Desmond v Moriarty [2018] IESC 34 (27 July 2018)

THE SUPREME COURT

[Appeal No. 119/2012]

[High Court Record No. 2010/5159 P]

McKechnie J.
MacMenamin J.
O’Malley J.

Between /

DERMOT DESMOND

Plaintiff/Appellant

-and-

MR. JUSTICE MICHAEL MORIARTY (SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS CHARLES HAUGHEY AND MICHAEL LOWRY)

Defendant/Respondent

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 27th day of July, 2018

Introduction
1. The immediate legal context underlying this appeal is rather procedural and technical. The plaintiff instituted the within proceedings with a view to setting aside a judgment of the High Court and the subsequent judgment of this Court on appeal, delivered on the 8th August, 2003, and the 20th January, 2004, respectively, on the grounds that they were obtained by fraud. Those judgments are reported at [2004] 1 IR 334 and are collectively referred to in this judgment as “the 2003 proceedings”. In response the defendant brought an application by way of notice of motion seeking, on a number of different bases, to strike out or dismiss the plaintiff’s claims. This application was successful before Dunne J. in the High Court, with the result that the plaintiff’s proceedings seeking to set aside the earlier judgments were struck out ([2012] IEHC 202). This judgment concerns the plaintiff’s appeal from that decision.

2. Of course, it is not possible to address the legal issues presenting on this appeal in a vacuum, and so regard must be had to the complex factual background and procedural history of the 2003 proceedings and, at some level, to the work of the respondent generally. The terms of reference of the Tribunal of Inquiry into Payments to Politicians and Related Matters (“the Tribunal”) are by this stage well known, as is the vital importance of its work for our society as a whole. So too, from the appellant’s perspective, do the instant proceedings raise matters of fundamental concern, as he contends that he was not afforded fair procedures by the Tribunal, with the consequence that his ability to defend his good name was compromised.

3. In essence, two core legal issues arise. The first relates to the proper meaning of the term “fraud” as understood in the set aside jurisprudence, and specifically whether a plaintiff must allege “deliberate and purposeful dishonesty, knowing and international deceit” in order to successfully set aside a judgment on grounds of fraud. The second issue arises out of the exceptional jurisdiction of the courts to set aside a final order or judgment where necessary to protect constitutional rights, and it asks whether it is necessary, in order for a judgment to be set aside for breach of fair procedures, that the lack of fair procedures or breach of constitutional rights arises out of the conduct of the court itself, rather than by any other party. The parties have also raised a number of ancillary points, which are addressed below as they arise. Before turning to such issues, however, I will first set out the factual and procedural backdrop against which the plaintiff’s application to set aside and the defendant’s subsequent application to strike out must be considered.

Background
4. Fuller details of the background to the case can be found in the judgments in the 2003 proceedings ([2004] 1 IR 334) and the judgment of the High Court in this case. The plaintiff/appellant is a well-known and successful businessman. The defendant/respondent is the sole member of the Tribunal. The Tribunal was established pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 and 1979 (No. 2) Order 1997. By its Terms of Reference, the Tribunal was to “inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit” in relation to certain definite matters of urgent public importance. The relevant matters for present purposes were those reflected at paragraphs (e), (f) and (g) of the Terms of Reference:

“(e) Whether any substantial payments were made directly or indirectly to Mr Michael Lowry […] during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office.

(f) The source of any money held in the Bank of Ireland, Thurles branch, Thurles, Co. Tipperary, the Allied Irish Bank in the Channel Islands, the Allied Irish Banks, Dame Street, Dublin, the Bank of Ireland (I.O.M.) Limited in the Isle of Man, the Irish Permanent Building Society, Patrick Street branch, Cork or Rea Brothers (Isle of Man) Limited, in accounts for the benefit or in the name of Mr Lowry or any other person who holds or has held Ministerial office or in any other bank accounts discovered by the Tribunal to be for the benefit or in the name of Mr Lowry or for the benefit or in the name of a connected person within the meaning of the Ethics in Public Office Act, 1995, or for the benefit or in the name of any company owned or controlled by Mr Lowry.

(g) Whether Mr Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any other person in return for such payments being made or procured or directed any other person to do such act or make such decision.”

Mr Lowry is, of course, a T.D. for the Tipperary constituency, and served as Minister for Transport, Energy and Communications (“the Minister”) from the 15th December, 1994 to the 30th November, 1996.

5. As part of its work, the Tribunal inquired into the circumstances surrounding,inter alia, the competition for the second GSM mobile phone licence in this State. The competition was announced on the 2nd March, 1995. Six applications were assessed by an evaluation team established by the Department of Transport, Energy and Communications (“the Department”). The licence was ultimately awarded to a consortium (herein referred to as “the ESAT Digifone consortium”) consisting of Telenor (the Norwegian State telephone company), ESAT Telecom Limited (a company representing the interests of Mr Denis O’Brien) and IIU Nominees Limited (“IIU”), a company beneficially owned by the appellant.

6. During this consortium’s oral presentation to the competition evaluators, it was asserted that Telenor and ESAT Telecom each had a 40% interest, with the remaining 20% interest divided equally among four financial institutions. The appellant subsequently became involved in negotiations in August and September, 1995 with a view to becoming a member of the consortium. Neither the evaluation team nor the Department were notified of these negotiations. He became a member on the 29th September of that year, on terms that Telenor and ESAT Telecom would have their interests reduced to 37.5% each and that the appellant would become the owner of the remaining 25% interest in the consortium. The evaluation team recommended that the licence should be awarded to the ESAT Digifone consortium; the result of the competition was announced by Mr Lowry, the then Minister, on the 25th October, 1995. When this result was announced, the evaluation team and the Department believed that the beneficial ownership of the ESAT Digifone consortium remained vested in Telenor, ESAT Telecom (40% each) and the financial institutions (20%).

7. At the outset of the module of its inquiry relevant to these proceedings, counsel on behalf of the Tribunal indicated that it would be inquiring into the true facts concerning ESAT Telecommunications Holdings Limited’s financial position as at and prior to the 16th May, 1996, and the extent to which the Department was aware of those facts; if the Department was not aware of the true facts, the Tribunal would inquire into,inter alia, whether this was due to any intervention or influence on the part of Mr Lowry. Most pertinently, the Tribunal proposed to inquire into the true facts concerning the identity of the consortium; amongst the relevant questions in this regard were the following:

“A. Who were the true applicants behind the ESAT Digifone application?

B. Were the true facts concerning the identity of the applicants known to the evaluators and, if those facts were not known to the evaluators, was this due to any intervention on the part of or any influence by Michael Lowry?

C. (1) What were the true facts concerning the ownership of either the ESAT Digifone consortium or the licensee proposed by that consortium and were those facts truly stated in the application evaluated by the evaluators as part of the GSM competition process?

(2) What was the state of knowledge of the evaluators concerning those facts as at the date of receipt of the application, at any time during the course of the evaluation process, at the date of the announcement of the result, at any time during their licence negotiations and at the date of the issue of the licence?

D. If the true facts were not known to the evaluators, the tribunal will once again wish to inquire whether this was due to any act or intervention on the part of or due to any influence exerted by Mr. Michael Lowry. If it appears that, at any time, the true facts, whether in relation to the financial position of ESAT Telecom Holdings Ltd. or Communicorp or the facts surrounding the question of ownership or identity of the applicant, set out above, were in fact known to any of the evaluators, the tribunal will wish to inquire whether due consideration was given to these facts in the carrying out of the evaluation and/or in the negotiation of the licence conditions and/or in the issue of the licence and whether, once again, the conduct of any of the evaluators was influenced by or was the result of any intervention on the part of Mr. Michael Lowry.

E. There seems to be no disputing the fact that the applicant, through his vehicle IIU, was a member of the consortium to which the licence was issued. As part of the inquiries mentioned above, the tribunal will wish to inquire whether the applicant or IIU, although a part of the consortium to which the competition result was awarded, that is the licence issued, in fact avoided the evaluation process and whether this was a result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry.”

8. The plaintiff/appellant was granted legal representation at the Tribunal. His advisors received a daily transcript of proceedings and had the right to attend the Tribunal on his behalf at any time and to cross-examine witnesses and to make oral submissions.

The 2003 Proceedings

9. The genesis of the 2003 proceedings lay in the fact that, during the inquiries above referred to, counsel for the Tribunal questioned certain witnesses as to their knowledge and understanding of the Final Report on Chestvale Properties Ltd. and Hoddle Investments Ltd. (“the Glackin Report”). The report, published on the 1st July, 1993, by Mr John A. Glackin, solicitor, contained an investigation into certain matters relating to the ownership of property in Ballsbridge, Dublin. The report contained findings which were critical of the plaintiff and his apparent association with two companies connected with the purchase of the property which was the subject of the investigation.

10. The first witness questioned about his knowledge of the Glackin Report was Mr Martin Brennan, head of the evaluation team. After this examination the plaintiff’s solicitor wrote to the defendant’s solicitor, complaining that an irrelevant and unfair line of examination had been permitted. Details of correspondence between the plaintiff’s legal team and the Tribunal throughout this period can be found in the reported judgments of the 2003 proceedings. Next to be examined on this matter was Mr John Loughrey, Secretary of the Department; the plaintiff was given less than 24 hours notice of the fact that the Glackin Report would be referred to during this examination. The report was again referred to during the examination of Mr Fintan Towey, who had been a senior member of the evaluation team. On the 8th May, 2003, in response to an objection by counsel for the plaintiff that the line of questioning being pursued was irrelevant and speculative, the respondent ruled that such line of inquiry could proceed.

11. On the 12th May, 2003, the plaintiff made an application for leave to seek judicial review of certain rulings made and procedures adopted by the Tribunal. His overriding complaint was that the defendant had permitted witnesses to be questioned repeatedly and in detail on the contents of the Glackin Report. He claimed, first, that the report and its contents were not relevant to the work of the Tribunal; alternatively, if the report was relevant, he claimed a breach of fair procedures and natural justice by the Tribunal in that he had not been given any or any adequate notice of the likelihood that particular witnesses would be examined with reference to the Glackin Report. As a consequence, he claimed that he had been compromised in his capacity to vindicate his reputation and his good name. He also complained that the Tribunal had permitted its counsel to refer to him using pejorative language.

12. Both the High Court and, on appeal, this Court refused to order the relief sought by the plaintiff. The precise reasoning of both courts is dealt with in detail later in this judgment (see paras. 102-108,infra); the reason for deferring their consideration is for convenience and to avoid duplication, for it will be necessary to consider the judgments at some depth when assessing the plaintiff’s claim on this appeal that certain statements/omissions fraudulently made by an agent for the respondent had a fundamental effect on those judgments.

13. For present purposes, it will suffice to note that Quirke J. in the High Court held that the question of whether the plaintiff or IIU avoided the work of the evaluation process was relevant to the work of the Tribunal, and thus that an evaluation of the plaintiff was also relevant to the work of the Tribunal. The plaintiff’s former business transactions and dealings were relevant to the question of whether he avoided the evaluation process, and thus it was not unreasonable that the Tribunal was interested in the contents of the Glackin Report. As to the “fair procedures” argument based on the alleged lack of notice regarding the use of the report in examining witnesses, the High Court was satisfied on the facts that this argument was not made out. In the Supreme Court, Denham J., as she then was, held that the Tribunal’s terms of reference were wide-ranging and that it was primarily for the Tribunal to interpret those terms of reference. She was satisfied that the plaintiff had not made out any case that the Tribunal had actedultra vires. Moreover, the learned judge held that there was no necessity for the Tribunal to give notice to the plaintiff of any intended reference to the Glackin Report, and accordingly that the Tribunal had not adopted procedures which prevented the plaintiff from vindicating his rights. The Glackin Report had already been in the public domain for years and thus the Tribunal’s references to it did not breach Mr Desmond’s constitutional right to privacy. Thus the Supreme Court dismissed the appeal and affirmed the order of the High Court refusing the relief sought by the plaintiff.

Plaintiff’s Application to Set Aside Prior Judgments

14. That, however, is far from the end of the story. By plenary summons dated the 28th May, 2010, the plaintiff initiated proceedings seeking to have the judgments of the High Court and the Supreme Court in the 2003 proceedings set aside. He also sought related and ancillary relief. In short, the basis upon which this relief was claimed was the plaintiff’s contention that the defendant caused or permitted misleading, untrue and inaccurate evidence to be given to those courts during the 2003 proceedings, with the result that the plaintiff’s judicial review application was refused. The plaintiff therefore alleged that the judgments and orders in the 2003 proceedings “were obtained by fraud on the part of the defendant and his servants or agents”. He further complained about a failure by the defendant to make disclosure of material described in the Statement of Claim, saying that this amounted to a fundamental breach of fair procedures going to the heart of the evidence led on his behalf in the 2003 proceedings. For these reasons, the plaintiff sought to have the judgments in the 2003 proceedings declared a nullity and set aside.

15. Essentially, the plaintiff argues that an affidavit sworn by Mr John Davis on behalf of the defendant on the 22nd May, 2003, as part of the judicial review proceedings, was misleading, untrue and inaccurate by reason of wilful or reckless misstatements contained therein and wilful or reckless omissions therefrom. Mr Davis was the solicitor to the Tribunal at the relevant time. Some further background is required at this point in order to properly contextualise the plaintiff’s application.

16. In October, 1995, the ESAT consortium was awarded the exclusive right to negotiate with the Department for the award of the licence. On the 24th April, 1996, the Department wrote to the Office of the Attorney General seeking legal advice in relation to changes in the composition of the ESAT consortium. This advice (hereinafter “the Nesbitt Opinion”) was furnished to the Attorney General’s Office by Richard Nesbitt SC on the 9th May, 1996; his advice was that the change in composition of the consortium should not affect the decision to grant the licence unless the change in composition would in some way compromise the service to be provided by the consortium. The Nesbitt Opinion was sanctioned by the Attorney General and was communicated to the Department on the 13th May, 1996. The licence was awarded to the ESAT three days later.

17. On the 21st June, 2002, the solicitor to the Tribunal wrote to the Office of the Chief State Solicitor requesting sight of the instructions furnished to Richard Nesbitt SC. The Tribunal legal staff liaised with the Office of the Attorney General throughout the remainder of 2002, seeking further information regarding the Nesbitt Opinion. This included a meeting on the 18th October, 2002, between the Tribunal legal team, Richard Nesbitt SC, two officials from the Attorney General’s Office, and a representative of the Chief State Solicitor’s Office. The Tribunal legal team was told that the Nesbitt Opinion dealt with queries raised by the Department in the letter of the 24th April, 1996.

18. The Tribunal commenced its second module in December, 2002; in the course of the opening statement, counsel for the Tribunal stated that the Nesbitt Opinion only addressed changes in the consortiumafter the licence had been granted, that the Department had not pursued the issue of changes to the consortium prior to the award of the licence, and that the Department continued to be concerned about the ownership issue in May, 1996. On the 20th December, 2002, the Attorney General communicated to the Tribunal’s legal team that the Nesbitt Opinion dealt with the queries raised by the Department in its letter of the 24th April, 1996. In early 2003, counsel for the Tribunal put it to witnesses that the Nesbitt Opinion did not deal with changes in the composition of the consortium prior to the award of the licence, and that the Attorney General had confirmed that this was the case. The plaintiff requested sight of the Nesbitt Opinion, but this was refused on grounds of privilege.

19. As above noted, the plaintiff’s judicial review proceedings (the 2003 proceedings) were commenced on the 12th May, 2003; the relevant affidavit of Mr. Davis was sworn on the 22nd May, 2003. These proceedings were unsuccessful, as described above. The impugned averments in that affidavit are set out below (paras. 23-24,infra).

