution. However, the District Judge had failed to inform the accused that he was entitled to apply for legal aid before sentencing him, and the Supreme Court decided that justice required that he be informed of his right to apply for legal aid before sentence was passed, and accordingly the conviction and sentence could not stand.

At page 350, O'Higgins C.J. states as follows:

"The general view of what is fair and proper in relation to criminal trials has always been subject to change and development………If the right to be represented is now an acknowledged right of an accused person, justice requires something more when, because of a lack of means, a person facing a serious criminal charge cannot provide a lawyer for his own defence. In my view the concept of justice under the Constitution, or constitutional justice (to use the phrase used in the judgments of this court in McDonald v. Bord na gCon, in East Donegal Co-operative v. The Attorney General and in the majority judgment of this court in Glover v. B.L.N.) requires that in such circumstances the person charged must be afforded the opportunity of being represented.

This opportunity must be provided by the State. Only in this way can justice be done, and only by recognising and discharging this duty can the State be said to vindicate the personal rights of the person charged. To hold otherwise would be to tolerate a situation in which the nature and extent of a man's ability to defend himself, when accused, could depend on the nature and extent of his means; that would be to tolerate injustice…"

I quote this passage at some length to highlight, if that be necessary, the extent to which this decision is confined to the context of an accused person facing serious charges, and where it follows that his liberty is at stake. It is not and cannot be authority for any wider proposition that even in an exceptional case, but one stopping short of any risk to a person's liberty, there is a right to have legal representation paid for by the State, whether before a hearing or at its conclusion. The fact that it so confined with pointed by O'Higgins C.J. the following year in his judgment in The State (O) v. Daly (1977) IR 312, when he stated as follows:

"There is a danger that the decision in Healy's case (1976) IR 325 may be misunderstood in the sense that it may be regarded as applying to situations and circumstances which were not contemplated. It is worth recalling, therefore, that the decision in that case applies only to the trial of persons charged with criminal offences and not to earlier or ancillary stages of criminal proceedings. It has to do with the circumstances in which the interests of justice and the requirements of a fair trial necessitate that the person charged be provided with legal assistance if he cannot provide such for himself. Regard must be had to the seriousness of the charge having regard to the person charged, the nature of the penalty he faces and his capacity in the circumstances to speak for and defend himself adequately. Obviously the approach ought to be flexible rather than otherwise, as the circumstances of each case must dictate what justice in those circumstances requires."

That case related to a point in the proceedings at which an enquiry into the mental health of an accused person was being conducted by the District Judge, in a District Mental Hospital, in order to determine whether he ought to be transferred to the Central Mental Hospital, and at that point the accused was not facing trial or any punishment. The Supreme Court found that the accused was not entitled to legal aid for the purpose of that enquiry.

In M.C. v. The Legal Aid Board (1991) 2 IR 43, Gannon J., dealing with an argument by a respondent in nullity proceedings that in such a proceeding the person in question should be entitled to have the defence of those proceedings funded by the State, stated:

"The fact that the existence of fundamental personal rights is expressly recognized by the Constitution does not impose on the State any duty to intervene in aid of a party involved in any private civil dispute in relation to such personal rights. The temporary exigencies of circumstances special to a particular individual cannot afford a ground for drawing the State into a civil dispute of a private nature."

In passing I mention that the Respondent and Notice Party in the present case submit that as far as the Tribunal is concerned it is not even administering justice. It is simply an investigative process into certain facts in order to establish the truth, and that in any event the applicant and his family are merely witnesses being called to assist in that process. No penalty can flow in their direction, however much they may eventually disagree with or find fault with the findings made, and no matter to what extent their good names and reputations, as they might perceive them, are affected by the outcome of the Tribunal's findings.

There have been a number of decisions to which I have been referred and which have dealt with the question of an entitlement to legal aid in relation to hearings before an administrative tribunal. In Corcoran v. The Minister for Social Welfare (1991) 2 IR 175, the issue raised was whether an applicant before an appeals officer exercising quasi-judicial powers under the Social Welfare Consolidation Act, 1981 was entitled to be legally aided. The matters at issue were recognised by Murphy J. to be of central importance to the applicant, namely whether he was entitled to unemployment assistance, but he drew attention to the fact that the case did not involve any criminal charge against the applicant, and nether was it even asserted that he had perpetrated any civil wrong. The only matter was whether his means exceeded a certain figure. At page 183, Murphy J. concluded:

"No precedent or authority has been produced for the general proposition that a lay tribunal exercising a quasi-judicial judicial function must afford to the parties appearing before it an opportunity to procure legal advice and be represented by lawyers. Less still is there authority for the proposition that the State would be bound to pay for such assistance……………In my view it is a bold assertion to suggest that citizens, however limited their education or unfortunate their circumstances, have a constitutional right to free legal aid to argue the inadequacy of their means before a deciding officer or appeals officer under the social welfare code."

