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THE SUPREME COURT
Record No. 367/05 Murray C.J.
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
BETWEEN/
HIS HONOUR JUDGE ALAN P. MAHON,
HER HONOUR JUDGE MARY FAHERTY
AND HIS HONOUR JUDGE GERALD B. KEYS
(MEMBERS OF THE TRIBUNAL OF INQUIRY
INTO CERTAIN PLANNING MATTERS
AND PAYMENTS)
Plaintiffs/Appellants
and
POST PUBLICATIONS LIMITED
TRADING AS THE SUNDAY BUSINESS POST
Defendant/Respondent
JUDGMENT of Mr. Justice Geoghegan delivered the 29th day of March 2007
This is an appeal by the above-named appellants (hereinafter referred to as “the Tribunal”) against an order of the High Court (Kelly J.) refusing certain alternative injunctions against the above-named respondent (hereinafter referred to as “Post Publications”) prohibiting the publication of what the Tribunal considers to be certain confidential documentation and information emanating from it.
The proceedings had been commenced with a plenary summons and contemporaneously an application was made to the High Court for interim injunctions in the form of the alternative injunctions to which I have referred. In fact Finnegan P. who heard the application granted both interim injunctions. The consequential motion seeking interlocutory injunctions in the same form was ultimately adjourned from time to time with the interim injunctions remaining in place. In the meantime, various affidavits were exchanged and ultimately by agreement the hearing of the interlocutory motion was treated as the trial of the action. Kelly J., therefore, determined the issues on foot of affidavits and exhibits and without oral evidence. I will return later to the reasons why the reliefs were refused.
So that there can be a proper understanding of the nature of the issues on this appeal and how they arise, I think it essential that I review in some detail the various affidavits filed.
The first and most important is the affidavit of Marcelle Gribbin, solicitor attached to the Tribunal grounding the original application for the interim injunctions and sworn on the 17th December, 2004. In the introductory part, she explains the general nature of the Tribunal which was established pursuant to respective resolutions passed by Dáil Éireann and Seanad Éireann in 1997 and which had the powers conferred on it by the Tribunals of Inquiry (Evidence) Act, 1921, as amended. The Tribunal was set up to investigate alleged corruption in the planning process. She goes on to give details of the ownership of the Sunday Business Post which is owned by Post Publications and which in turn is a subsidiary of Thomas Crosbie (Holdings) Limited the publisher of the Examiner Newspaper in Cork.
Ms. Gribbin goes on to explain that at a public hearing of the Tribunal on the 14th January, 1998 a protocol in the following terms was announced by the then Sole Member.
“I fully appreciate concerns which persons wishing to assist the Tribunal may have in relation to the issues of personal and commercial confidentiality. In order to protect these legitimate concerns I propose to adopt the following protocol in regard to documents:-
(i) All original documents will be returned to their owners after the Tribunal has concluded its work.
(ii) All copies of documents with confidential, commercially sensitive or personal information will be destroyed after the conclusion of the inquiry.
(iii) All documents will be stored in a secure location.
(iv) Confidential information not relevant to the inquiry will not be disclosed to any outside party. The only parties who will have access to such documents will be the Chairman and the legal team to the Tribunal.
(v) Documents, which contain both confidential, personal or commercially sensitive information not relevant to the inquiry, or other information, which is relevant, will have the irrelevant information blanked out.
(vi) Counsel for the Tribunal will be willing at all times to discuss any concerns any person may have concerning confidential, personal or commercially sensitive information.”
In paragraph 7 of the affidavit the deponent explains that since it was established the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information which according to her has significantly delayed the Tribunal’s work.