20. In April, 2009, the Department waived privilege and the Nesbitt Opinion was furnished to the plaintiff. On the 23rd March, 2010, the Tribunal accepted that it made “two not insignificant errors”, namely, that (i) it had been mistaken in asserting that the Attorney General had in 2002 expressed the view that the Nesbitt Opinion did not deal with pre-award changes in the composition of the ESAT consortium, and (ii) it had erred in not making available to the parties its note of the meeting of the 18th October, 2002 (this was made available to the plaintiff for the first time in March, 2010).

21. Accordingly, it is apparent that the opening statement of the second module took place in circumstances where the Tribunal was in error as regards the Attorney General’s view, expressed during the Tribunal’s inquiries in 2002, as to the effect of the Nesbitt Opinion. The Tribunal set out on the module on the basis that that opinion dealt only with the question of changes in the composition of the consortium after the licence had been granted. This was the context in which the plaintiff’s unsuccessful judicial review proceedings were taken. The plaintiff now seeks to have those judgments set aside, saying that the Tribunal was operating under a misapprehension regarding the effect of the legal advices received by the Department concerning the change in composition of the consortium. The Tribunal was focused at that time on whether the plaintiff’s membership of the consortium would have had any impact on the awarding of the licence. Mr Desmond now seeks to rely on the non-disclosure of information in the possession of the Tribunal concerning the Nesbitt Opinion. As summarised by the High Court, the essence of the plaintiff’s case is that “the Tribunal had information in its possession that the Department had, in fact, been advised that it was in order for the identity and configuration of the consortium to be changed and that information was not before the High Court and the Supreme Court in the judicial review proceedings.”

The Statements at Issue
22. On the 12th May, 2003, as part of the 2003 judicial review proceedings, the plaintiff swore an affidavit relating to the evidence of Mr. John Loughrey, the then Secretary of the Department of Communications, Marine and Natural Resources, before the Tribunal. The plaintiff averred as follows:

“[A]s the Secretary of the Department, Mr John Loughrey confirmed in giving evidence to the Tribunal, [the Glackin Report] had no relevance. He was aware of the report, took legal advice at the time of the award of the licence and it was confirmed that under the rules of the competition, the Department could not have disqualified me from being a member of the successful consortium.”

23. The critical basis for the plaintiff’s application to set aside the judgments in the 2003 proceedings is that the affidavit sworn by Mr Davis on the 22nd May, 2003, made on behalf of the Tribunal in reply to the plaintiff’s affidavit of the 12th May, contained misleading, untrue and inaccurate evidence, and that both the High Court and this Court relied on that evidence. The statements at issue were contained at paragraphs 20, 29, 30, 33 and 35 of the affidavit of Mr Davis. Those statements were the following:

“20. Moreover, the applicant’s purported representation of Mr. Loughreys’s testimony in relation to the relevance of the Glackin Report is misleading in a number of significant respects. By his selective juxtapositioning of testimony of Mr. Loughrey, the applicant has failed to present this Honourable Court with a complete and accurate statement of his evidence.

…

29. Moreover, the applicant’s purported representation of Mr. Loughrey’s testimony is misleading in a number of significant respects. By his selective juxtapositioning of the testimony of Mr. Loughrey, the applicant intimates that Mr. Loughrey took legal advice in relation to the impact of the Glackin Report and, in particular, that he took legal advice on the question of whether, under the rules of the competition, the findings of the Glackin Report could have disqualified the applicant from being a member of the successful consortium. However, Mr. Loughrey did not suggest at any stage during his evidence to the Tribunal that he sought legal advice in relation to any of these matters. Specifically, Mr. Loughrey did not suggest that he sought legal advice in relation to the impact of the Glackin Report. Nor did he suggest that he sought legal advice on whether the contents of the Glackin Report would disqualify the applicant from being a member of the successful consortium. Nor did he suggest that he sought legal advice on the question of whether, under the rules of the competition, the Department could have disqualified the applicant from being a member of a successful consortium, whether on the basis of the Glackin Report or otherwise. There is no basis in the transcript to support the applicant’s implicit claims in this regard.

30. The relevant portions of the evidence of Mr. Loughrey in the present context are contained on pages 13 to 14 and pages 51 to 52 of the transcript of the proceedings of the Tribunal on Day 189, and I beg to refer to two copies of the said extracts upon which, pinned together and marked with the letters ‘JD1’ and ‘JD2’ respectfully [sic], I have signed my name prior to the swearing hereof. The said evidence indicates that Mr. Loughrey was aware that the evidence of the ownership of the vehicle to take the licence was a major issue and that advice had been sought on this issue; the evidence also indicates that Mr. Loughrey fully accepted that such advice had not been received. (See p. 51, line 14). Other evidence heard by the Tribunal indicates that legal advice was sought and obtained on the question of the extent to which ownership changes would be permitted in the case of a consortium to which the licence had been grantedafterthe licence had been granted (i.e. after the consortium had gone into operation) but that no such advice had been obtained in relation to the period between the application for the licence and the granting thereof.

…

33. … For the reasons outlined above, the Glackin Report could only have been immaterial to the licensing process if it had been completely discredited in every respect as regards the Applicantandthis fact had been established before the licensing process was concludedandthe licence evaluators were aware of this fact.

35. … Notwithstanding his failure to establish that the Glackin Report was patently irrelevant to an assessment of the ESAT Digifone consortium and, by extension, the present work of the Tribunal, the applicant reiterates his claim that the Report is irrelevant and, moreover, claims that ‘despite being aware of its irrelevance, the Respondent continues to permit its introduction, as part of a much wider inquiry by the Tribunal into relevant matters.’ It is clear from my previous averments herein that the Glackin Report is considered to be relevant to the work of the Tribunal …” (emphasis in original)

24. At paragraph 59 of his affidavit, Mr Davis averred that the Tribunal was not investigating the plaintiff but was instead examining the knowledge and actions of the evaluation team. Also relevant is the following extract from the opening statement made by counsel on behalf of the Tribunal at the outset of the relevant module:

“Now, an opinion was furnished by counsel through the Office of the Attorney General, which addressed the question of change of ownership after the issue of the licence. The specific issue of changes in the ownership of the consortium between the date of the application and the date of the issue of the licence does not appear to have been further pursued by the Department. It appears that the Department continued to be concerned about the ownership issue in May of 1996.”

25. Thus, as summed up at paragraph 16 of the plaintiff’s Statement of Claim, dated the 15th June, 2010, he alleges that the evidence of the defendant to the High Court (and, on appeal, to this Court) in the 2003 proceedings was that:

(a) The Department had not received legal advice in relation to a change in the ownership of the ESAT Digifone consortium.

(b) The legal advice received by the Department addressed the question of change of ownership after the issue of the licence and did not address the period between the application for the licence and the granting thereof.

(c) It was therefore necessary for the Tribunal to inquire whether the plaintiff had avoided the evaluation process carried out prior to the grant of the second GSM mobile telephone licence.

(d) The contents of the Glackin Report were therefore relevant to the Tribunal's inquiry.

26. As I see it, the kernel of the plaintiff’s claim in these proceedings is that Mr Davis, in his affidavit, deliberately or recklessly (i) failed to acknowledge that an evaluation of the plaintiff and IIU would be irrelevant if the Department had received legal sanction for the change in ownership of the ESAT Digifone consortium, when the defendant knew or ought to have known that this was the case; (ii) asserted that the defendant was obliged to inquire as to whether the plaintiff and IIU should have been evaluated prior to the grant of the licence, when the defendant knew or ought to have known that this was not the case; and (iii) failed to acknowledge the possibility that the Glackin Report would be irrelevant to the Tribunal’s inquiry if the Department had received legal sanction for the change in ownership of the ESAT Digifone consortium, when the defendant knew or ought to have known that this was the case. It is said by the plaintiff that both the High Court and this Court acted in reliance on that evidence when reaching their respective judgments in the judicial review proceedings.

27. The plaintiff seeks a number of reliefs in his Statement of Claim, including the following:

“(i) A Declaration that the Affidavit sworn by John Davis on behalf of the Defendant on the 22nd of May 2003 in the judicial review proceedings … Record Number 2003 No. 315 J.R. was misleading, untrue and inaccurate by reason of the wilful or reckless misstatements therein and the wilful or reckless omissions therefrom.

(ii) A Declaration that this Honourable Court was misled into giving its judgment in order of the 8th of August 2003 in the proceedings described in paragraph (i) herein by fraud on the part of the Defendant, his servants or agents.

(iii) A Declaration that the judgment and order of this Honourable Court given on the 8th of August 2003 in the proceedings described in paragraph (i) herein are a nullity by reason of fraud on the part of the Defendant, his servants or agents.

(iv) A Declaration that the judgment and order of this Honourable Court given on the 8th of August 2003 and the subsequent judgment and order of the Supreme Court of 20th day of January 2004 was obtained in circumstances where the Defendant was guilty of a fundamental breach of fair procedures.

…

(vii) A Declaration that the Supreme Court was misled into giving its judgment and order of the 20th day of January 2004 in the Supreme Court appeal … by fraud on the part of the Defendant, his servants or agents.

(viii) A Declaration that the judgment and order of the Supreme Court of the 20th day of January 2004, in the proceedings described in paragraph (vi) (sic) herein are a nullity by reason of fraud on the part of the Defendant, his servants or agents.

(ix) An order impeaching the judgment of the Supreme Court given on the 20th day of January 2004 in the proceedings described in para. (vi) (sic) herein.”

28. At this point it may be convenient to note one of the particulars raised by the defendant and the plaintiff’s reply thereto, for they have a role to play on this appeal, it being alleged by the plaintiff that Dunne J. in the High Court attached altogether too much significance to said reply. The notice for particulars was dated the 30th July, 2010. The defendant raised the following particular at paragraph 1(a):

“With reference to paras. 8 to 15 of the statement of claim:

(a) please confirm whether each and every allegedly fraudulent and/or misleading and/or untrue and/or inaccurate statement on behalf of the defendant by way of evidence in the proceedings entitled [the 2003 proceedings] is pleaded in paragraphs 8–15 of the Statement of Claim.”

The plaintiff’s response was furnished by letter dated the 7th September, 2010. It stated as follows:

“1. (a) The Plaintiff confirms that each and every statement made on behalf of the Defendant in the Judicial Review proceedings which the Plaintiff alleges was misleading and/or untrue and/or incorrect is pleaded in paragraphs 8 to 15 of the Statement of Claim. As is apparent from the Statement of Claim, the Plaintiff has not pleaded that the aforesaid statements were made fraudulently; he has pleaded that the effect of those misleading and/or untrue and/or incorrect statements and of the failure by the Defendant to disclose or acknowledge the matters pleaded in paragraphs 32(c), (d), (e), (f), (g), (h), (i), (j), (1) and (n) of the Statement of Claim had herein, was that the High Court and the Supreme Court were presented with misleading, untrue and inaccurate evidence by the Defendant. In this regard, the Plaintiff will argue that the aforesaid statements must be considered and construed in the light of the whole of the Tribunal's Affidavit sworn by Mr. Davis on the 22nd May, 2003 and, in particular, in the light of the omissions therefrom. The misleading, untrue and inaccurate evidence given on behalf of the Defendant meant that the Plaintiff and his legal advisers were unable to and/or were hindered in their ability to properly and fully prosecute the Judicial Review proceedings. This in turn resulted in the High and Supreme Courts being deceived by the Defendant and his servants and agents, and it is on this basis that the Plaintiff pleads that the judgments and orders of the High and Supreme Courts were obtained by fraud.”

Application to Strike Out the Plaintiff’s Claim

29. By notice of motion dated the 11th March, 2011, the defendant brought an application seeking to strike out the plaintiff’s attempts to set aside the judgments in the 2003 proceedings. The defendant sought the following relief:

“(a) An order pursuant to Order 19, Rule 28 of the Rules of the Superior Courts striking out or dismissing the Plaintiff’s claims on the grounds that the Statement of Claim delivered herein discloses no reasonable cause of action and/or the action is shown by the pleadings to be frivolous and/or vexatious;

(b) Further or in the alternative, an Order pursuant to the inherent jurisdiction of the Court dismissing or, alternatively, striking out the Plaintiff’s claims against the Defendant on the grounds that the proceedings have no reasonable prospect of success, are bound to fail and are an abuse of the process of the Court;

(c) Further or in the alternative, an order pursuant to Order 19, Rule 27 of the Rules of the Superior Courts striking out the Statement of Claim in its entirety on the grounds that it contains matters which are unnecessary and/or scandalous and which may tend to prejudice, embarrass or delay the fair trial of the action.”

30. The relevant rules of Order 19 of the Rules of the Superior Courts (“RSC”) provide as follows:

“27. The Court may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous, or which may tend to prejudice, embarrass, or delay the fair trial of the action; and may in any such case, if it shall think fit, order the costs of the application to be paid as between solicitor and client.

28. The Court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer and in any such case or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.”

Judgment of the High Court on the Application to Strike Out

31. The judgment of the High Court on the defendant’s application to strike out the plaintiff’s claim was delivered by Dunne J. on the 17th February, 2012. It bears the neutral citation [2012] IEHC 202. The learned judge first set out at some length the background to the case and the reasoning and holding of the High Court and this Court in the 2003 proceedings. In respect of the relief sought by the defendant pursuant to Order 19, rule 27 RSC, she accepted the plaintiff’s argument, made by reference to the decision of Denham J. inAer Rianta cpt v. Ryanair (No. 4)[2004] 1 IR 506 (“Aer Rianta v. Ryanair”), that that rule is directed towards striking out any matter in any endorsement or pleading, rather than striking out an endorsement or a pleading in its entirety. Where it is an entire claim that is sought to be struck out, Order 19, rule 28 is more appropriate. Accordingly, she proceeded to consider the application on the basis of Order 19, rule 28 and the inherent jurisdiction of the Court, rather than by reference to Order 19, rule 27. Though no issue arises on this appeal as to the correctness of this approach, I would observe in passing that I believe that the learned judge was correct to approach the application in this way.

32. Dunne J. dealt first with the plaintiff’s submission that there is jurisdiction to review an earlier decision on the grounds of breach of fair procedures and constitutional rights. The plaintiff contended that such grounds provided a basis to set aside a final judgment. In this respect he relied on the decisions of this Court inRe Greendale Developments Limited (No. 3)[2000] 2 I.R. 514 (“Re Greendale Developments (No. 3)”) andL.P. v. M.P. [2002] 1 IR 219 (“L.P. v. M.P.”). These and other cases, includingR v. Bow Street Magistrates,ex parte Pinochet (No. 2)[2000] 1 AC 119 (“Pinochet (No. 2)”)andBula Limited v. Tara Mines Limited (No. 6)[2000] 4 I.R. 412 (“Bula v. Tara Mines (No. 6)”), were considered at some length by Dunne J. As the conclusion which she reached is in part the subject of this appeal, I will defer any in-depth analysis of the applicable law until later in this judgment. It will suffice to say that the learned judge concluded that in order to set aside a judgment on this exceptional ground, what is in contemplation is a want of fair procedures or breach of constitutional rightsby the court itself;what one must consider is the conduct of the proceedings by the court which heard them. In this case, the plaintiff had made no suggestion of any lack of fair procedures or breach of constitutional rights by virtue of the conduct of the proceedings by the High Court or the Supreme Court. Accordingly, there was no basis on which he could avail of this exceptional jurisdiction to set aside a prior judgment. The learned judge did not consider it necessary to address the issue of whether the High Court could ever make an order setting aside a final judgment of the Supreme Court on these grounds.