The Respondent and Notice Party submit that in Corcoran what was at stake for the plaintiff was a matter of grave importance for him, and the outcome of the proceedings before the appeals officer could have serious consequences for the plaintiff, but even in such circumstances, no entitlement to legal aid was found. Still less so, they submit, could the applicant in the present case have such an entitlement since he is merely a witness giving evidence, and is not at any peril regardless of the outcome. The applicants on the other hand submits that the potential damage which he and his family could suffer both to the business and their personal good names, is far greater than for the plaintiff in Corcoran.

The applicant relies heavily on two interesting cases in which Lardner J. was able to find an entitlement to legal aid in matters which were not criminal in nature. In each case the decision in State (Healy) v. Donoghue (supra) was relied upon by the applicant. The cases in question are Stevenson v. Landy (unreported, High Court, 10^th February 1993), and Kirwan v. Minister for Justice (1994) 2 IR 417. In the former, the Eastern Health Board brought Wardship proceedings against the applicant in respect of her infant son, who was under two years of age. The mother suffered from a psychological condition. Legal aid had been refused to the applicant. Her application was refused on the grounds that the Board was of the view that in her application form she had failed to make a case that could warrant the conclusion that she would be reasonably likely to be successful in the proceedings. In fact the application form completed by the applicant she had not included any statement of her case, and Lardner J. felt that in those circumstances the Board could only have refused the application. The Scheme however required that the Board make an adjudication on the particular facts, and it was clear to the learned judge that the Board could not have done so in that case. Another problem confronting that applicant was how does one establish a prospect of success in Wardship proceedings. Perhaps success is not a concept to that type of proceeding, but rather to inter partes civil proceedings. Lardner J. states at page 10 of the unreported judgment:

"Where in cases concerning the welfare of children, a Court is concerned to hear evidence and submissions and then determine what particular orders would be best for the welfare of the child, an applicant/parent who wishes to make a case which it appears likely will be of assistance to the court in reaching its decision, may properly be regarded as being likely to be successful within paragraph 3.2.3.(4)."

He concludes on page 12:

"The Legal Aid Certifying Committee and the Appeals Committee on appeal should consider applications for legal aid in the light of the views which I have expressed above. It is in my view necessary that this should be done in order that the constitutional requirement that the courts should administer justice with fairness be given efficacy."

It seems clear that this decision is not establishing any constitutional right to have legal aid in Wardship proceedings where none was thought previously to exist; but rather is stating such proceedings were included under the Legal Aid Scheme and that the concept of success, the likelihood of which was one of the criteria which the Board was to consider, had to be given a sui generis meaning, given that success is a concept more appropriate to a civil lis inter partes. It is important to note also that Lardner J. was stating that it was important in relation to the administration of justice that the Legal Aid Board reconsider the application in the light of his comments. The Respondent and Notice Party submit that in the present case, the Tribunal is not administering justice at all, and no rights or interests of the applicant will be adjudicated upon.

The applicant accepts that the facts of the present case are different of course, but draws a comparison in two respects, namely that in Stevenson the applicant's adversary was funded by the State and the decision making process would have enormous implications for the applicant's future. These similarities, in my view, are too tangential to permit of a conclusion that because of them the applicant in the present case should be funded before the Tribunal, which is not administering justice, and there is no right or interest of the applicant upon which any adjudication will be made. The situation is utterly different in these essential respects.

In the case of Kirwan v. Minister for Justice (supra), Lardner J. again had to address these issues, but in very different circumstances, where the liberty of the plaintiff was at stake, though not in criminal proceedings. The applicant had been found guilty but insane in relation to a charge of murder and was detained in the Central Mental Hospital. The applicant sought legal aid in respect of the preparation of a detailed application for his release, which was to be heard by an advisory committee set up to advise the Minister on the question of release of such persons. Legal aid was refused on the basis that the Legal Aid Scheme in place did not cover such applications. Lardner J. found that the applicant was entitled to legal aid in those circumstances, where the question at issue related to the liberty of the applicant who was in statutory detention. He stated also that questions of public safety arose.

