THE HIGH COURT
		1997 No. 15310 P
BETWEEN
CHARLES J. HAUGHEY,  MAUREEN F. HAUGHEY,  EIMEAR MULHERN,
ETHNA HAUGHEY AND MAUREEN HAUGHEY
		PLAINTIFFS
AND
MR. JUSTICE MICHAEL MORIARTY, CLERK OF DAIL EIREANN, CLERK OF SEANAD EIREANN, IRELAND AND THE ATTORNEY GENERAL
		DEFENDANTS

Judgment of Mr. Justice Geoghegan delivered the 20th day of January, 1998

	This is a motion for discovery brought against the first named Defendant as sole member of a Tribunal established under the Tribunals of Inquiry (Evidence) Act, 1921 as amended and against the fourth named Defendant, Ireland.
	In order to put in context the application for discovery it is necessary to explain briefly the nature of the action itself.  The Tribunal has been established to enquire into (among other matters) firstly whether any substantial payments were made to the first named Plaintiff during the period he held political office i.e. between the 1st January, 1979 and the 31st December, 1986 in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office, secondly, the source of any money held in certain Ansbacher accounts for the benefit or in the name of the first named Plaintiff, or a person or company connected with him, thirdly, whether any payment was made from money held in any of these accounts to any person who holds or has held public office and fourthly whether the first named Plaintiff did any act or made any decision in the course of his ministerial offices to confer any benefit on any person making such a payment or any person who was the source of money of the kind referred to or on any other person in return for such payments being made or procured, or directed any other person to do such an act or make such a decision.  There are a number of other matters to be enquired into under the terms of reference also but it is not necessary to detail these.  The matters which I have referred to are couched in a summary or paraphrased form.   The first named Plaintiff, Mr. Haughey, has launched these proceedings along with other members of his family from whom financial information was sought by the Tribunal to put a stop to the Tribunal of Inquiry insofar as it relates to the Plaintiffs.  If the Plaintiffs' proceedings are successful the workings of the Tribunal will be halted at least insofar as they relate to the Plaintiffs and there can be no further enquiry under the existing terms of reference.  The Plaintiffs in these proceedings have formulated a number of alternative grounds of attack on the Tribunal.  These grounds of attack can be summarised as follows:-
1.	That the Tribunals of Inquiry (Evidence) Act, 1921 as amended is inconsistent with the Constitution and therefore does not form part of Irish Statute Law.
2.	That Dail Eireann and Seanad Eireann acted unconstitutionally in directing the Taoiseach to establish a Tribunal of Inquiry into the matters set out in the resolutions of the Dail and Seanad.
3.	That the Taoiseach's order establishing the Tribunal is invalid since the Dail and Seanad had been allegedly acting ultra vires.
4.	That the first named Defendant as sole member of the Tribunal is conducting the Tribunal so far in a manner which infringes the Plaintiffs' constitutional rights and which is ultra vires the powers conferred on him by the Tribunal of Inquiry (Evidence) Acts 1921 to 1997.
	These contentions have all been put on issue on the pleadings.
	As the lists of documents sought to be discovered in this motion as against the first named Defendant and the fourth named Defendant respectively are separate and distinct, I will deal first with the documents sought against the first named Defendant.  These documents are as follows:-
(a)	all orders made by the Tribunal against any person, company or institution concerning any aspect of the Plaintiffs' affairs;
(b)	all documents upon which any orders made by the Tribunal were based;
(c)	all drafts of orders of discovery of the Tribunal;
(d)	all correspondence between the Tribunal and institutions or persons against whom discovery orders have been made or sought;
(e)	all requests for information (including documents) made by the Tribunal of any Government Department or T.D. seeking evidence or information concerning the Plaintiffs' affairs;
(f)	any orders directed to any Government Department, Minister or T.D. seeking evidence or information concerning the Plaintiffs' affairs;
(g)	any orders made by the Tribunal pursuant to the Tribunals of Inquiry (Evidence) Act, 1921 (as amended) deeming it prudent to have certain sittings in private;
(h)	correspondence between the Tribunal and T.D.s (past or present) concerning the receipt by them of monies or benefits in kind as referred to in the Tribunals terms of reference together with all replies or correspondence relevant to same;
(i)	all correspondence or orders made against any political parties seeking information concerning donations covered by the period referred to in the terms of reference of the Tribunal;
(j)	all statements provided by any party for whom the Tribunal has sought statements concerning the Plaintiffs or any of them;
(k)	any documents containing details of any meetings between the Tribunal and any person concerning the Plaintiffs' affairs.