33. In respect of the courts’ inherent jurisdiction to strike out a claim which has no reasonable prospect of success, is bound to fail and/or is an abuse of process, the learned judge referred to the well-known judgments inBarry v. Buckley[1981] I.R. 306 (“Barry v. Buckley”),Sun Fat Chan v. Osseous Limited[1992] 1 I.R. 425 (“Sun Fat Chan”) andJodifern v. Fitzgerald[2000] 3 IR 321 (“Jodifern”). As to the application pursuant to Order 19, rule 28, Dunne J. first acknowledged that the jurisdiction to strike out proceedings is one which a court should be slow to exercise (Aer Rianta v. Ryanair, per Denham J. at p. 509). She also set out the principles applicable where an application is made to set aside a prior judgment on the basis of fraud, as derived from cases such as theAmpthill Peerage Case[1977] A.C. 547 (“Ampthill Peerage”),Tassan Din v. Banco Ambrosiano S.P.A.[1991] 1 I.R. 569 (“Tassan Din”) and, in particular,Kenny v. Trinity College Dublin[2008] IESC 18 (“Kenny”).

34. Again, as it is contended that Dunne J. erred in both her statement of the applicable principles and their application to this case, I propose to defer thorough consideration of this case law until later in this judgment. In essence, the learned judge considered that theKennydecision laid down three pre-requisites to succeeding on an application to set aside a prior judgment on the basis of fraud, one of which was that the plaintiff must allege fraud in the sense of “deliberate and purposeful dishonesty, knowing and intentional deceit of the court”; unless such quality or degree of fraud was alleged, the defendant’s application to strike out would have to be granted. By reference to the plaintiff’s Statement of Claim, certain affidavit evidence and the above-mentioned replies to particulars, Dunne J. considered that the high water mark of the plaintiff’s claim in this case was that the High Court and Supreme Court had been presented with misleading, untrue and inaccurate evidence by the defendant in the 2003 proceedings. The learned judge acknowledged that the evidence was misleading, but concluded as follows on this issue:

“However, what is absent from the facts of this case as pleaded is any material that would suggest that, insofar as the averments of Mr. Davis were wrong as to the advices furnished by Mr. Nesbitt, there was deliberate and purposeful dishonesty on his part or on the part of the Tribunal in putting that evidence before the High and Supreme Court in the judicial review proceedings. An assertion that the High Court and Supreme Court were presented with ‘misleading, untrue and inaccurate evidence’ simply does not meet the necessarily stringent threshold set out in

Kenny v Trinity College Dublin

for the setting aside of a final and conclusive judgment. As was stated in that case, ‘the nature of the fraud, deceit or dishonesty must be clearly and unambiguously alleged.’ It seems to me to be abundantly clear that whatever led to the mistaken understanding of the Tribunal in relation to the advices furnished to the Department in respect of the ownership and change of ownership of the ESAT consortium, the one thing that can be said is, that, having regard to the matters pleaded in the statement of claim and the replies to particulars, there was no deliberate and purposeful dishonesty or knowing and intentional deceit of the court by the defendant, his servants or agents.

There is simply nothing in the pleadings in my view, which alleges fraud in the true sense. To that extent it seems to me that the plaintiff has failed to satisfy the first requirement in relation to the setting aside of a judgment on the grounds of fraud.”

35. Though the above finding was sufficient to dispose of the matter, Dunne J. went on to consider a further point for the sake of completeness. She stated, again based onKenny,that a further pre-requisite to the setting aside of a final judgment on the ground of fraud is that that which is alleged to have been fraud must have been such as to effect the impugned judgment in a fundamental way. By reference to the reasoning of the High Court and the Supreme Court in the 2003 proceedings, Dunne J. concluded that “[t]here is simply nothing in the judgments to show how it could be said that the matters complained of by the plaintiff in the affidavit of Mr. Davis were such as to affect the impugned decision in a fundamental way or to have been something that went to the root of the case.” Thus the plaintiff was adjudged to have fallen short in respect of two of the three requirements established byKenny. The plaintiff’s claim was therefore one which must fail, and accordingly the learned judge granted the relief sought by the defendant and struck out the plaintiff’s claim.

Appeal
36. The plaintiff brought an appeal against the said judgment of the High Court. Initially the appeal was the subject of a direction given by the Chief Justice pursuant to Article 64.3.1° of the Constitution specifying that it was to be heard in the Court of Appeal. However, the plaintiff sought a determination under Article 64.3.3° of the Constitution, arguing that because this case ultimately involves an application to set aside a judgment of this Court, it would be more appropriate for this Court to hear the appeal. He was successful with that application, with the result that the Court cancelled the direction insofar as this appeal is concerned (Desmond v. Moriarty[2015] IESC DET. 28).

37. The appellant raises some fourteen grounds of appeal against the judgment of Dunne J. These grounds were helpfully summarised in the following way in his written submissions:

i. First, that the High Court erred, either in law or in fact and in law, in its conclusion that the appellant’s application to set aside the judgments in the 2003 proceedings on the ground of fraud disclosed no reasonable cause of action and was bound to fail.

ii. Secondly, that the High Court erred in law in its conclusions as to when a court may set aside a final judgment on the grounds of breach of fair procedures or constitutional rights and further erred in law and in fact in its conclusion that this jurisdiction did not arise in this case.

iii. Thirdly, that the High Court erred in law and in fact in holding that the appellant’s claim did not disclose a reasonable cause of action and/or must fail.

In the view of the appellant, the overarching issue arising on this appeal is whether the High Court correctly applied the legal principles governing the respondent’s application to strike out the proceedings. Needless to say, he argues that it did not.

Submissions
38. The Court was greatly aided by written and oral submissions on behalf of both parties. The substance of parties’ arguments on this appeal is addressed in the “Decision” section of this judgment (see para. 58et seq., infra). What follows here is but a summary of such submissions.

Submissions of the Appellant

39. The appellant first submits that the jurisdiction to strike out proceedings must be exercised sparingly, with great caution, and only in the clearest of cases. His submissions in this respect are largely uncontroversial, it must be said, in that the respondent does not truly contest the issues of principle asserted. Mr Desmond submits that it is not clear whether the High Court struck out his claim pursuant to its inherent jurisdiction or Order 19, rule 28, though he posits that its consideration of affidavit evidence suggests it could only have been acting pursuant to its inherent jurisdiction. Reference is made to a number of cases, includingAer Rianta v. Ryanair, Barry v. Buckley, Sun Fat Chan, Jodifern, Lopes v. Minister for Justice[2014] 2 IR 301 (“Lopes”),Keohane v. Hynes[2014] IESC 66 (“Keohane”) andMoylist Construction Limited v. Doheny[2016] 2 IR 283 (“Moylist Construction”).

40. In reliance on these cases the appellant submits that a court should be slow to exercise its jurisdiction under Order 19, rule 28 and that it should do so by reference to the pleadings only. So too should its inherent jurisdiction be exercised sparingly, and only in clear cases and in order to avoid injustice. When exercising such jurisdiction a court may go beyond the pleadings and consider affidavit evidence, but must take the plaintiff’s case at its height and resolve any conflicts in favour of the plaintiff. It is submitted that applications to strike out are not appropriate for the resolution of complex disputes of fact or law. To strike out a case at this early stage in the proceedings deprives the plaintiff of the full range of procedures under the RSC which would serve a necessary and important role in enabling him to make his case. He submits that the within proceedings contain serious factual disputes and raise complex issues of law, but that the learned High Court judge resolved such issues against the plaintiff rather than taking his case at its height. As such she entered into a prejudgment on the merits of the case, without regard to the role of the Court in an application to strike out proceedings. As such the High Court judgment constitutes an unwarranted interference with the appellant’s right of access to the courts and his right to fair procedures as protected under the Constitution and the European Convention on Human Rights.

41. The appellant’s central argument on this appeal is that Dunne J. erred in concluding that his claim, insofar as it is based on fraud, was bound to fail. His claim is that the affidavit evidence of Mr Davis is misleading, untrue and inaccurate in a manner that was so reckless as to constitute fraud, and that by reason thereof the judgments in the 2003 proceedings are nullities and ought to be set aside. He submits that Dunne J. erred in her statement of the relevant legal principles governing the jurisdiction to set aside a final judgment on grounds of fraud, and in her application of those principles in this case. This jurisdiction is complex and unusual and demands caution. He refers toAmpthill Peerage, Tasan DinandKennyand submits that fraud in the true or strictly legal sense encompasses not only false statements made knowingly or without a belief in their truth, but also those made recklessly, carless as to whether they are true or false. Thus the crux of his case is that Dunne J. adopted and applied a restrictive interpretation of fraud which wrongly confined the concept to deliberate and purposeful dishonesty. Excluding recklessness was an error of law. He further submits that the precise definition of fraud in this context is a complex issue of law and inappropriate for disposal on an application to strike out proceedings.

42. The appellant also takes issue with the manner in which the relevant legal principles were applied in this case. He maintains that it is clear from the pleadings that he is alleging fraud in the true or strictly legal sense, which encompasses recklessness. He submits that the High Court appears to have inappropriately fixed on a single reply to particulars (see para. 28,supra) as its basis for the conclusion that the appellant did not alleged fraud in the true sense. First, he maintains that he has alleged fraud “in the true sense” (although, as explained below, it is clear that Dunne J. and the plaintiff do not use that term in the same way), i.e. recklessness as to the truth of falsity of the averment. He submits that paragraph 1(a) of the replies to particulars is consistent with his case as pleaded in the Statement of Claim and that, if it is not, the Court should prefer the formal pleading in any event (Order 125, rule 1 RSC). He also submits that he ought to have been afforded an opportunity to amend his pleadings before the Court dismissed his claim.

43. Moreover, he says that the approach of the High Court in this case is in sharp contrast with the approach of this Court inKenny. There the Court found that although the allegation of fraud was little more than a mere assertion, it involved a sufficient degree of fraud and was sufficiently pleaded, even though it did not follow that the allegations were plausible or credible. By contrast, it is submitted that here the plaintiff has set out, with particularity, the material facts relevant to his claim of fraud.

44. The appellant goes on to note the High Court’s extensive reference to affidavit reference, and submits that it was wrong to strike out his claim in circumstances where there were complex disputes of fact between the parties. He draws attention to the fact that although he is not alleging that Mr Davis deliberately deceived the courts, the affidavit evidence on behalf of the appellant is to the effect that the question of Mr Davis’s intention in making the statements can only be answered following the hearing of oral evidence. Furthermore, Mr Desmond submits that any conflicts of fact on the affidavit evidence ought to have been resolved in his favour, yet Dunne J. appears to have accepted the respondent’s evidence on the matters in dispute. He submits that the learned judge failed to take account of his nuanced argument that even if it is accepted that the Tribunal’s actions in the 2003 proceedings were misleading, there remain significant disputes of fact as to how and why such misleading evidence was put before the courts in the 2003 proceedings and whether the respondent acted fraudulently in the sense that Mr Davis was reckless as to the truth or falsity of his evidence. These factual disputes go to the heart of the appellant’s case. Notwithstanding the principle that factual disputes should be resolved in a plaintiff’s favour, Dunne J. embarked on an adjudication of these disputed facts in a manner that was adverse and prejudicial to Mr Desmond.

45. The appellant also submits Dunne J. erred in her conclusion that the alleged fraud did not affect the impugned judgment in a fundamental way. He says that the alleged fraud hindered him in his dealings with the Tribunal and his challenge thereto in the 2003 proceedings. Moreover, because of the very close link between the legal advice issue and this part of the Tribunal’s inquiries, the fraud fundamentally affected the approach of the High Court and Supreme Court to the relevance and reasonableness of the Tribunal’s line of inquiry insofar as it concerned the appellant, matters which were central to the judgments in the 2003 proceedings. Had the courts been apprised of the true position and the misleading evidence, this would have affected the judgments in a fundamental way. The appellant submits again on this issue that Dunne J. prejudged the very issues which he seeks to litigate. He was thus wrongly deprived of pursuing a properly pleaded claim which gives rise to grave and far-reaching concerns about the respondent’s conductvis-à-visthe appellant in and around the 2003 proceedings.

46. Mr Desmond further submits that the High Court erred in its conclusion that his claim based on a fundamental breach of fair procedures was bound to fail. In this regard he refers,inter alia, toRe Greendale Developments (No. 3), L.P. v. M.P.,andBula v. Tara Mines (No. 6)in support of the existence of a jurisdiction to set aside a final order or judgment where necessary in the interests of justice and in order to protect constitutional rights. He accepts that this will happen only in exceptional circumstances and that the burden on an applicant seeking to establish same is a heavy one: a case will be reopened only where, through no fault of the party, he has been subject to a breach of constitutional rights or there has been a fundamental denial of justice.

47. The appellant’s critical submission on this point is that Dunne J. erred in wrongly restricting this jurisdiction to a breach of fair procedureson the part of the courts themselves. The statements of principle in the above cases are not limited to such circumstances and cannot confine this jurisdiction to such circumstances. Indeed, the overarching consideration is simply the necessity to do justice and protect constitutional rights. Thus there is nothing to prevent the jurisdiction from being exercised where the wrongful conduct is committed by another party to the proceedings. This is precisely what Mr Desmond alleges: that the respondent’s agent, by recklessly putting forward misleading, untrue and inaccurate evidence, fundamentally undermined the fairness of the 2003 proceedings. This tainted not only those proceedings but also the Tribunal’s dealings with the appellant. It breached his right to fair procedures and his right of access to the courts. Thus the facts justify the exercise by this Court of its exceptional jurisdiction to set aside the final judgments and orders in the 2003 proceedings.

48. In summary, Mr Desmond submits that the High Court judgment is at odds with the well-established jurisprudence of this Court and constitutes an unwarranted interference with his fundamental rights. The High Court did not take his claim at its height, resolved factual disputes in favour of the respondent, and sought to resolve complex factual/legal issues in a manner that was inappropriate on an application to strike out and was prejudicial to the appellant. This breached his right to fair procedures and his right of access to the courts. He was denied access to a range of procedures provided for in the RSC to assist in establishing the facts at trial: his case was dismissed at the earliest stage before the pleadings had closed, and so he was denied the opportunity to seek particulars of the respondent’s defence or to seek discovery. More fundamentally, he was denied the opportunity to have very serious matters adjudicated upon by the courts in the normal fashion, by way of plenary trial and the testing of evidence. The inherent jurisdiction to strike out is based on the need to avoid injustice, but here it has had the opposite effect.

Submissions of the Respondent

49. The respondent acknowledges that a court will exercise caution in utilising its jurisdiction under Order 19, rule 28, but this will not prevent it from striking out proceedings where it is convinced that a claim will fail (Aer Rianta v. Ryanair; O’Siodhachain v. O’Mahony(Unreported, Supreme Court, 7th December, 2001). The real purpose of this jurisdiction is to ensure that there will not be an abuse of the process of the courts. The courts should be preserved for the resolution of genuine disputes, and litigants should not be subject to the time consuming, expensive and worrying process of being asked to defend a claim that cannot succeed (Fay v. Tegral Pipes Limited[2005] 2 IR 261). The respondent relies onDublin Corporation v. The Building and Allied Trade Union[1996] 1 I.R. 468 in support of the proposition that the doctrine ofres judicataestops the parties to a final judgment from litigating the issues determined thereby again, due to the public interest in obtaining a final and conclusive determination of disputes. This finality is given precedence by the law over injustices which sometimes result.