It is true that Lardner J. stated that the procedure in Kirwan was executive rather than judicial in character, and that nonetheless it had to comply with the constitutional requirement of fairness, and that this included the right to legal aid; but the crucial point again in Kirwan is that the plaintiff's liberty was at stake. That consideration is sufficient to bring it within the principles of Healy's case.

The Stephenson case and the Kirwan case have to be seen in the light of their particular facts, and it is simply not possible to extrapolate from them any principle of general application, or of particular application to the applicant in these proceedings.

Other decisions in which those appearing before administrative Tribunals have been found not entitled to legal funding of their representation include Malocco v. The Disciplinary Tribunal (unreported, High Court, 16^th October 2002, and a very recent case of A v. The Medical Council (unreported, High Court, 28^th April 2003).

All the decisions referred to above in relation to the question of whether there is any right to have funding for legal representation before an administration tribunal, as opposed to before a court administering justice in a criminal trial, or other proceeding in which personal liberty is at stake, emanate from and rely upon a decision of Gannon J. in K. Security Ltd & anor v. Ireland and the Attorney General (unreported, High Court, 15^th July 1977).

The applicant has sought to distinguish his case from that case in order to try and avoid the precedental value of the decision of Gannon J. in relation to the very question at issue in these proceedings, namely whether there can be a constitutional right to be represented before the Tribunal, at the expense of the State, in respect of some person appearing as a witness and against whom the focus of the Inquiry's Terms of Reference is not directed. Gannon J. answered this question in the negative.

In K Security, the second named plaintiff, William Kavanagh, was a witness before the Tribunal which had been set up to investigate into a television programme which related to unlicensed money-lenders and their activities. He was a private investigator who has carried out investigations and had obtained information in relation to unlicensed money-lenders in Dublin, and had also introduced certain persons to RTE for the purposes of the programme. Following the programme, there was a good deal of publicity, and there were allegations that the programme had been exaggerated. When the Inquiry was commenced, Mr Kavanagh felt that his reputation was at stake, and that it would be therefore important to be represented at the Tribunal, even though he was just a witness. There was apparently some allegation that he might have bribed some of the persons who gave information for the programme, and there was some suggestion that some of the persons who had been introduced by him to the RTE for the programme were not authentic.

At the time of this Inquiry which was set up under the 1921 Act, there was no power vested in such a Tribunal to make any order in relation to costs, but it could grant persons the right to be represented. Mr Kavanagh was so allowed. Ultimately, he sought his costs at the conclusion of the Tribunal, because while he had been in a position to discharge a portion of those costs, he could not afford to discharge the remainder. It was argued that since the legislature authorized an enquiry into a matter of public importance, it followed that the public fund must bear the costs and expense of the enquiry. That cost and expense, it was argued included the costs of the plaintiff since he had been authorizes to have such representation. It was argued that the power to award costs was to be inferred from the fact that the Tribunal had the power to enquire into and determine the necessity for representation of persons before it. Gannon J. rejected this submission, saying:

"The fact that a Tribunal to which the Act may be applied is empowered by the Act to authorise interested parties to be represented before it is no basis for implying that the Act confers authority on such a Tribunal to award the costs of such representation to those parties at the expense of or as a charge upon the public funds. The public funds are entrusted by the Constitution to the care of the Government subject to the strict control and supervision of the legislature upon whose resolutions in both Houses of the Oireachtas the constitution and authority of this Tribunal are founded. The very nature of the functions of the legislature in relation to the control and disposition of public funds is such that any Statutory Authority for payment out of or a charge upon public funds must be clearly expressed and cannot be a matter of implication as contended for on behalf of the second named plaintiff."

In this context I draw attention to the fact that under the 1979 Act, as amended by the 1997 Act, the legislature has in fact laid down the manner in which the question of costs is to be addressed by the Tribunal, so there is no question of any inference having to be drawn, as there was in the K Security case. But, the second leg of the argument put forward in that case was that by virtue of Article 40.3 of the Constitution the plaintiff had a right to be reimbursed by the State out of public funds in respect of costs incurred by him in the necessary representation before the Tribunal for the purpose of defending his good name, reputation, business connection and property rights from unjust attack and only thus could the State be seen to vindicate those rights.