	The 1921 Act permits the Tribunal, where it is appropriate, to conduct its proceedings in private.  The first named Defendant as sole member of the Tribunal has exercised his discretion under that Act and has been conducting the investigative aspect of the Tribunal in private.  The documents sought to be discovered are documents which were issued in the context of the private investigatory phase of the Tribunal's proceedings.  Although the sole member of the Tribunal has been given many of the powers of a High Court Judge and although independently of the statutory powers, he must act judicially and constitutionally and therefore there will be the usual obligations of fair procedures involving compliance with the rules of natural and constitutional justice and the constitutional obligation to vindicate the good name of the first named Plaintiff.  But it must be borne in mind that these functions of the sole member have to be carried out rather differently than if he was sitting as an ordinary High Court Judge.  If he was simply sitting as a Judge of the High Court in the High Court, he would have played no part in the evidence gathering aspect of the case.  The gathering of evidence would have been done by the parties themselves.  That is the essential feature of the adversarial system of justice.  The sole member of the Tribunal, however, has to adopt an inquisitorial role and indeed more than that he has to gather up all the evidence himself with the assistance of his team of legal advisers.  It is obvious that confidentiality must play an important part in the preliminary evidence gathering process.  It is prima facie in the public interest that that confidentiality should be honoured.  It goes without saying, that information obtained in the course of such confidential investigations cannot be relied on for the purposes of the findings of the Tribunal without such evidence and information being available to any party who could be damaged by any finding arising out of it.  This would obviously involve the conferring of all the normal rights of calling evidence in rebuttal and cross-examination of the relevant witnesses, etc. But at any rate at this stage the Plaintiffs are not seeking this documentation for the purposes of being represented at the Tribunal but rather for the purposes of this action questioning the validity and conduct of the Tribunal.  In that context, this Court has to consider the following questions:-
1.	Are the documents relevant to the matters in issue in the action as distinct from the Tribunal?
2.	If so, does the asserted right of confidentiality in relation to these documents in the public interest which I have already identified have to give way to a countervailing public interest in the Plaintiffs being entitled to adduce all relevant evidence at the trial of the action?
	In connection with relevance, Counsel for the first named Defendant, Mr. Coughlan, relies on the amended Defence of the first named Defendant and the affidavit of Mr. John Davis, Solicitor for the first named Defendant sworn the 15th January, 1998.  He points out, as indeed does Mr. Davis in his affidavit, that paragraphs 10 and 13 of the amended Defence contain a large number of factual admissions and that in consequence the areas of factual dispute between the parties for the purposes of the action are limited.  Mr. Davis in paragraph 5 of his affidavit lists what he sees as the limited areas of factual dispute as follows:-
(i)	The allegation at paragraph 15(a) that the Tribunal has purported to redraw its terms of reference by purporting to interpret the word "substantial" as being equivalent to £500.  This allegation is denied by the Tribunal save for the admission at paragraph 10(a) of the amended Defence that the Tribunal by letters dated the 5th November, 1997 sought from all current and former members of the Oireachtas details of any payments received by them in excess of £500 while they were members of the Oireachtas. 
(ii)	The allegation at paragraph 15(c) of the amended Statement of Claim that the Tribunal agreed with the Government Chief Whip, acting on behalf of the Government and Fianna Fail Parliamentary Party, how correspondence should be dealt with.  This allegation is denied save for the admission at paragraph 10(c) of the amended Defence that the Tribunal provided clarification to the Government Chief Whip on behalf of current Fianna Fail members of the Oireachtas in relation to the said letter dated the 5th November, 1997 which clarification was provided by letter sent under a seal of confidence.  
(iii)	The allegation at paragraph 15(d) that the Tribunal indicated that it would refuse to accept submissions from any party to the Tribunal save such party as had been granted representation by the Tribunal.  This allegation is denied save for the admission at paragraph 10(d) of the amended defence that having duly sat in public to take applications for representation on the 31st October, 1997, and no application having been made on behalf of the first named Plaintiff, the Tribunal had refused to debate the terms of reference with the Solicitors for the first named Plaintiff and notified the said solicitors that submissions in relation to the terms of reference would be accepted from parties who had been granted representation.
Mr. Davis in his affidavit goes on to list the only documents which he says are now or have been in the power or possession or procurement of the Tribunal relevant to those questions and of those the only one which for all practical purposes the Plaintiffs are interested in having discovered is described as "a copy of the confidential letter sent by the Tribunal to the Government Chief Whip".
	In the amended Statement of Claim, the Plaintiffs assert that the first named Defendant has acted ultra vires his powers in a number of respects listed therein but one of these is that he had allegedly "agreed with the Government Chief Whip acting on behalf of the Government and Fianna Fail Parliamentary Party how correspondence should be dealt with".  The word "agreed" implies to my mind, or at least arguably implies, the alleged existence of some kind of negotiations between the Tribunal and members of the Government and/or members of the Fianna Fail Parliamentary Party.  If such negotiations were established at the hearing, then, depending on their nature, I cannot rule out at this stage the possibility that an alleged agreement of the kind pleaded in paragraph 15 of the amended Statement of Claim might be ultra vires the powers of the sole member of the Tribunal and it would be quite wrong for me to make any adjudication on this matter even if I were able to do so at the stage of an application for discovery.  It is clear that on the face of the pleadings there is still an issue of fact here between the parties.  The first named Defendant asserts that the letter to the Chief Whip was merely a requested clarification of the earlier letter sent to all members and former members of the Oireachtas.  A number of cases have been cited in Court in relation to the law relating to the withholding of documents as evidence on the grounds of the confidentiality.  But having considered each of the cases cited, I have come to the conclusion that the issues on this motion are essentially governed by the decision of the Supreme Court in Ambiorix Limited -v- Minister for the Environment (No.1) 1992 1I.R. 277.  The relevant principles are usefully summarised by Finlay C.J. at page 283 of the report.  The former Chief Justice makes it clear in that summary of principles that:-