50. The one exception to this principle is where the judgment was obtained by fraud. The respondent relies onKenny v. Trinity Collegeas outlining the circumstances in which a previous judgment can be set aside; these principles are discussed at length below. For obvious reasons, the respondent is of the view that the learned High Court judge appliedKennyentirely correctly. Central to the respondent’s position is the submission that Mr Desmond has not made the requisite allegation of fraud in order to obtain an order setting aside the judgments in the 2003 proceedings. It is clear from the Statement of Claim and Replies to Particulars that what the plaintiff is alleging is that certain statements made on behalf of the respondent were misleading and/or untrue and/or incorrect; however, and crucially, it is not alleged that there was any conscious or deliberate dishonesty on behalf of the respondent. This Court could not have been clearer inKennyin expressing that this is a precondition to a court exercising the set aside jurisdiction. This is a clear, unambiguous and binding statement of the law by this Court and is not susceptible to any more “nuanced” reading as contended for by the appellant. It is submitted that this position has recently been affirmed inVico Limited v. Bank of Ireland[2016] IECA 273 andSuperwood Holdings plc v. Sun Alliance and London Insurance plc[2017] IECA 76, [2017] IESC DET. 96. There is therefore no doubt as to what degree of fraud requires to be alleged and proved before a judgment can be set aside. It thus follows that the plaintiff cannot satisfy a fundamental pre-requisite to setting aside the earlier judgments, and accordingly he has no reasonable cause of action and his case must be dismissed.

51. The respondent submits that the High Court was correct to rely upon paragraph 1(a) of the Replies to Particulars. Despite the appellant’s attempts to diminish its significance, it clearly brings into sharp focus the conclusion that the appellant has no reasonable cause of action. It is further submitted that there is no merit to the suggestion that the application should have been determined by reference to the Statement of Claim only, and not the Replies. The respondent takes issue with the “extraordinary contention” that the appellant ought to be permitted to amend his Statement of Claim in order to save his case; it is entirely clear that he isnotalleging fraud in the sense of deliberate dishonesty, and to permit him to make the desired amendment, which the appellant accepts has no reasonable basis, would be the essence of an abuse of process. If he had any basis whatsoever for making such an allegation, it is inconceivable that he would not have done so. Finally on this point, it is submitted that Dunne J. was correct to refer to the affidavit evidence, given that she assessed the respondent’s application pursuant to the inherent jurisdiction of Court (as well as Order 19, rule 28 RSC), and that it is apparent from her judgment that the learned judge took the plaintiff’s case “at its height”. Moreover, insofar as the application pursuant to Order 19, rule 28 RSC was concerned, it is said that that clearly was capable of being determined exclusively by reference to the Statement of Claim and the Replies.

52. Quite apart from the foregoing, the respondent also submits that the alleged statements/omissions did not affect the decisions in the 2003 proceedings in a fundamental way that went to the root of those proceedings. It is submitted that the appellant has paid scant regard to the judgments in the 2003 proceedings in his submissions. The respondent has analysed these judgments in considerable detail and submits that it is clear that they could not have been affected by the alleged statements and omissions in issue. In the High Court, Quirke J. held that the question of whether the appellant or his company, IIU, had avoided the evaluation process was and remained relevant to the work of the Tribunal. The Glackin Report was a report of an investigation into former business dealings of the appellant and transactions in which he was involved; it followed that it too was relevant to the work of the Tribunal, and that it was not unreasonable for the Tribunal to be interested in its contents. Thus it is clear that the question of whether the Department obtained legal advice on the change of composition of the ESAT consortium, and what period that advice related to, wasnihil ad remin relation to whether it wasultra viresthe respondent and/or a breach of fair procedures for references to the Glackin Report to be made during the course of proceedings before the Tribunal.

53. The respondent moreover submits that the appellant has ignored the reasoning of this Court on appeal in the 2003 proceedings. The Court noted that the Glackin Report is a public document and that it was not unreasonable to consider it relevant to the work of the Tribunal. There was no interference with the appellant’s constitutional right to privacy. The Court concluded that to challenge references to a public document by the Tribunal “was to assume an immense burden.” For a court to exclude references to a public document by the Tribunal would be an extraordinary intrusion on the working of the Tribunal. Such could occur only in wholly extraordinary circumstances, which did not arise in this case. The respondent submits that, given this reasoning of the High Court and the Supreme Court in the 2003 proceedings, Dunne J. was entirely correct to observe that there was nothing in those judgments to show how it could be said that the matters complained of by the appellant were such as to affect those decisions in a fundamental way or to go to the root of the case.

54. It is submitted that this conclusion is reinforced when one considers the terms of reference of the Tribunal and the established jurisprudence detailing the limited scope to interfere with a decision made by a Tribunal of Inquiry in the exercise of its discretion (seeFlood v. Lawlor(Unreported, Supreme Court, 24th November, 2000;Bailey v. Flood(Unreported, Supreme Court, 14th April, 2000; andO’Callaghan v. Mahon[2006] 2 IR 32). The Tribunal has an inquisitorial function and it required to ascertain the truth of falsity of facts and report them to parliament (seeGoodman International v. Hamilton[1992] 2 I.R. 542;Haughey v. Moriarty[1999] 3 IR 1). Moreover, it is submitted that when one goes through the specific statements upon which Mr Desmond relies, it is clear that he cannot establish that they would have affected the 2003 proceedings in a fundamental way. The respondent addresses each such statement individually, variously asserting that they are misconceived, contradictory, or based on an obvious misreading of the evidence.

55. Furthermore, it is submitted that the alleged breach of constitutional rights and/or fair procedures does not provide any independent basis upon which to grant the reliefs sought. The respondent describes the appellant’s position in this regard as “misconceived”. The respondent stands over the judgment of the High Court, saying that it is clear from the jurisprudence of this Court that final judgments and orders can be set aside only for fraud or breach of fair procedures/constitutional rightson the part of the court. No such allegation is made in this case. Moreover, it is submitted that the allegations of breach of fair procedures that are made are without substance.

56. Finally, the respondent submits that, having regard to the pleadings and the incontrovertible documentary evidence produced, the High Court was correct to conclude that the proceedings are bound to fail and to dismiss them in the exercise of its inherent jurisdiction. Bringing a case which is bound to fail is an abuse of process and a court has jurisdiction to prevent such abuse of process.Lopes, Keohane, JodifernandMoylist Constructionare referred to as regards the extent of this jurisdiction. It is said that the significance of incontrovertible documentary evidence when the Court is exercising such jurisdiction is clear fromLopes. Where a case depends on documents, it will be much easier to reach an assessment that the proceedings are bound to fail. Though some cases are not suitable for an application to dismiss under the court’s inherent jurisdiction, this will not be so where the documentary or legal issues are clear and straightforward and it is safe for the court to reach a conclusion thereon.

57. Having regard to these principles, it is said that it is clear that the case is bound to fail: the statements/omissions in question did not affect the judgments in the 2003 proceedings in a fundamental way. LikeLopes, this case will turn on documents, transcripts and the record of proceedings: the case does not depend on hearing oral evidence or assessing the credibility of witnesses. The allegations depend on what was stated in the May, 2003 affidavit and what actually occurred during certain public hearings before the Tribunal, and, in particular, the testimony of John Loughrey during those hearings. This can be ascertained from the transcripts, which demonstrate that there is no credible basis for suggesting that the facts are as asserted by the appellant. Finally, it is said that there is no interference here with the plaintiff’s right of access to the courts (Farrell v. Bank of Ireland[2012] IESC 42). For these reasons, the High Court was right to accede to the respondent’s application and the appeal should be dismissed.

Decision
58. Two principal legal issues concerning the jurisdiction to set aside a prior judgment arise on this appeal. The first concerns the quality or degree of fraud which must be alleged in order for a judgment to be set aside for fraud. While the High Court found that only deliberate dishonesty will suffice, it is the appellant’s case that recklessness as to the truth or falsity of one’s statements will also meet the requisite threshold. If he is successful on that issue, it will also be necessary to assess whether the fraud had a fundamental effect on the impugned judgment. Only if both such aspects of the test are satisfied may the judgments in the 2003 proceedings be set aside for fraud. Even if unsuccessful on that ground, however, the appellant also seeks to set aside the earlier judgments on the grounds of a breach of constitutional rights and/or a breach of fair procedures. It is in this respect that the second main issue for determination arises. That issue is whether a judgment may only be set aside for a breach of constitutional rights/fair procedureson the part of the court itself, rather than by any other party; if limited to breaches by the court, the appeal on this ground must fail, for no such breach has been alleged.

59. Before addressing the substance of these points, it may be helpful first to set out briefly the law in respect of applications to strike out proceedings pursuant to Order 19, rule 28 RSC and/or the inherent jurisdiction of the Court. This case law is largely uncontroversial between the parties in any event.

The Law in Relation to Applications to Strike Out Proceedings
60. InFay v. Tegral Pipes Ltd[2005] 2 IR 261, McCracken J. explained that the real purpose of this jurisdiction is to ensure that there will not be an abuse of the process of the courts:

“Such abuse cannot be permitted for two reasons. Firstly, the courts are entitled to ensure that the privilege of access to the courts, which is of considerable constitutional importance in relation to genuine disputes between parties, will only be used for the resolution of genuine disputes and not as a forum for lost causes which, no matter how strongly the party concerned may feel about them, nevertheless have no basis for a complaint in law. The second and equally important purpose of the jurisdiction is to ensure that litigants will not be subjected to the time consuming, expensive and worrying process of being asked to defend a claim which cannot succeed.” (p. 266 of the report)

61. The respondent’s motion to strike out the proceedings is based on (i) Order 19, rule 28 RSC (see para. 30,supra) and (ii) the inherent jurisdiction of the Court. The relationship between these two alternative bases for striking out proceedings was considered in some detail in the judgment of Clarke J., as he then was, inLopes(see pp. 307-310 of the report). As noted by the learned judge, the inherent jurisdiction of the court should not be invoked where there is a satisfactory and existing regime available for dealing with the issue under procedural law, for to do so would set procedural law at nought. The distinction between the two types of application is explained at paragraph 17 of the reported judgment:

“An application under the RSC is designed to deal with a case where, as pleaded, and assuming that the facts, however unlikely that they might appear, are as asserted, the case nonetheless is vexatious. The reason why, as Costello J. pointed out at p. 308 of his judgment in

Barry v. Buckley

[1981] I.R. 306, an inherent jurisdiction exists side by side with that which arises under the RSC is to prevent an abuse of process which would arise if proceedings are brought which are bound to fail even though facts are asserted which, if true, might give rise to a cause of action. If, even on the basis of the facts as pleaded, the case is bound to fail, then it must be vexatious and should be dismissed under the RSC. If, however, it can be established that there is no credible basis for suggesting that the facts are as asserted and that, thus, the proceedings are bound to fail on the merits, then the inherent jurisdiction of the court to prevent abuse can be invoked.”

62. Whether it acts on the basis of the RSC or its inherent jurisdiction, it is clear that a court should be slow to strike out proceedings. InJodifern, Murray J., as he then was, stated that the reason for such caution is self-evident: “[t]he making of an order staying or dismissing the proceedings on the basis of such inherent jurisdiction deprives the plaintiff of access to the courts for a trial of his or her action” (p. 334). For these reasons, an application to strike out pursuant to the inherent jurisdiction of the court cannot be used as a form of summary disposal of the case either on issues of fact or substantial questions of law in substitute for the normal plenary proceedings (see,inter alia, Jodifern, LopesandMoylist Construction).

63. In respect of the principles governing applications pursuant to Order 19, rule 28 RSC, Denham J. said the following inAer Rianta v. Ryanair:

“12 The jurisdiction under O. 19, r. 28 to strike out pleadings is one a court is slow to exercise. A court will exercise caution in utilising this jurisdiction. However, if a court is convinced that a claim will fail such pleadings will be struck out.” (p. 509 of the report)

An application by way of motion under Order 19, rule 28 RSC is decided on the assumption that the statements in the statement of claim are true and will be proved at the trial. Thus such a motion relates to and is grounded on the statement of claim of the plaintiff.

64. The seminal judgment in respect of the inherent jurisdiction to strike out proceedings in undoubtedlyBarry v. Buckley. There Costello J. explained the basis of the jurisdiction as being “to ensure that an abuse of the process of the Courts does not take place” (p. 308 of the report). He went on to explain as follows:

“This jurisdiction should be exercised sparingly and only in clear cases; but it is one which enables the Court to avoid injustice, particularly in cases whose outcome depends on the interpretation of a contract or agreed correspondence. If, having considered the documents, the Court is satisfied that the plaintiff’s case must fail, then it would be a proper exercise of its discretion to strike out proceedings whose continued existence cannot be justified and is manifestly causing irrevocable damage to a defendant.”

65. Where the inherent jurisdiction of the court is invoked in an application to strike out an action seeking to set aside a final judgment and order, the court must consider whether the facts as pleaded are capable of discharging the onus of proof. Taking the case at its highest does not involve disregarding either that onus or the necessary elements for such an action to succeed. There are a great many cases in which it has been made clear that the inherent jurisdiction of the court should be sparingly exercised (see, for example,Lopesat para. 18;Sun Fat Chanat p. 428; andEwing v. Ireland[2013] IESC 44 at para. 27). As is clear from the above-quoted passages fromLopesandBarry v. Buckley, in an application pursuant to the court’s inherent jurisdiction, the court is not limited to a consideration of the pleadings but may be free to hear evidence on affidavit relating to issues in the case. This sets it apart from applications under Order 19, rule 28 RSC, which are determined on the basis of the pleadings only. Recently it has been emphasised by Clarke J. inMoylist Constructionthat applications to strike out are not appropriate for the resolution of complex issues of fact or law:

“[18] It seems to me to follow from that analysis that there are cases which are just not suitable for an application to dismiss under the inherent jurisdiction. Clearly, cases involving factual disputes (save to the very limited extent to which it is appropriate to engage with the facts as identified in

Keohane

) have already been held to fall into that category. However, it seems to me that there are also limitations on the extent to which cases which involve issues of law or construction can properly be the subject of an application to dismiss under the inherent jurisdiction. … A court should not entertain an application to dismiss where the legal issues or questions of construction arising are themselves complex and such as would require the type of careful analysis which can only be carried out safely at a full trial and in circumstances where the facts can be fully explored.”

66. In truth there is little more that needs to be said about the strike out jurisdiction, as there was no serious debate concerning the relevant principles; the respondent accepts that the strike out jurisdiction ought to be exercised sparingly and with caution, but maintains that this case is an appropriate one in which to exercise that jurisdiction. The appellant, of course, denies that this is so. The real battleground, however, relates to the law concerning the setting aside of a prior judgment on grounds of fraud.

Setting Aside a Prior Judgment on Grounds of Fraud
67. There undoubtedly exists a jurisdiction to set aside a prior judgment on the grounds that it was obtained by fraud (Waite v. House Spring Gardens Limited(Unreported, High Court, Barrington J., 26th June, 1985)). This jurisdiction exists as an exception to the well-recognised principle of the finality of judicial decisions. If I may be forgiven for quoting at some length from the decision of Keane J., as he then was, inDublin Corporation v. Building and Allied Trade Union[1996] 1 I.R. 468, where the learned judge explained the importance of litigation finality in the following manner:

“The doctrine of

res judicata

applicable to this, as to every final judgment or award of any competent court or tribunal, has the consequence that the parties are estopped between themselves from litigating the issues determined by the award again. The justification of the doctrine is normally found in the maxim

interest rei publicae ut sit finis litium

and it is important to bear in mind that the public interest referred to reflects, in part at least, the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes. However severe the stresses of litigation may be for the parties involved - the anxiety, the delays, the costs, the public and painful nature of the process - there is at least the comfort that at some stage finality is reached.