In addressing this argument, Gannon J. stated:

"The functions committed to the Tribunal were essentially inquisitorial involving the eliciting of evidence, the evaluation of evidence, the ascertainment of facts, the drawing of inferences of facts and the presentation in the form of their report of the facts and inferences with comment supporting or explaining their assessment of evidence. The Tribunal does not appear to have been invested with any authority to adjudicate or pass judgment or make any order or impose any sanction……………In so far as the plaintiff was one of the persons whose activities might have been a cause of injustice to the citizens whose rights were of concern of the enquiry he may properly have felt that his interest in the proceedings before the Tribunal was more than that of a witness. But the Tribunal had no function nor authority to deal with the plaintiff or his activities in any way other than in his capacity of a witness before them. In my opinion neither the good name, reputation, business connection or property rights nor any other personal rights of the plaintiff were ever interfered with or exposed to unjust attack or injustice of any kind in the proceedings before the Tribunal nor did they require vindication or defence during the course of the proceedings of the enquiry…………

The foundation of the plaintiff's claim for the declaration and order sought is that had he not had the means to enable him to engage the services of solicitor and Counsel he would have been entitled to require such professional services to be provided for him at State expense. This argument has been advanced as a corollary to the decision of the Supreme Court in The State (Healy) v. Governor of St, Patrick's and others (unreported dated 22/7/1976). All the judgments delivered in the Supreme Court on that appeal lay emphasis on the constitutional duty of a court undertaking the trial of a person charged with a criminal offence to be vigilant to ensure that the trial is in all respects fair and just. The several judgments give substantial guidance as to the standards of fairness under the predominant concept of justice to be observed in relation to the particular circumstances of the person appearing before the Court. But none of the judgments go so far as to declare that every person charged with a criminal offence has a constitutional right to have the expense of his defence paid out of State funds. Neither can it be logically or rationally deduced from any of these judgments that every person who has incurred the expense necessary to secure with the aid of solicitor and Counsel a fair and just trial has a constitutional right to be recouped such expense out of State funds. Even if I were incorrect in holding that the plaintiff's position before the Tribunal on the enquiry was not analogous to that of a person charged with a criminal offence the arguments advanced in support of the claim are without foundation and are unconvincing."

I have quoted this passage at some length, firstly because the judgment itself is unreported, and secondly because there is such a marked similarity between the position of Mr Kavanagh in K. Security, and the applicant in the present case. Counsel for the Respondent and the Notice Party both submit that the argument put forward by the applicant in the present case is the very argument rejected by Gannon J., and that there is no reason for this court not to regard it as authoritative, even though it given by a court of equal jurisdiction. They also point to the fact that the decision has been followed, for example, by Barrington J. in Condon v. C.I.E.(unreported, High Court, 22^nd November 1984). In that case, the plaintiff was a steel plate worker with CIE and the Tribunal in question was set up in order to ascertain the reason for a train crash at Buttevant, Co. Cork in which a number of people lost their lives. There was at least an implication that that the plaintiff was responsible for the position of the points on the day in question, and while the Tribunal was investigating the cause of the crash, a finding that it was the points would have clear implications for the good name and reputation of the plaintiff. Inspite of this Barrington J. found that as a witness he had no entitlement to have the costs of his representation paid for out of State funds. Barrington J. found that Article 40.3 required that the plaintiff be afforded an opportunity of defending himself, but that his rights did not include the further proposition that the State must pay for that representation.

Counsel for the applicant, on the other hand, submit that this court should not proceed on the assumption that the matters at issue have been conclusively decided in K. Security. Mr Hogan attempts to distinguish the present case from K. Security on its facts. In this regard he points out that in the latter case, Mr Kavanagh had actually retained both solicitor and Counsel, and that he had paid part of these costs but that he was no longer in a position to discharge the balance. These factors, Counsel submits, are serious distinctions. He also draws attention to another point of distinction arising from the judgment of Gannon J. where he states:

"Neither the good name, reputation, business connection or property rights nor any other personal rights of the plaintiff were ever interfered with or exposed to unjust attack or injustice of any kind before the Tribunal nor did they require vindication or defence during the course of the proceedings."