	"Where a conflict arises during the exercise of the judicial power between the aspect of public interest involved in the production of evidence and the aspect of public interest involved in the confidentiality or exemption from production of documents pertaining to the exercise of the executive powers of the State, it is the judicial power which will decide which public interest shall prevail".

I would comment in passing that there is nothing in that passage nor in any of the relevant case law which supports the submission made on behalf of the Plaintiffs in this case that the only occasion on which the public interest in confidentiality would prevail would be where the security of the State was involved.  Indeed the former Chief Justice goes on to state that:-

	"The duty of the judicial power to make that decision does not mean that there is any priority or preference for the production of evidence over other public interests, such as the security of the State or the efficient discharge of the functions of the executive organ of government".
It would seem to me that the efficient discharge of the functions of a Tribunal established by the resolution of each House of the Oireachtas would normally be a ground for permitting confidentiality to over-ride the conflicting public interest in the right to adduce evidence.  But each case must depend on its own facts.
	Finlay C.J. then referred to certain practical conclusions which flowed from the principles which he had enunciated.  One of these was that there was no obligation on the judicial power to examine any particular document before deciding that it is exempt from production and that it can and will in many instances uphold a claim of privilege in respect of a document merely on the basis of a description of its nature and contents which the judicial power accepts. 
	Applying these principles, I have come to the conclusion first of all that the letter to the Chief Whip is prima facie a document relevant to the allegation in the Statement of Claim that there was some kind of agreement between the sole member of the Tribunal and the Chief Whip on behalf of the Government and the Fianna Fail Parliamentary Party.  Having arrived at that conclusion, I must now consider the balancing question pursuant to Ambiorix.  I have come to the conclusion on this that I cannot rely merely on the description of the document given on behalf of the first named Defendant in making a decision as to whether it should be discovered or not because it seems to me that there can be legitimate differences of opinion as to how a particular document should be described.  I think, therefore, that I will have to see the document in order properly to decide whether it should be discovered or not.
	In relation to all the other documents sought to be discovered by the first named Defendant I accept the arguments made by his Counsel that having regard to the admitted facts, they are not now relevant and therefore ought not to be the subject matter of an order for discovery.  Even if I was wrong about that, I would be satisfied that the first named Defendant is entitled to refuse to produce them at this investigative stage of the Tribunal for the reasons indicated earlier in this judgment.
	Turning now to the documents sought to be discovered from the fourth named Defendant, a measure of agreement has been reached in relation to these.  Counsel for that Defendant, Mr. Clarke, will be arguing at the hearing of the action that the Act and the resolution made under it setting up the inquiry including the terms of reference stand or fall irrespective of any discussions or advices that may have led up to the setting up of the Tribunal and that therefore the documents sought are not relevant and indeed in the case of some of them there would be legal privilege attaching to them.  So as not to prejudge the actual hearing of the action where this matter will be debated, it has been agreed that the application for discovery as against Ireland will stand adjourned until the hearing of the action and can be renewed if appropriate during the action.  
	There is one other matter to which I should refer.  Normally, an alleged public interest in the confidentiality of a particular document is not itself a ground for refusing discovery.  If an order for discovery is made, such a document has to be listed in the ordinary way but privilege can be pleaded in respect of it.  But given the urgency of this action in that, in the absence of an early hearing the proceedings of the Tribunal may be delayed, it was agreed that the confidentiality issue would be dealt with on the hearing of the application for discovery itself the rationale being that if such a plea would in the event be upheld the making of the order for discovery would be pointless.  Accordingly, what would normally be two stages in the discovery process have in this instance, in the interest of speedy and fair procedures been merged into one.  I will now discuss with Counsel the procedure for
examining the letter sent to the Chief Whip.  Having examined it, I will make a final ruling.