Save in those exceptional cases where his opponent can prove that the judgment was procured by fraud, the successful litigant can sleep easily in the knowledge that he need never return to court again

That finality is, of course, secured at a cost. The defendant who discovers as soon as the case is over that the award of damages against him is grossly excessive because of facts of which he was wholly unaware and was unable to bring before the court cannot, in the absence of fraud, resist the enforcement of the judgment against him. The plaintiff who similarly finds out that his damages are far less than those which would have been awarded had the court been in possession of evidence not available at the hearing is equally precluded from disputing the finality of the judgment. The interest of the public in that finality is given precedence by the law over the injustices which inevitably sometimes result.” (p. 481 of the report; emphasis added)

68. As explained by Murphy J. inTassan Din, it would be vexatious and an abuse of the process of the court to litigate any matter which was already concluded by a final and binding order of the court (p. 574). Thus as a preliminary step towards reopening such litigation, it is imperative to set aside the previous order and the judgment of the court. That is precisely what the appellant is seeking to do. As is clear from the above, the High Court applied the three-partKennytest to his application and concluded that the appellant had failed to satisfy two of the three essential pre-requisites to the setting aside of a prior judgment on the grounds of fraud. I will turn now to the first of the major issues on this appeal.

The Quality or Degree of Fraud or Dishonesty that Must be Alleged

69. The fundamental basis for the appellant’s failure in the court below, insofar as his claim based on fraud was concerned, at least, was that Dunne J. concluded that he had not alleged the requisite degree of fraud for the purposes of the set aside jurisdiction. In short, he alleged recklessness amounting to fraud, whereas it was held that only deliberate and purposeful dishonesty would suffice. Accordingly, his claim fell at the first hurdle. On this appeal, the appellant has argued that the High Court applied too restrictive a definition of “fraud” for this purpose. It is this point that I will consider first.

70. It is clear that, in reaching the decision which she did, Dunne J. was applying “the necessarily stringent threshold set out inKenny v. Trinity College Dublinfor the setting aside of a final and conclusive judgment” (per p. 51 of the judgment).Kennywas a judgment of Fennelly J. for this Court. It will therefore be necessary to address the facts and holding in theKennycase at some length. Before doing so, however, I propose to look briefly to the two judgments which were particularly influential in guiding Fennelly J. to the conclusions which he reached; they were theAmpthill Peerage Case[1977] A.C. 547 andTassan Din v. Banco Ambrosiano S.P.A.[1991] 1 I.R. 569.

71. TheAmpthill PeerageCasearose from a rather unique set of facts. It concerned the legitimacy of a claim of succession to the British peerage title of Baron Ampthill. One of the petitioners, Geoffrey Russell, had obtained a declaration of legitimacy pursuant to the provisions of the Legitimacy Declaration Act 1858 stating that he was the lawful child of John Russell, the 3rd Baron Ampthill, and his first wife. The 3rd Baron had not recognised Geoffrey as his son. Upon the 3rd Baron’s death, Geoffrey’s claim to succeed to the Barony of Ampthill was based on this declaration of legitimacy. The other petitioner, John Russell, was the late 3rd Baron’s eldest son by his third wife. If Geoffrey’s petition was successful, John’s would fail; however, if Geoffrey was unsuccessful, John was the next in line to succeed to the Barony. John contested Geoffrey’s petition on the grounds that he was not, or not proved to be, the son of the 3rd Baron. John wished to have the question of Geoffrey’s legitimacy determinedde novoupon such evidence as was no available, including blood tests (the same not having been part of the original legitimacy proceedings).

72. The case was decided by the Committee for Privileges of the House of Lords. John was unsuccessful in his submission that the legitimacy declaration was not binding upon the House of Lords in a peerage claim. Thus in order to succeed in his challenge to Geoffrey’s claim, John needed to have the declaration of legitimacy set aside. He was unable to show that it was vitiated by any procedural irregularity. The one remaining ground of challenge open to John, therefore, was to prove that the declaration had been obtained by fraud, the legislation expressly permitting a challenge on such basis (although collusion had also been alleged, this claim was dropped). What is relevant for present purposes is that the Law Lords applied the principles relevant to all cases concerning attempts to set aside prior judgments. I will focus on their statements relative to the quality or degree of fraud which must be alleged, for that is really the point which is in dispute on this appeal. As will be seen, each of the four Law Lords who gave an opinion expressed the applicable principles in a slightly different way. At p. 571, Lord Wilberforce stated as follows:

“What is fraud for this purpose? Learned counsel for John Russell without venturing upon a definition suggested that some kind of equitable fraud, or lack of frankness, was all that is meant, but I cannot accept so anaemic an ingredient. In relation to judgments, and this case is surely

a fortiori

or at least analogous,

it is clear that only fraud in a strict legal sense will do. There must be conscious and deliberate dishonesty, and the declaration must be obtained by it

. Authorities as to judgments make clear that anyone wishing to attack a judgment on grounds of fraud must make his allegation with full particularity, must when he states it be prepared to prove what he alleges and ultimately must strictly prove it. The establishment of the fraud is a condition precedent to reopening the case: see

Jonesco v. Beard

[1930] A.C. 298. Nothing less can be expected in the present case.” (Emphasis added).

73. At p. 591, Lord Simon expressed the following view:

“To impeach a judgment on the ground of fraud

it must be proved that the court was deceived into giving the impugned judgment by means of a false case known to be false or not believed to be true or made recklessly without any knowledge on the subject.

No doubt, suppression of the truth may sometimes amount to suggestion of the false:

The Alfred Nobel

[1918] P. 293. But, short of this, lack of frankness or an ulterior or oblique or indirect motive is insufficient.

MoreoverJonesco v. Beard[1930] A.C. 298, a decision of your Lordships’ House, confirmed that, to impugn a judgment on the ground of fraud, the fraud must be alleged with particularity and proved distinctly. A person is not permitted merely to allege fraud in the hope of discovering it as the case develops.” (Emphasis added)

74. For Lord Kilbrandon, at pp. 595-596:

“It is fraudulent conduct to represent to another what is not true

with the intention

of inducing that other to act contrary to his own interest, or, sometimes, his duty. If the conduct has succeeded, fraud has been committed. Fraud is a civil wrong when it breaches a duty not to deceive; the deception may consist of the imparting of false information or the non-disclosure of true information. …

This I understand to be the meaning of "fraud" where it is found in section 8 of the Act of 1858. Thus if a declarator of legitimacy has been obtained by thedishonestmisrepresentation of facts, whether by assertion or by non-disclosure, made by or on behalf of the petitioner, to a person whom from his relationship with the representer was entitled to have the truth disclosed by the representer, that declaration is not binding upon any person prejudiced by it. Since the section is concerned with obtaining a decree of the court by fraud, I shall assume that it is the relationship of a duty owed to the court whichwill render fraudulent in the legal sense any misrepresentation which succeeded in deceiving the court.” (Emphasis added)

75. Finally, at p. 598, from the speech of Lord Russell of Killowen (no relation to the family in question, as he himself was keen to stress):

“I consider that fraud in this context is the same as that which is required to be established in an action to set aside an ordinary judgment

inter partes

on the ground that it has been obtained by fraud: less than that will not suffice. In such an action particulars of that which is alleged to have been the fraudulent conduct must be given, and strong proof of the fraudulent conduct is required. This is not a mere matter of court practice: it is something which justice requires, having regard to the gravity of an accusation of

dishonest

dealing designed to pervert the course of justice and achieving that aim.” (Emphasis added)

76. The Law Lords unanimously found that the declaration of legitimacy had not been obtained by fraud. Accordingly, John’s challenge to Geoffrey’s petition was unsuccessful, and Geoffrey succeeded to the Barony of Ampthill. Precisely what the case tells us regarding the requisite degree of fraud that must be alleged and proved is addressed later in this judgment.

77. The other judgment with an obvious influence on Kenny was that of Murphy J. for the High Court inTassan Din. The details are of no great importance for present purposes. Here again the plaintiffs brought proceedings seeking to set aside a final order of the Supreme Court and to obtain a new trial. This application was based the grounds that the original proceedings were not conducted in accordance with natural justice because evidence was now available to the plaintiffs that had not been available to them during the original proceedings, it being alleged that the defendants had fraudulently concealed same. As in this case, the defendants brought a motion to strike out the plaintiff’s claim on the ground that it disclosed no reasonable cause of action and/or that it was frivolous and vexatious and an abuse of process. The judgment of the High Court on the defendant’s motion was delivered by Murphy J. He first referred to the case law, some of which is set out above, which in his view established that a decision of the Supreme Court can be set aside for fraud. As part of his consideration of the issues, the learned judge quoted the relevant passages of the speeches of Lord Wilberforce and Lord Simon inAmpthill Peerage, as set out above. His conclusion on what must be pleaded is set out at p. 582 of the report:

“In the light of the foregoing I am satisfied that nothing short of fraud pleaded with particularity (and ultimately established on the balance of probabilities) would be sufficient grounds in the present case for upsetting the decision given by the Supreme Court on the 8th April, 1987.”

78. Although this is undoubtedly a correct statement of the law, it does not greatly assist the Court’s consideration of the particular issue presenting on this aspect of the appeal, which is the quality or degree of fraud that must be alleged; the learned judge appeared to endorse the views of Lord Simon and Lord Wilberforce equally. Ultimately Murphy J. acceded to the defendant’s application and struck out the plaintiff’s application to have the original judgment and order set aside; in this regard he noted, inter alia, that it would have been necessary for the plaintiffs to demonstrate how the omitted documents could have altered the outcome of the earlier proceedings, and no evidence had been put forward to show how they could have had any impact on the decision which the plaintiff sought to impeach. It thus could not be said that the original judgment had been obtained by fraud.

79. Turning, then, to theKennycase. This case in fact arose out of an application to set aside a judgment that I had delivered (reported at [2001] 1 IR 565), on the grounds that I had been misled by fraud on the part of Trinity. The full facts and complex procedural history of the case need not detain us here. In short, the case concerned Mr. Kenny’s efforts to contest the validity of the planning permission granted for the redevelopment of Trinity Hall, the university’s student halls of residence in Dartry. He sought to bring judicial review proceedings to this end. The core area of dispute – although, as I well recall, there were many – concerned the location of boilers throughout the development. I refused leave to challenge the relevant decision of An Bord Pleanála, and also refused an application for the necessary certificate for an appeal.

80. Subsequently Mr. Kenny alleged that Trinity had misled the Court (that is, had misled me) with regard to its true intentions as regards the plans for the location of the boilers; the basis for this was that he had discovered that Trinity had previously applied for a fire safety certificate based on architectural plans that disclosed a different location for the boilers than did the plans that I had considered in the judicial review application. Accordingly, it was his case that the judgment in the judicial review proceedings had been obtained by fraud, and that it should be set aside and a new hearing ordered. Trinity responded by issuing a notice of motion seeking to have the plaintiff’s proceedings struck out. That motion was refused in the High Court but allowed on appeal. However, for reasons irrelevant to this judgment, this Court set aside its order allowing Trinity’s appeal, and the appeal was reinstated. The judgment of Fennelly J. followed upon the rehearing of the appeal.

81. Though they are set out in the decision of the High Court in this case, it may nonetheless be helpful to set out again the core passages from the judgment of Fennelly J. inKenny, at least insofar as they are relevant to this appeal. At paragraph 50, the learned judge noted that:

“50. From a reading of the authorities it appears necessary to consider three aspects of this important, though exceptional power: firstly, the quality or degree of fraud or dishonesty that must be alleged; secondly, the extent to which it must be shown that the alleged fraud affected the impugned judgment; thirdly, the particularity with which the fraud must be pleaded.”

82. Having quoted from the speeches of Lord Simon, Lord Wilberforce, and Lord Russell of Killowen in theAmpthill Peerage Case, the learned judge went on to hold as follows at paragraphs 54-57 of his judgment, which are the pivotal sections thereof insofar as the applicable legal principles are concerned:

“54. I am satisfied that, in order to ground an action to set aside a judgment, the plaintiff must allege fraud in the true sense, that is deliberate and purposeful dishonesty, knowing and intentional deceit of the court. That approach is consistent with the statement of principle made by Keane J., in

Dublin Corporation v Building & Allied Trade Union and others

, with the interests of parties to litigation who have secured a final decision of a court and with the overriding public interest in finality of litigation.

55. In addition, the fraud alleged must be such as to affect the impugned decision in a fundamental way. It will not suffice to allege that the new situation revealed by the uncovering of the fraud might have affected the judgment. It will not be enough to show, for example, that a witness lied unless it is shown that the true version of his evidence would probably have affected the outcome. Mr Galligan, on behalf of Trinity, submitted that the court should adopt the test adopted by O'Hanlon J. in

Kelly v Ireland

, cited above. The test would be whether new evidence ‘

changes the whole aspect of the case

.’ That was, of course, a very different type of case. The plaintiff claimed damages for alleged assault by gardaí. He had been convicted in a criminal trial, where the court had rejected as untrue the allegations now made in a civil action. Thus, there was a question of issue estoppel. However, in the course of the proceedings, the plaintiff claimed in addition to have found new evidence which had not been before the criminal court. O'Hanlon J adopted the test I have mentioned, following a

dictum

of Goff LJ in

McIlkenny v Chief Constable of the West Midlands

[1980] QB 283. Would the alleged new evidence ‘

change the whole aspect of the case’

? I believe that, in an action to set aside a judgment based on an allegation that the court was deliberately deceived into making the impugned decision no less stringent test should be required. There must be something fundamental, something that goes to the root of the case.

56. An additional point arises. In general, a court approaches an application to dismiss pursuant to Order 19, rule 28 on the basis of the pleadings. Do the pleadings, as they are read by the court, disclose a cause of action? Would the alleged facts, if true, confer a cause of action? That test clearly applies in a modified form to such an application when made in a case such as the present. Where the substance of the claim is the validity of a final decision of a court of competent jurisdiction, the court hearing an application to dismiss must be permitted to examine the impugned decision, including the reasoning of the judgment. It cannot be constrained by the version of that decision disclosed in the pleadings seeking to set it aside.

57. The third matter is the necessity for particularity in pleading. It is the unanimous view of the various judges cited in argument that the allegation of fraud said to have deceived the former court must be pleaded with particularity and exactness. I have cited the statement of Barrington J in

Waite

. Lord Buckmaster in

Jonesco v Beard,

cited above, insisted that ‘

the particulars of the fraud must be exactly given…

’ Similarly, according to Lord Wilberforce, ‘

anyone wishing to attack a judgment on grounds of fraud must make his allegation with full particularity……’

In essence, the nature of the fraud, deceit or dishonesty must be clearly and unambiguously alleged. It is not enough to allege mere non-disclosure, unless the plaintiff can identify an obligation to disclose arising either under law or from the circumstances.”