Counsel submits that the good name and reputation of the applicant in the present case is, by contrast, very much at stake in the Morris Tribunal. He says that like the applicant in Re Haughey (1971) IR 217, he is not a mere witness, but is the most central figure in the entire Tribunal, and unlike the plaintiff in K. Security, he will not have the assistance of solicitor and Counsel. This in fact does not appear to be exactly the case given Mr Walley's letter to the Tribunal dated the 23^rd February 2003 to which I have earlier referred and in which they stated:

"As we have been working effectively in an informal capacity on all matters relating to the Tribunal to now, we have agreed with our clients, to seek to avail, of the offer of legal representation made by the chairman. We accept this offer without prejudice to any further action which our clients might propose to take in the future on the matter of an interim award of costs, and to that end, we hope shortly to present you with formal submissions."(my emphasis).

It would appear that the applicant will at least have the benefit of Mr Walley's advice and professional skills before and at the Tribunal, whatever about Counsel. Be that as it may, Counsel also points out that, unlike Mr Kavanagh, the applicant could have an order for costs made against him.

Mr Hogan submitted that the fundamental principle underlying the State (Healy) v. Donoghue, even though it concerned a criminal trial involving loss of liberty, is that the State is obliged to provide assistance for legal assistance for persons whose constitutional rights would otherwise be gravely in jeopardy, and that it was this which permitted Lardner J. to expand the category of cases in which legal assistance would be given, as he did, in Stephenson v. Landy, and Kirwan v. Minister for Justice (supra).

The points of distinction sought to be drawn by Counsel for the applicant between K. Security and the present case are not in my view convincing to the point where I could depart from the decision.

It is true that Gannon J. drew a distinction between Mr Kavanagh and a person whose good name, reputation, business connection or property rights were interfered with, or exposed to unjust attack or injustice of any kind "in the proceedings before the Tribunal", but it is another thing to go on to conclude that the applicant in the present is in such a position. In my opinion he is not, although the scale of the inquiry in which he is involved is a great deal larger. Neither he nor his family is the focus of the Inquiry's attention. That is the important thing to remember. No finding adverse to his good name and reputation can be made, even though a necessary consequence to findings in favour of the gardai is, in the applicant's view, a finding adverse to the applicant. In my view, Gannon J. had in mind a person, unlike Mr Kavanagh, whose own reputation and good name was the focus of the inquiry when he stated as he did. It must also be remembered of course that Gannon J. was deciding the issues in K. Security at a time when a Tribunal set up under the 1921 Act had no powers whatsoever to make any award of costs. At the present time, the Tribunal can make a costs under the provisions of section 6, and that is an important factor when considering the extent to which the applicant's rights are protected by the provisions of the legislation, although Mr Giblin made the point that this was in fact another point of distinction between K. Security and the present case since the present applicant could in fact fall foul of section 6 and have a costs order made against him unwittingly. I also repeat that contrary to Mr Hogan's submission, the applicant does appear to have some level of representation, even if this falls short of the level of representation he would like to have at his disposal, but that matter is only of incidental interest in so far as if he did not even have the benefit of Mr Walley's skill and expertise, the situation would be no different in my view as far as the legal authorities are concerned.

For completeness sake, I should say that I was also referred to a decision of the Australian High Court in New South Wales v. Canellis 124 ALR 513. The applicant has referred to this case, although I have to say that it appears to support the Respondent and Notice Party's case rather than the applicant, in that a person who appeared to have a great deal to lose at the Tribunal, was regarded as mere witness and not given the right to legal representation, let alone the cost of it. The judgment pointed to the fact that no findings could be made against a witness, and that while procedural fairness in a criminal matter required that an accused person be represented and that such representation should be funded in appropriate cases, the principle could not be extended to a witness at a Tribunal. However, the applicant drew attention to this decision for the purpose of pointing out that it did not appear to have taken into consideration the Salmon Report . In addition, Mr Giblin stated that the Tribunal in Canellis was strictly confined by the terms of the Act under which it was set up, whereas in the present case, the Tribunal has very wide powers, constrained only by its terms of reference, and that the Tribunal could make findings adverse to the applicant's good name. He also submitted that the Morris Tribunal was more in the nature of a lis inter partes, given the allegations and counter-allegations which would be made, whereas the Tribunal in Canellis could not be characterised in that way. I do not think that Canellis adds anything to the consideration of the issues I have to decide. Neither is the Salmon Report to which I was referred. It indicates, inter alia, what Lord Salmon considers an ideal situation, where all witnesses appearing before a Tribunal should have their costs of appearing paid for. He sets out other matters which he thinks should exist for fair procedures to exist. It would be another matter altogether to consider that in this jurisdiction we should immediately follow suit, in the face of the legal authorities to which I referred. It may well be that the executive should have some regard to what Lord Salmon has stated, if and when it ever revisits the question of the costs of witnesses at Tribunals, but that Report is of limited value to this court.