83. On the facts of the case, Fennelly J. considered that two of the three essential requirements were satisfied. The statement of claim alleged intentional deceit (para. 58 of the judgment) and the alleged fraud was pleaded with sufficient particularity (para. 59). However, the learned judge was not satisfied that the alleged fraud impacted on the impugned judgment in a fundamental way; indeed, he concluded that it was “completely irrelevant” to my judgment in the judicial review proceedings that Trinity had applied for a fire safety certificate based on plans which showed boilerhouses being placed in a basement (para. 67). Thus the case disclosed no reasonable cause of action and was therefore frivolous and vexatious, in the technical sense. Fennelly J. therefore allowed the appeal and made an order dismissing Mr Kenny’s attempt to have the judgment set aside (para. 68), and noted that he had reached the same conclusion based on the application to dismiss pursuant to the inherent jurisdiction of the Court (paras. 69-71).

84. It may be useful to draw together the principles as derived from the above judgment of Fennelly J., although I am mindful that I will struggle to better the summary provided by Dunne J. at pages 21-22 of her judgment in this case. In any event, the following principles apply:

i. The power to set aside a final judgment on the ground of fraud is an exceptional one.

ii. This jurisdiction must be seen against the backdrop of the important principle ofres judicataand of the public policy which discourages endless litigation, which reflects the interest of all citizens who resort to litigation in obtaining a final and conclusive determination of their disputes.

iii. There are three aspects of this important, though exceptional, power:

First, the quality or degree of fraud or dishonesty that must be alleged

. In order to ground an action to set aside a judgment, the plaintiff must allege fraud in the true sense, that is,

deliberate and purposeful dishonesty

, knowing and intentional deceit of the court.

b.Second, the extent to which it must be shown that the alleged fraud affected the impugned judgment. In this respect, the fraud alleged must be such as to affect the impugned decision in afundamentalway. It will not suffice to allege that the new situation revealed by the uncovering of the fraudmighthave affected the judgment. The fraud must be such as to “change the whole aspect of the case”. Put another way, the fraud must go to the root of the case.

On a related point, although typically a court approaches an application to dismiss pursuant to Order 19, rule 28 on the basis of the pleadings alone, that test must apply in a modified form in an application such as the present; here, where the substance of the claim is the validity of a final decision of a court of competent jurisdiction, the court hearing an application to dismiss must be permitted to examine the impugned decision, including the reasoning of the judgment.

Third, the particularity with which the fraud must be pleaded

. The allegation of fraud said to have deceived the former court must be pleaded with particularity and exactness. The nature of the fraud, deceit or dishonesty must be clearly and unambiguously alleged.

85. A few observations may be made aboutKennyat this juncture. First, as is clear from paragraphs 38 and 39 of the judgment, the plaintiff did not argue for any lower threshold of fraud than “conscious and deliberate dishonesty”. As is recorded at paragraph 38, this was the standard urged by Trinity, and paragraph 39 opens by stating that Mr Kenny “[did] not contest” such a proposition. Presumably this was because he was able to demonstrate fraud even to that standard, as is clear from paragraph 58 of the judgment: “The amended statement of claim undoubtedly alleges fraud consisting of intentional deceit of McKechnie J. … I consider that it contains allegations to a sufficient degree of fraud or dishonesty to satisfy the standard required by the cases cited.” Accordingly, the Court inKennywas not presented with any counterargument or alternative to what was demonstrably quite a high threshold proposed by Trinity. As the point was not argued, the ostensible precedent established by that case may not be quite so difficult a hurdle for the appellant to surmount as it usually is.

86. Second,Ampthill Peerageis not entirely clear as to the quality or degree of fraud which must be alleged to set aside a judgment for fraud. Based on the passages set out above, it seems clear that for Lord Wilberforce and Lord Russell of Killowen, only deliberate dishonesty would suffice. There are references to intentional inducement and dishonest representations in the speech of Lord Kilbrandon, though he also referred to “any misrepresentation which succeeded in deceiving the court” as being fraudulent in a legal sense, which is perhaps less precise and could be argued either way. Significantly, Lord Simon referred to deliberate falsity or statements “made recklessly without any knowledge on the subject”. Each of the five members of the Committee who did not give an opinion is recorded as having agreed with each of the four Law Lords I have mentioned. Lord Kilbrandon also stated himself to be in agreement with each of the other members of the Committee. The result of this is that it is difficult to definitively say which statement of the law reflects the true position in respect of the requisite degree or quality of fraud. An argument can be made either way depending on which opinion is quoted. However, even if the point was not truly settled, it may fairly be said that in adopting the interpretation which he did inKenny, which was that favoured by Lord Wilberforce and Lord Russell of Killowen, Fennelly J. went with the approach adopted by an apparent majority of the Law Lords.

87. Notwithstanding the above reflections, however, I cannot accept the appellant’s submission that it was Dunne J. in the High Court who, for the first time, “adopted and applied a restrictive interpretation of fraud which confined the concept to circumstances of deliberate and purposeful dishonesty and knowing and intentional deceit”. That, clearly, was the unambiguous holding of Fennelly J. for this Court at para. 54 ofKenny: “the plaintiff must allege fraud in the true sense,that is deliberate and purposeful dishonesty, knowing and intentional deceit of the court”(emphasis added). Whatever about the Court’s reasons for reaching that conclusion, on which I will say more in a moment, the indisputable holding of Fennelly J. was that fraud in the true sense, in this context at least, must be deliberate and intentional. To answer a question posed by the appellant, that paragraph can only be read as an exhaustive statement of the fraud that will suffice. Though the appellant seeks to minimise this judgment by suggesting in his written submissions that “some of the case-law” suggests a requirement for deliberate dishonesty, but that in fact the true position is more nuanced and that dishonesty is not a precondition to showing fraud, this is a clear attempt to sidestep what is a plain judgment of this Court establishing that only deliberate dishonesty will suffice. I am fortified in this conclusion by the fact that this reading ofKennyhas recently be applied by the Court of Appeal inVico Ltd v. Bank of Ireland[2016] IECA 273 (at para. 27) andSuperwood Holdings Plc v. Sun Alliance[2017] IECA 76 (at para. 6). Accordingly, certainly insofar as Dunne J. in the High Court was concerned, she was bound to apply that judgment of this Court.

88. However, the appellant has raised a number of arguments to the effect that the learned judge erred in adopting that interpretation of fraud. These arguments must therefore be dealt with in turn. First, although the appellant acknowledges (as he must) the judgment of Fennelly J., he focuses in on the use of the words “fraudin the true sense” and submits thatKennyin fact supports the broader interpretation of fraud that he is suggesting. The appellant submits that these words indicate that Fennelly J. did not intend so narrow a construction of fraud as was applied by the High Court in this case. Dunne J. found that the appellant had not alleged fraud “in the true sense”, meaning deliberate and purposeful dishonesty. The appellant maintains that fraud “in the true sense” is precisely what he is alleging, but he takes that term to cover recklessness as well as deliberate fraud. Clearly, therefore, a core issue on this appeal is what fraudin the true sensemeans.

89. As part of this submission, the appellant submits that the definition and proof of fraud give rise to notoriously complex questions of law. He observes that Henchy J., inBanco Ambrosiano v. Ansbacher[1987] I.L.R.M. 669, commented that “[w]hat will constitute fraud in a civil action is not easy to state in advance … it may assume an infinite variety of forms” (at p. 700 of the report). He says that the most widely approved definition of fraud in the Irish courts is that of Lord Herschell inDerry v. Peek(1889) 14 App Cas 337, which includes false representations made “recklessly, carless whether [they] be true or false” (p. 374). This definition was approved inMcCaughey v. Anglo Irish Bank Corporation Ltd & anor[2012] 4 I.R. 417andHarrold v. Nua Mortgages Limited[2015] IEHC 15, to name but two of many examples given. If this wider definition of fraud were to be adopted for the purposes of the set aside jurisdiction, the appellant would succeed on the first of the three pre-requisites to exercising that jurisdiction. The appellant bolsters this submission by reference to the speech of Lord Simon inAmpthill Peerage, quoted and discussed above.

90. Certainly one could not deny that the precise meaning of “fraud”, even fraud “in the true sense”, may very much depend on the area of law under discussion, the nature of the application being made, and other factors. It is evident from the jurisprudence quoted – which is not contradicted by the respondent – that in some circumstances, for example, to sustain an action of deceit, recklessness will suffice. However, insofar as the appellant’s argument is that because “fraud” sometimes (or even often) carries this meaning, that is the meaning which must therefore be attributed to Fennelly J. when he said fraud “in the true sense”, this is an argument that I cannot accept. The reason for this is that Fennelly J. stated in the very next clause of the sentence what it was that he meant by fraud “in the true sense”, namely, that it requires deliberate and purposeful dishonesty. Thus although the term “fraud” undoubtedly carries an array of meanings and connotations, both in a legal and a wider context, I cannot see how it is open to the appellant to suggest that Fennelly J. can somehow be read to have intended to import some lower threshold of fraud than that which he explicitly expressed himself as meaning. That fraud has different meanings in different contexts does not alter the fact that there is a judgment of this Court setting out precisely what “fraud in the true sense” means in the context of an application to set aside a prior judgment, and that what is required is deliberate and purposeful dishonesty. Accordingly there is clear, binding authority of this Court as to what standard of fraud will suffice, and recklessness as to truth or falsity does not reach the high threshold demanded. I do not see that there was any reading ofKennyopen to Dunne J. on which she could have adopted a lower threshold, notwithstanding the meaning that might rightly be attributed to “fraud” in other legal contexts.

91. I reject the appellant’s submission that Dunne J., in reaching the decision which she did on this issue, was overly fixed on a single Reply to Particulars (see paras. 28, 34 and 42,supra). This submission is based on a misreading of her judgment. The appellant’s submission is that the learned judge appears to have latched onto that reply, which stated that “the plaintiff has not pleaded that the aforesaid statements were made fraudulently”, and has looked to that single sentence (out of context) as an apparent concession by the appellant that he has not alleged fraud. It is suggested that in so doing, Dunne J. overlooked all of the myriad other occasions on which the appellant made it clear that he is alleging fraud. The difficulty for the appellant is that the quality or degree of fraud that he is alleging is not the standard which Dunne J., rightly, considered to be fraud “in the true sense”. She did not strike out his case because of Reply 1(a) alone; in fact the quoted portion of Reply 1(a) is entirely consistent with the whole thrust of the plaintiff’s case, which is that recklessness as to truth or falsity is sufficient to amount to fraud for the purposes of the set aside jurisdiction. That this is his position is abundantly clear from the pleadings, the Replies to Particulars, and indeed even his written submissions to this Court. At paragraph 2 thereof he acknowledges that “[i]t is not alleged that there was conscious and deliberate dishonesty on the part of Mr. Davis (nor, obviously, on the part of the Respondent personally).” Again, at paragraph 30: “it is not alleged that the Tribunal acted with a deliberate fraudulent intention, but rather that the Tribunal acted recklessly as to the truth or falsity of the evidence.” Thus it is apparent that it is no part of the appellant’s case that there was deliberate fraud. He is reliant on fraud having some other meaning, a lower threshold. Therefore this was not a situation of the learned judge favouring one Reply to Particulars over everything else; rather it was that the reply itself reflects a wider argument that was rejected by the judge, as she was bound to do by the case law of this Court. She would have reached entirely the same conclusion had she had no regard to the Replies to Particulars at all.

92. The appellant has argued that his case was not taken at its height by the learned judge, and complains that she erred in resolving the undoubted conflicts on the affidavit evidence in favour of the respondent. However, it is apparent that such submissions are predicated on it being accepted that recklessness qualifies as fraud in the relevant sense; given, as I have just found, that this is not so, these arguments simply fall away. Even taking his case at its height and assumingarguendothat all of his evidence is correct, the appellant would still have failed to allege fraud in the relevant sense for the purposes of an application to set aside a prior judgment; he simply has not alleged intentional dishonesty.

93. On a related point, I reject out of hand the appellant’s suggestion that Dunne J. erred in failing to afford him an opportunity to amend his Statement of Claim so as to save his case, that is, to permit him to now allege deliberate and dishonest fraud. It is true that McCarthy J., inSun Fat Chan, stated at p. 428 of the report that “if the statement of claim admits of an amendment which might, so to speak, save it and the action founded on it, then the action should not be dismissed.” Certainly this accords with the general principle that a Court should be cautious and slow in its utilisation of the strike out jurisdiction. However, that cannot mean that it is appropriate in all cases to permit an amendment. The present case presents a clear illustration of why this is so. The appellant does not seek to correct an obvious drafting error, nor is he suggesting some minor amendment to save a pleading which is deficient in a technical sense. Indeed he is not even positing that a mere addition might be made to save the Statement of Claim. Rather his argument is that he should now be allowed to plead that which he has repeatedly and expressly disavowed as being his true position, namely, that there was conscious and deliberate dishonesty on the part of Mr Davis. The proposed amendment is entirely inconsistent with his claim as pleaded; he seeks to plead an assertion which actively contradicts the original pleadings and even his written submissions to this Court. I agree with the respondent that to permit such an amendment at this juncture, purely for the purposes of “saving” the claim and in circumstances where the appellant demonstrably does not truly believe that there is a stateable basis for the proposed amendment, would amount to an abuse of process.

94. Although no real objection is taken on this next point, Mr Desmond notes in his submissions that the defendant’s applications pursuant to Order 19, rule 28 RSC and pursuant to the inherent jurisdiction of the Court appear to have been dealt with somewhat interchangeably by the High Court. It is true that it is not altogether clear, from the judgment at least, which basis was used to strike out the plaintiff’s claim. As noted above, applications pursuant to Order 19, rule 28 RSC are limited to a consideration of the pleadings and must take the facts as pleaded as true. Affidavit evidence may be considered when the Court is exercising its inherent jurisdiction. However, to the extent that there may have been any blurring of the lines between these two jurisdictions, I am satisfied that the same provides no basis on which to impugn the judgment of the High Court. Insofar as affidavit evidence was considered, that plainly was permissible when considering the application pursuant to the Court’s inherent jurisdiction. Moreover, there is no reason to believe that the same was considered in relation to the Order 19, rule 28 application also; manifestly the pleadings themselves do not allege deliberate dishonesty, and this was the basis for striking out the plaintiff’s claim. No reference to affidavit evidence would be required to reach such a conclusion.

95. The appellant has also suggested that this case is not an appropriate one for the exercise of the strike out jurisdiction because of the huge volume of documents involved, the many factual disputes which arise, and the fact that it raises complex issues of law. He makes the point that he was denied access to the range of procedures (including discovery, interrogatories etc.) which could have assisted him in proving his case at trial. Undoubtedly the case law establishes that the jurisdiction to strike out proceedings cannot be used as a form of summary disposal of matters that would normally require a plenary hearing, and it will often be inappropriate to exercise such jurisdiction where the case involves complex disputes of law or fact. However, I do not see how such considerations can avail the appellant in the context of the instant case. Here the basis of the decision to strike out was, first, that he had not pleaded the requisite degree of fraud, and, second, that the matters complained of had not affected the judgments in the 2003 proceedings in a fundamental way. These issues were capable of resolution without the need to consider the factual matters in contention between the parties: the issue of whether the requisite degree of fraud had been alleged was capable of being determined by reference to the pleadings, and the latter issue could be resolved by reference to the pleadings and the judgments in the 2003 proceedings. Moreover, although the proceedings gave rise to a point of law, the same was a net issue which was the subject of a comprehensive and detailed written judgment in the High Court. It did not depend on any wider factual matrix. Accordingly, I do not accept the submission that the nature or circumstances of this case rendered it an inappropriate one for the exercise of the strike out jurisdiction.

96. Mr Desmond has also complained that, at this stage, it is not open to him to allege intentional dishonesty as he has not yet had sight,viadiscovery, of the documents which would allow him to substantiate such a claim, and thus he can only allege recklessness. However, it is only an allegation of intentional fraud which will suffice to set aside a prior judgment, and the appellant has repeatedly expressly disavowed the suggestion that it is any part of his case that the respondent or his servants and agents acted with intentional dishonesty. Apart from seriously doubting that the purpose of discovery is as suggested, it must be recognised that on an application such as this the Court’s function, if it is otherwise satisfied that it is appropriate to so do, is to determine the litigated issue having regard to the evidence available and the submissions made. In the circumstances of this case, I am of the view that it was appropriate to exercise the strike out jurisdiction even at this stage of the proceedings. The plaintiff cannot be given a right to re-litigate these proceedings simply on the basis of an unsubstantiated suggestion that there may be evidence of intentional fraud in the possession of the respondent, without any basis for suggesting same. Accordingly, I reject this submission.

97. The argument in this case centred on whatKennytruly decided and whether it was correctly applied in the High Court. In his written submissions, the appellant did not advance the case that ifKennyin fact decided that only deliberate dishonesty will suffice for fraud, and was therefore correctly applied by the High Court, thenKennywas itself wrongly decided, and that this Court should now adopt a different test for “fraud” in the relevant context. No reference was made to the established case law according to which this Court may depart from a previous decision. As noted above, the appellant confined himself to the argument thatKennyalready embraced a less stringent definition of fraud which encompasses recklessness, an argument which, for the reasons above given, I cannot accept.

98. Given this approach, no considered argument was directed to the question of why fraud is given a more restrictive meaning in the context of an application to set aside a prior judgment than it is in other contexts. However, at the hearing of the appeal, counsel for Mr Desmond did suggest, for the first time, that ifKennydoes not embrace recklessness as amounting to fraud, then that decision is wrong. If this was an invitation to the Court to reconsiderKenny, it is regrettable that this course was not flagged earlier in the appeal, so that full submissions could have been obtained on the application of the test by which this Court will depart from its own previous decisions. In short, the Court will only do so where satisfied that the prior decision is “clearly wrong” or there are “compelling reasons” to depart from the principle ofstare decisis(see, for example, the judgments of this Court inAttorney General v. Ryan’s Car Hire Ltd[1965] I.R. 642,Mogul of Ireland v. Tipperary (North Riding) County Council[1976] I.R. 260 andD.H. v. Judge Groarke and Ors[2002] 3 IR 522). This is a heavy burden to satisfy. In my view, the strong public policy arguments in favour of the finality of litigation, and the well-rehearsed jurisprudence to the effect that the jurisdiction to set aside a final judgment is an exceptional one, provide a clear explanation for why such a high threshold of fraud is required. It is entirely in keeping with these considerations to hold that only deliberate dishonesty will suffice for the purposes of setting aside a prior judgment, even if a lower threshold for fraud may be acceptable in other legal contexts. As such, I would reject the argument thatKennywas wrongly decided.

99. Accordingly, Dunne J. was correct in her application ofKenny. Fraud in the context under discussion requires “deliberate and purposeful dishonesty, knowing and intentional deceit of the court”. As the plaintiff has not alleged same, the learned judge was correct in finding that he cannot establish this essential pre-requisite to the setting aside of the 2003 proceedings, and in striking out his claim as a result.

Whether the Statements/Omissions in Question Affected the Judgments in the 2003 Proceedings in a Fundamental Way

100. The foregoing section of this judgment is sufficient to dispose of this appeal insofar as the application to set aside based on fraud is concerned. However, like Dunne J., I too believe that the statements and omissions in question would not have affected the judgments in the 2003 proceedings in a fundamental way in any event. As I am broadly in line with what the learned judge decided, I do not propose to dwell too long on this point.

101. It is common case that a final judgment may only be set aside for fraud if the fraud alleged is such as to affect the impugned decision in a fundamental way. The relevant authorities have been cited above. The background to the case has been addressed at paras 4-11,supra; a short description of the judgments in the 2003 proceedings is contained at paras. 12-13, and the statements and omissions said to constitute the fraud are found at paras. 23-24. In order to assess what impact those statements/omissions may have had, I will now set out what, in my view, are the key passages at the heart of the decisions in the 2003 proceedings. These are, in any event, essentially the same as those passages identified by Dunne J.

102. In the High Court, Quirke J. noted that the appellant’s overriding complaint was that the respondent had caused or permitted witnesses to be questioned in detail upon the contents of the Glackin Report. The appellant claimed that he had been compromised in his ability to defend his good name as a result. In assessing the relevance of the report, the learned judge addressed two questions: (a) whether the evaluation of Mr Desmond, as the owner of an interest in ESAT Digifone, was relevant to the work of the Tribunal, having regard to its terms of reference and, if so, (b) whether the decision by the Tribunal to permit the examination of witnesses as to the contents of the Glackin Report amounted to an unreasonable and disproportionate exercise of the Tribunal’s discretion. In relation to question (a), the learned judge held as follows:

“The award of the second GSM licence was capable of conferring very substantial benefits upon the successful applicant. During the evaluation process in 1995 and when the licence was awarded in October, 1996, Mr. Lowry was the Minister responsible for the award of that licence. An investigation into the award of the licence was and is, clearly, within the tribunal’s terms of reference. It was perfectly reasonable for that investigation to include an inquiry into and a detailed analysis of the evaluation process which resulted in the recommendation that the licence should be awarded to ESAT Digifone. Such an inquiry necessarily involved the collecting of evidence from members of the evaluation team which made the recommendation.

When the tribunal discovered (as it did) that, at the time when it made its recommendation the licence should be awarded to ESAT Digifone, the evaluation team was under an erroneous impression as to the true ownership of that consortium, its terms of reference not only entitled it, but probably obliged it, to investigate how that had occurred. That further investigation necessarily required the inquiry referred to in the opening statement read by counsel for the tribunal on the 12th December, 2002, into:

‘Whether the applicant or IIU, although a part of the consortium to which the competition result was awarded, that is the licence issued, in fact avoided the evaluation process and whether this was a result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry.’

It follows that the question of whether the applicant or his company, IIU, avoided the evaluation process was, is and remains relevant to the work of the tribunal under its terms of reference. It follows, further, that an evaluation of the applicant is similarly relevant to the work of the tribunal.” (p. 349)

As to question (b), the critical findings of Quirke J. were the following:

“[T]he respondent was entitled to follow every line of inquiry which fell within the tribunal’s terms of reference until he had either discovered facts which gave rise to concern or, alternatively, established that the concern voiced was groundless.

It seems to me that the applicant’s former business transactions and dealings were and remain relevant to the question as to whether or not the applicant avoided the evaluation process and ‘whether this was the result of any intervention on the part of or as a result of exertion of any influence by Mr. Michael Lowry’.

The Glackin report comprised a report of an investigation into former business dealings of the applicant and transactions in which he was involved. It follows, from the foregoing, that it was and remains relevant to the work of the tribunal. It does not seem unreasonable to me that the tribunal might have an interest in the contents of that report. Neither does it seem unreasonable to me that the tribunal might wish to inquire from members of the evaluation team as to whether or not the contents of the Glackin report would, if known to the evaluation team, have had a bearing or influence upon the recommendation which they made to award the licence to ESAT Digifone.” (p. 351)

…

“I have already held that the Glackin report was and remains relevant to the work of the tribunal and its terms of reference. It was published on the 1st July, 1993 and has now been in the public domain for some ten years. It is a document of record which is freely available to the members of the public who wish to purchase or peruse it.

Whilst accepting the need to balance the rights of the applicant, on the one hand, with the public interest, on the other, I have no doubt that the achievement of such a balance does not require or entitle the court to interfere with the exercise by the respondent of his discretion in this case.” (p. 352)

103. Next the learned judge turned to the alleged violation of fair procedures, which was rooted primarily in the Tribunal’s failure to notify the appellant that it intended to question witnesses on the contents of the Glackin Report. However, the learned judge noted that the opening statement of the second module provided express notice that the Tribunal intended to inquire,inter alia, into the question of whether or not the appellant had avoided the evaluation process and whether this was the result of any intervention on the part of Mr. Lowry. He was thus well aware that his apparent avoidance of the evaluation process would be the subject of the Tribunal’s inquiry. The appellant had the right to attend hearings, to examine and cross-examine witnesses, to make legal submissions, and more. What he was really contending for was advance notification of examinations or cross-examinations of witnesses where it was intended that there would be references to the Glackin Report, even though he had made no such request. The same would not be afforded to any persons or parties before the Tribunal. What the appellant was really seeking, therefore, was preferential treatment. However, fair procedures must apply equally, and thus the appellant was not entitled to the advanced notice which he sought. The learned judge moreover rejected the contention that a letter sent by the solicitor for the Tribunal to the appellant could be construed as an undertaking to provide the requested notice. Thus he found that there was no breach of the principles of natural justice or fair procedures, and refused the reliefs sought.

104. The judgment of the Supreme Court on appeal was delivered by Denham J. Dealing first with the relevance issue, the learned judge noted at p. 367 that “[t]he terms of reference given to the tribunal are wide ranging. This may be seen in the resolution of the Dáil and the Seanad, the relevant portion of which is set out above. It is primarily for the tribunal to interpret its terms of reference”. Her conclusion on the issue of the relevance of the Glackin Report was as follows:

“The context of the module was set out by the tribunal in the opening statement, which has been set out previously in this judgment. The tribunal is inquiring as to what were the true facts of ESAT’s financial position at and prior to the 16th May, 1996, as to how aware the department was of those facts and, if it was not aware, whether that was due to any intervention by Mr. Michael Lowry or to some other factor. It is also inquiring as to the true facts concerning the identity of the consortium, the true identity of the applicants, the true facts concerning the ownership of the ESAT Digifone consortium and the state of knowledge of the evaluators at relevant times.

In the context of such an inquiry, it is not unreasonable to determine that the former business transactions of the applicant are relevant to the inquiry as to whether the applicant avoided the evaluation process and as to whether this was the result of any influence by Mr. Michael Lowry. The Glackin report is a report of an investigation into former business dealings of the applicant. It is a public document. It is not unreasonable to consider it relevant to the work of the tribunal. The decision that this public document not be excluded is not a decision so unbalanced or unreasonable as to require intervention by a court. Further, the decision is not disproportionate in the context of the inquiry to the interests of the applicant. I would uphold the findings of the High Court on this aspect of the appeal.” (p. 368)

105. In respect of the alleged breach of fair procedures, the learned judge held that:

“I am satisfied that there is no necessity for the tribunal to give notice to the applicant of any intended reference to the Glackin report either in submissions or in the examination of witnesses. The tribunal is entitled to refer to and permit references to the Glackin report, even though that report included findings negative to the applicant and the applicant disputes those findings. In the circumstances, the tribunal is not required to inform the applicant when references will be made to the Glackin report. In light of the nature of the Glackin report, a public document, the tribunal itself has not made a decision that so affects the rights of the applicant as to entitle him to notice in advance of such references.

In all the circumstances, the tribunal has not adopted procedures which prevent the applicant vindicating his rights. … [T]he applicant submitted that he was entitled to advance notice of references to the Glackin report. Such an approach would be to give to the applicant an advantage not given to others appearing before the tribunal.

A court has a duty to provide equal treatment for citizens of the State … [T]he tribunal should apply rules of constitutional justice equally. There must be equal treatment of all persons. The people who appear before the tribunal should be dealt with in essentially the same manner. Consequently, I am satisfied that the learned trial judge was correct to conclude that the applicant was not entitled to preference over other persons and I would uphold that finding.” (p. 369)

106. Denham J. then turned to address the appellant’s arguments in respect of protecting his good name. The right to privacy is not absolute and the Tribunal is an arena where free speech is of significant importance. She noted that that the issues in the case related to a public document, the Glackin Report, where the information is already in the public domain; as such, the appellant had an especially heavy burden to discharge to establish interference with the constitutional right to privacy, let alone a necessity to weigh that right against the exigencies of the common good. She concluded thus on this issue:

“However, the information in issue was already in a public document, the Glackin report, which has been the subject of considerable media coverage over recent years. Thus, the information was already in the public domain. I am satisfied that there was no interference with the constitutional right to privacy of the applicant and the issue of weighing that right against the exigencies of the common good does not arise for consideration. However, if it did, the rights of the applicant are not such as to curb the public inquiry established by the representatives of the people from their use of the Glackin report. To allow the applicant's right to his good name to prevail over freedom of speech in such a situation in the tribunal on this issue would be wholly disproportionate.” (pp. 371-372)

107. Finally, I would draw attention to the learned judge’s overall conclusion, which reads in the relevant part as follows:

“I have dealt with this appeal in some detail. However, fundamentally it is a simple case, arising on a single issue, the Glackin report. There is a certain air of shadow boxing in this case. To challenge references to a public document by the tribunal was to assume an immense burden. For a court to exclude references to a public document by the tribunal and its counsel in questions or submissions, would be an extraordinary intrusion on the working of the tribunal which I would envisage arising only in wholly extraordinary circumstances. Such circumstances do not arise in this case. If, on the other hand, the applicant wished to contest the Glackin report that would be a matter for another arena. However, that is not an issue for the tribunal.

On the facts of this case, I am satisfied that the tribunal is investigating the award of the licence within its terms of reference. It is not unreasonable to have introduced the Glackin report into this module and, as such, it is notultra viresthe terms of reference of the tribunal. There was no necessity, under the requirement for fair procedures or by reason of any actions of the tribunal, for the tribunal to give to the applicant advance notice of the questioning of witnesses on the Glackin report.” (pp. 372-373)

108. This issue must be decided against the backdrop of the very high measure of discretion afforded to tribunals of inquiry in respect of the way that they conduct their proceedings (see, for example,Flood v. Lawlor, Bailey v. FloodandO’Callaghan v. Mahon). Like Dunne J., I cannot but endorse what was said by Denham J. in the Supreme Court: it was truly to assume an enormous burden to try to prevent a tribunal of inquiry from making references to a public document in the manner which it did. The learned judge spoke of such being permissible only in “wholly extraordinary circumstances.” Even if there had been no errors or omissions in the averments in question, I do not believe that either the High Court or this Court would have taken the view that such extraordinary circumstances existed and that it would therefore have been appropriate for the Tribunal to exclude any references from being made to the Glackin Report. Even accounting for the true position in respect of the legal advices concerning that report, I find it difficult to accept that the courts would not nonetheless have come to the same conclusion concerning the relevance of the report to the activities of the Tribunal. This is so based on the public nature of the Glackin Report, the express terms of reference of the Tribunal and the high level of deference which tribunals are accorded in carrying out their important public functions. Accordingly, it cannot be said that the allegedly untrue, inaccurate and misleading statements at issue were such as to affect the judgments in the 2003 proceedings in a fundamental way.

Setting Aside a Prior Judgment on the Basis of Alleged Breach of Constitutional Rights and/or Fair Procedures
109. The appellant has a second, free-standing basis upon which he alleges that the judgments in the 2003 proceedings may be set aside: it is that there is a jurisdiction to set aside a prior judgment where there has been a breach of the constitutional rights of a party, or there has been a fundamental breach of fair procedures. The appellant’s and the respondent’s arguments in relation to this ground have been set out above (paras. 46-47 and para. 55, respectively). As is apparent, it is the respondent’s contention that if such jurisdiction exists, it is restricted to circumstances where there was a breach of constitutional rights or want of fair procedureson the part of the court itself. This was also the conclusion reached by Dunne J. in the High Court. The issue for this Court on appeal is whether the jurisdiction should be so confined. If not, it will be necessary to look to the alleged breaches of constitutional rights and fair procedures in this case. If the jurisdiction is so confined, then the appellant’s case must fail, as he is not alleging a breach of rights or of fair procedures by the courts whose judgments he is seeking to have set aside.