I conclude, for all the reasons appearing, that the applicant's rights to fair procedures, and those of his family and extended family, under Article 40.3 of the Constitution, cannot be regarded as including the right to have their legal representation funded or provided for in advance of the Tribunal reaching findings. None of the authorities to which I was referred can be interpreted sufficiently widely so as to permit of such an interpretation. The legislature has revisited the question of the costs of those appearing at Tribunals, and has decided how the matter is to be dealt with. It has decided to strike a balance between the right of some parties to whom representation has been granted to have their costs paid for, and the public's right to be protected from a situation where all witnesses who have been granted representation at the Tribunal would have their costs discharged from public funds, regardless of whether they had co-operated or not, or given false or misleading information. In so deciding, due regard is had to the right of persons to have their costs paid, provided that they have co-operated. In this particular case, there is also further protection afforded to the applicant in that the Tribunal has indicated in ease of his situation that he may consider making costs orders at the conclusion of each module. Furthermore, the applicant's rights and interests can be adequately safeguarded, albeit not to the extent desired by the applicant, by the fact that the Counsel appearing for the Tribunal will be charged with the responsibility of examining and cross-examining witnesses, as the Tribunal has pointed out in its letter dated 21^st January 2003. The Tribunal has been set up in order to inquire into the very matters of which the applicant and his family have made complaint. It is incumbent on the Tribunal to fulfil its statutory mandate and uncover the truth. In the event of a conflict of evidence arising, it will of course be the duty of Counsel for the Tribunal and others to cross-examine witnesses in order to test the credibility of the evidence, and to otherwise make every possible effort to arrive at a conclusion. The applicant and his family are in the position where if the truth is as they see it, they have nothing to fear from cross-examination, as the truth speaks loud. They will be obliged to do nothing more than tell their story and deny any matter put to them which does not accord with that truth. It is true that the experience they may endure under cross-examination, may be one that they will find stressful and even intimidating. That is only natural, as it is with many witnesses who appear before the courts every day without representation. But the applicant must also remember that the Chairman of the Tribunal is a man of immense experience and integrity, charged with the responsibility of ensuring that the proceedings before him are conducted in a fair manner, and this includes the manner in which Counsel for a party will not be allowed to overstep the mark in terms of the aggressiveness with which any cross-examination is conducted, the more so where the witness in question has no Counsel or solicitor appearing for him.

In relation to the matter of discovery of documents, the Tribunal has indicated a willingness to assist the applicant in the manner outlined. Again, it is clear that if that offer is taken up, or if Mr Walley is able, as he appears to have now indicated he is, to complete the discovery of documents, even though the time has expired, the Tribunal would not needlessly take any steps against the applicant of a penal nature in that regard. He can be assured that all the procedures adopted by the tribunal will be carried out in a constitutionally fair way.

It follows from these conclusions that I must therefore refuse the relief sought under this heading, either by way of declaration that rights have been breached, or even what Mr Hogan described as McMenamin-style relief by way of an admonitory statement. I do this with great regret, as nobody could but have sympathy for the parlous position in which the applicant and his family find themselves. The extent of the Inquiry, both as regards time involved, as well as the vast amount of documentation with which they have been served, does indeed put them in a position of some uniqueness compared to the facts of the cases on which I must decide the issues in this case.

If there was any way in which a point could be stretched in relation to the various issues I have had to decide, so as to find that the position of the applicant and his family was so different as to not require me to follow the decisions to which I have referred, I would have been prepared to do so, not just in the interests of the applicant, but in the interest of the Tribunal itself. I say this because it seems to me that if the applicant does not have the benefit of the services of solicitor and Counsel for the duration of the Tribunal and leading up to its commencement, the burden of assisting the applicant and his family will fall to the Tribunal, its solicitor, Counsel and staff, and their work will be greatly increased, and indeed it is likely that the work of the Tribunal could thereby take longer to complete. Conversely, if the applicant had the benefit of a reasonable level of representation, the work of the Tribunal might be eased. However, the Government has refused to assist the applicant, the legislation does not permit the Tribunal to assist ahead of making findings, and the case-law does not permit of an exception in the applicant's case under Article 40.3 of the Constitution. I therefore refuse the relief sought.

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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McBrearty v. Morris [2003] IEHC 154 (13 May 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/154.html Cite as: [2003] IEHC 154