110. Whereas the jurisdiction to set aside a prior judgment for fraud is reasonably well-established, the existence of a jurisdiction to set aside for a breach of fair procedures and/or constitutional rights, at least in the manner claimed by the appellant, is less certain. As noted above, the appellant relies on the jurisprudence of this Court, includingRe Greendale Developments (No. 3), L.P. v. M.P.,and Bula v. Tara Mines (No. 6).Accordingly, it is necessary to analyse these cases in order to determine whether this jurisdiction to set aside for breach of fair procedures/constitutional rights is as broad as the appellant suggests it is.

111. InRe Greendale Developments (No. 3),the applicants had appealed to the Supreme Court against a judgment and order of the High Court. In addition to serving a notice of appeal, the applicants brought a motion for liberty to adduce further evidence. It was decided that both matters should be heard together. The Supreme Court said that it would deal first with the motion. Following four days of submissions, the Court reserved judgment. When it gave judgment, it dealt with both the motion and the appeal: the Court refused the relief sought in the notice of motion and dismissed the substantive appeal. The first applicant then brought an application seeking an order setting aside or vacating the judgment of the Supreme Court on the grounds that the substantive issue was determined by the Court without affording the applicants any proper opportunity to argue it or to raise the substantive points of law arising on the appeal. The respondent contested this and submitted that the entire appeal was fully argued. What are relevant for present purposes are the statements made by members of this Court in relation to the Court’s jurisdiction to set aside a final order. Per Denham J., at p. 542 of the report:

“The Supreme Court has jurisdiction and a duty to protect constitutional rights. This jurisdiction may arise even if there has been what appears to have been a final order. However, it will only arise in exceptional circumstances. The burden on the applicants to establish that exceptional circumstances exist is heavy.

The second issue for determination is whether the applicant has successfully invoked this special jurisdiction. The court has a duty to protect constitutional rights, including fair procedures, in its own court. This inherent jurisdiction arises in exceptional cases to protect constitutional rights and justice. The applicants in this case have not discharged the burden of proof required to establish that the order of the court was constitutionally impinged by, as alleged, an absence of fair procedures.”

The learned judge continued as follows at pp. 544-545:

“[I]t is only in most exceptional circumstances that this jurisdiction arises. The jurisdiction will only be exercised when a constitutional right or justice lies to be protected. The jurisdiction will arise only to protect constitutional rights. The jurisdiction will not arise, in general, if facts are in issue - unless the situation is an exception,

e.g.

order obtained by fraud. Even then, the court may exercise its jurisdiction in a particular manner involving another jurisdiction. The jurisdiction would not arise if the constitutional right could be protected in another way.

The Supreme Court has a jurisdiction to protect constitutional rights and justice. This jurisdiction extends to an inherent duty to protect constitutional justice even in a case where there has been what appears to be a final judgment and order. A very heavy onus rests on a person seeking to have such jurisdiction exercised. It would only be in most exceptional circumstances that the Supreme Court would consider whether a final judgment or order should be rescinded or varied. Such a jurisdiction is dictated by the necessity of justice. A case will only be reopened where, through no fault of the party, he or she has been subject to a breach of constitutional rights.”

112. Similarly, at pp. 545-546, Barron J. stated as follows:

“As the Chief Justice has said, [Article 34.4.6°, now Article 34.5.6°, stating that “[t]he decision of the Supreme Court shall in all cases be final and conclusive”] is in recognition of the desire of public policy for a finality in proceedings

inter partes

expressed in clear and unambiguous terms. Nevertheless, he allows that there may be circumstances, though not in this case, which might justify disregarding such provision.

Nevertheless where such circumstances exist, this court must be free to so declare and to indicate the procedures whereby such circumstances should be investigated. Not to be able to do so would conflict with the guarantee of fair procedures enshrined in the Constitution.

The Constitution requires the decisions of this court to be final and conclusive for good reason. There must be certainty in the administration of justice. Uncertainty can lead to injustice. In my view, these provisions must prevail unless there has been a clear breach of the principles of natural justice to which the applicant has not acquiesced and such that a failure to take steps to remedy such breach would, in the eyes of right-minded citizens damage the authority of this court. I believe that the jurisprudence of this court has always been to this effect.”

113. The case ofBula v. Tara Mines (No. 6)is well known. The applicants appealed a decision of the High Court to the Supreme Court. The appeal was heard and dismissed by a Court consisting of Hamilton C.J. and Barrington and Keane JJ. The applicants subsequently applied to have the judgment of the Supreme Court set aside on grounds of objective bias, alleging that both Barrington J. and Keane J. (as he then was) had links with the respondents (arising out of legal services rendered by each judge to certain of the respondents prior to their appointment to the bench) which were of such a character as to give rise to a perception of bias.

114. In the course of her judgment, Denham J. affirmed that this Court has an inherent jurisdiction to protect constitutional rights and justice; that this may on occasion apply to an application in relation to a final order of this Court; and that such jurisdiction arises only in rare and exceptional cases, where a clear case has been established for it to be invoked, and where a clear breach of a constitutional right or justice is at issue (p. 438). In her judgment, McGuinness J. quoted with approval the above extracts fromRe Greendale Developments (No. 3)and concluded that:

“In summary, whilst very great weight must be given to the principle of finality and to the provisions of Article 34.4.6° [now Article 34.5.6°], this court has a jurisdiction to review and if necessary to set aside what appears to have been a final order in circumstances where the court’s duty to protect constitutional rights or natural justice arises. Such circumstances can only be to a high degree exceptional, and a very heavy onus lies on the applicants to establish that such exceptional circumstances exist.” (p. 478)

On the facts of the case, both judges were satisfied to dismiss the application and refuse the relief sought.

115. The facts ofL.P. v. M.P.are comprehensively set out in the head note in the Irish Reports. The respondent appealed an order of the Circuit Court to the High Court regarding,inter alia,the custody and maintenance of his children. Section 39 of the Courts of Justice Act 1936 (“the 1936 Act”), as re-enacted by section 48(1) of the Courts (Supplemental Provisions) Act 1961, provides that “[t]he decision of the High Court or of the High Court on Circuit on an appeal under this Part of this Act shall be final and conclusive and not appealable.” After certain remarks were made by the High Court Judge, counsel for the respondent asked the High Court Judge to vary the Circuit Court order concerning the custody of the children as agreed between the parties but to disqualify himself from hearing the maintenance issue. The respondent did not call evidence regarding the maintenance issue. The High Court Judge did not disqualify himself and varied, by consent, the order of the Circuit Court concerning the custody of the children but affirmed the maintenance order. The respondent appealed to the Supreme Court seeking to have the High Court order set aside and a re-hearing ordered. He argued,inter alia, that the High Court Judge had pre-judged the maintenance issue, that the decision of the High Court was not a decision within the meaning of section 39 of the 1936 Act, and that the refusal of the High Court Judge to discharge himself was not governed by the 1936 Act.

116. Murray J., as he then was, referred in his judgment to the decisions of this Court inGreendale (No. 3)andBula (No. 6).He was satisfied that such decisions establish that a final order may be rescinded or varied where a party discharges the burden of establishing that there are exceptional circumstances showing that such a remedy is necessitated by the interests of constitutional justice. He continued as follows:

“It follows from the foregoing judgments that the courts have an inherent jurisdiction to amend or set aside a final order in exceptional circumstances where those circumstances clearly establish that there has been a fundamental denial of justice through no fault of the parties concerned and where no other remedy, such as an appeal, is available to those parties. Since the court is not in this case concerned with the merits of the contention made on behalf of the respondent that there was such a denial of justice in this case, I do not propose to consider further the criteria according to which such a jurisdiction may be involved. I would, however, just add that such exceptional circumstances could not include rulings made in final instance by a court concerning such matters as the admissibility in evidence, even if they have implications for the manner in which a party was allowed to present its case. Rulings on questions of law and procedure are matters for judicial appreciation and discretion which are inherent in judicial proceedings and are properly governed by the principle of finality in courts of last instance. Otherwise, I confine myself to saying that the exceptional circumstances which could give rise to the inherent jurisdiction of the court must constitute something extraneous going to the very root of the fair and constitutional administration of justice.” (pp. 229-230)

Ultimately, Murray J. dismissed the appeal on the grounds that this Court did not have jurisdiction to entertain it.

117. The appellant accepts that the claims advanced in each of the above cases related to how the courts themselves had acted in the course of the proceedings. However, he maintains that the statements of principle contained therein are not limited to such circumstances. He claims that the basis for this jurisdiction is the necessity to do justice and protect constitutional rights, in circumstances where there has been a fundamental denial of justice through no fault of the parties concerned. A breach of constitutional rights of the kind that would justify setting aside a final judgment or order may be occasioned by the wrongful conduct of another party to the proceedings which affects in a fundamental way the manner in which the court reaches it conclusion. This, it is said, is what happened here: the respondent’s agent, in putting forward misleading, untrue and inaccurate evidence, fundamentally undermined the fairness of the 2003 proceedings. Thus, he says, there was a fundamental breach of fair procedures of the kind that would justify the exercise by this Court of the exceptional jurisdiction to set aside the final judgments and orders in those proceedings.

118. Based on the above-quoted passages fromRe Greendale Developments (No. 3), L.P v. M.P.,andBula v. Tara Mines (No. 6),there clearly exists a jurisdiction to set aside a final judgment and order for breach of fair procedures. InL.P. v. M.P.,Murray C.J. referred to “a fundamental denial of justice” and the need for exceptional circumstances “going to the very root of the fair and constitutional administration of justice”. The same is manifestly a high threshold to reach. Does such jurisdiction extend to a breach of fair procedures by a party to the proceedings, rather than by the decision-maker adjudicating thereon? It should be noted, first, that “fair procedures” as a legal concept is not typically concerned with the conduct of another party to the proceedings. Instead “fair procedures”, certainly as understood as a branch of administrative law, relates to the conduct of the decision-making body tasked with adjudicating the complaint, be it a tribunal, court, Minister, public authority or otherwise. Here, of course, the case being made by the appellant is somewhat confusing at first glance, for he is complaining of a breach of fair procedures by a tribunal of inquiry; however, the breach in question stems from the allegedly misleading/untrue allegations and omissions in the affidavit of Mr Davis made during the judicial review proceedings, and thus it is clear that the appellant’s point concerning fair procedures relates to the conduct of the respondentqualitigant in the 2003 proceedings, rather than in the discharge of his role as sole member of the Tribunal.

119. Thus it is helpful to remember that the complaint made relates to an alleged breach of fair procedures by a defendant in High Court (and, subsequently, Supreme Court) proceedings. That, in my view, is a rather novel approach to the idea of fair procedures. “Fair procedures” is in some respects an amorphous concept, and the precise breadth of its reach and the extent of its guarantees may vary from context to context, as justice demands. However, some principles are invariably included: a decision-maker must not be biased (nemo iudex in causa sua); no one should be judged without being given the best possible chance to put his side of the case (audi alteram partem); a decision-maker may be required to give adequate reasons for their decisions; unwarranted discrimination in procedure may also be open to challenge. Fair procedures may require that persons be informed of any charges made against them, that they have an opportunity to call witnesses, give evidence, and cross-examine witnesses against them, and that they have legal representation. This does not purport to be an exhaustive list by any means. However, what these and associated rules have in common is that they are concerned with the conduct and fairness of the proceedings and of the decision-maker. It is telling that the respondent has not pointed to any case, even outside of the context of the set aside jurisdiction, where there was an established “breach of fair procedures” by a party to the proceedings rather than by the decision-making body itself.

120. It is also worth noting that the alleged breach of fair procedures at issue is based on precisely the same conduct that underlies the claim of fraud. Indeed, it is clear from paragraph 40 of the Statement of Claim that this is an alternative argument: “In the alternative, the Plaintiff pleads that the failure by the Defendant to make disclosure of the aforesaid material and matters amounted to a fundamental breach of principles of fair procedures which went to the heart of the evidence led by or on his behalf before [the High Court] and the Supreme Court.” The particulars underlying this claim are the same as those pleaded in respect of the fraud claim. The appellant declined to provide further particularisation or clarification of the alleged breach of fair procedures when so requested in the Notice for Particulars. Given the premium placed on the finality of litigation, and the rarity of the exceptions thereto – of which fraud is one – it would seem unusual if the very conduct which is insufficient to satisfy the above-discussed high threshold for fraud could suffice to set aside a final judgment by the back door under the guise of a breach of “fair procedures”.

121. The focus of the appellant’s arguments is on the actions of the other party to the proceedings. If his submissions on this ground are correct, to give untrue evidence (even if not dishonestly) would amount to a breach of the constitutional rights of the opposing party. Viewed another way, his submission is tantamount to asserting that there is a constitutional right to a correct result, or at least not to get the wrong result by virtue of false and misleading (but not dishonest) evidence. He argues that the respondent brought about an unjust result, amounting to a breach of his constitutional rights, by persuading the courts in the 2003 proceedings to accept inaccurate evidence. However, to accede to such line of argument would be a short distance from accepting that any decision could be re-opened on the basis that it was based on the wrong evidence. This could not be the proper position. The only way to avoid such a result would be to confine the right to re-open (where what is at issue is the conduct of the other party to the proceedings) to cases involving fraud, which simply leads back to the traditional formulation as set out inKenny etc.

122. It is against this background that the appellant’s claim of a breach of fair procedures falls to be considered. He argues that the statements of principle inRe Greendale Developments (No. 3), L.P v. M.P.andBula v. Tara Mines (No. 6)are not confined to breach of fair procedures by the court hearing the case, and extend instead to breaches by a party to the proceedings. However, in light of the above considerations, I have come to the conclusion that the jurisdiction at issue must be confined to breaches of fair procedures by the decision-maker itself,i.e.,by the court. The statements of principle do not say as much explicitly but then I do not believe that it was necessary to do so; it is inherent in the concept of a breach of fair procedures that it is the conduct of the decision-making body which is at issue. Accordingly, I do not believe that the learned High Court judge committed any error in this regard. As it is not suggested that there was any lack of fair procedures or breach of constitutional rights by the High Court or by this Court during the 2003 proceedings, the appellant’s claim on this ground must fail.

Conclusion
123. The first issue raised on this appeal concerns the quality or degree of fraud that must be alleged in order to set aside a final judgment on the basis of fraud. For the reasons above, I have concluded that Dunne J. correctly applied the case ofKenny v. Trinity College, in that a plaintiff must allege deliberate and purposeful dishonesty in order for this exceptional jurisdiction to be invoked. Recklessness as to the truth or falsity of one’s statements is insufficient. Moreover, I have also reached the conclusion that the alleged erroneous statements and omissions in question were not such as to affect the judgments in the 2003 proceedings in a fundamental way. The second major legal issue on the appeal asked whether a judgment may be set aside for a breach of fair procedures by another party to the proceedings; though clearly there exists a jurisdiction to set aside for breach of fair procedures on the part of the court or tribunal hearing the proceedings, I have formed the view that such jurisdiction cannot be extended in the manner urged by the appellant so as to cover so-called breaches of fair procedures by the other party. I would therefore uphold the decision of the High Court on this point also.

124. Accordingly, I would dismiss the appeal.

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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Desmond v Moriarty [2018] IESC 34 (27 July 2018) URL: http://www.bailii.org/ie/cases/IESC/2018/S34.html Cite as: [2018] IESC 34

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