I need to pause here because one of the problems in this case and indeed it is a problem to which the learned High Court judge attached considerable significance is what exactly the Tribunal rightly or wrongly regards as “confidential information”. As I understand the case being made, it is not confined to documents furnished by persons at its investigative stage with an express stipulation as to confidentiality in the event of their not being considered relevant to be produced at the oral hearing. In order to explain what the Tribunal means by the expression for the purposes of this appeal it is necessary to explain the context in which it arises. The Tribunal at its investigative stage gathers in all kinds of documentation and information which it may or may not find necessary to use for the purposes of the oral hearing and, therefore, for the purposes of the findings of the Tribunal. Ideally from the point of view of persons who give the Tribunal such documentation or information it would not be furnished to any outsiders by the Tribunal unless and until it was produced at the oral hearing. Having regard however to re Haughey [1971] IR 217 the Tribunal is under a constitutional obligation to give reasonable advance notice to a third party whose reputation may be put in question by evidence given by a witness at the Tribunal. Accordingly, the Tribunal has devised a system of sending out a brief to each person who might potentially be damaged by evidence at a forthcoming public hearing. The brief contains documentation including for instance another witness’s statement which would, effectively, put that person under notice as to what is going to be said in relation to him or her at the Tribunal. When carrying out this practice the Tribunal makes it clear that the “brief” is confidential. The learned trial judge correctly points out that the “brief” may contain documents with information which is in the public domain at any rate as for instance a Companies Act search. Therefore, he concludes that the injunctions sought (the terms of which I will be setting out later) are much too wide and essentially that is the basis on which the reliefs were refused. While I do not know exactly what was said in the High Court, I am satisfied from the submissions made in this court and also as a matter of inference from the affidavits which I will be fully reviewing that although, undoubtedly, the Tribunal is not confining its confidentiality policy to documents in respect of which it has already promised confidentiality to some person it nevertheless is not intending to extend it to documents that are in the public domain or contain information in the public domain. What it does require however is that it not be disclosed that such public document or document containing such public information is in fact included in the “brief” because of course that is quite a different matter. It may produce context which implicates adversely some person and which if published in advance of an oral hearing could be very damaging. After that diversion, I now intend to return to Ms. Gribbin’s affidavit.
Paragraph 7 reads as follows:
“Since it was established, the Tribunal has experienced considerable difficulties in respect of the unauthorised disclosure of confidential information, which has significantly delayed the Tribunal’s work. The Tribunal believes that such unauthorised disclosures are deliberate, are made by or on behalf of persons who have been or who are likely to be called to give evidence to the Tribunal and are intended to undermine and delay the Tribunal in its work. As a result of one such disclosure the then Sole Member wrote to the editors of a number of newspapers, including the Sunday Business Post, on the 10th December, 1998, expressing his concerns ‘following the continuing publication in the print media of confidential material provided to the Tribunal and circularised by the Tribunal on a strictly confidential basis. It is apparent that past publication of material has taken place, notwithstanding that the publishers were or ought to have been aware of the strictly confidential nature of the documentation which has been published without the authority of the Tribunal.’ The Sole Member also noted in that letter that he had received a number of complaints from individuals whose rights they claimed had been infringed by the unauthorised publication of the Tribunal’s documentation and information. Some of the complainants had indicated that their desire to assist the Tribunal was limited by their fear that confidential information disclosed by them would end up in the newspapers. A letter in similar terms to that sent to the Sunday Business Post was written to the editor of the Examiner.”
Both letters as referred to in that paragraph were exhibited. In each letter, the respective editors were required not later than twelve noon on Friday, 11th December, 1998 to undertake in writing to the Tribunal that they would not publish in any form any confidential material which had been provided to the Tribunal or which had been circularised to others in confidence by the Tribunal. Ms. Gribbin then refers to a series of leaks to different organs of the media and to consequent distressed complaints from persons the subject matter of the stories connected with the leaks. In general, despite the very extensive garda investigation at one stage at least four journalists interviewed declined to answer relevant questions or reveal their sources of information. The deponent then describes how in January, 2001, the Sunday Business Post and other newspapers again published confidential tribunal material. This gave rise to a public statement made by the then Sole Member. That particular statement mainly related to documents which had been furnished confidentially by the Tribunal to financial institutions seeking information but had come into the hands of media outlets. Only one of the newspapers gave an undertaking not to publish in future. The Sole Member in the public statement made it clear that he believed that such unauthorised publication of confidential material may hinder or obstruct the Tribunal in its work and may prove to be a disincentive to persons who had otherwise readily cooperated with the Tribunal’s investigation. It also went on to state that the unauthorised publication of the confidential information had “understandably, caused significant distress to persons named in the article”. The second last paragraph in the public statement reads as follows:
“I earnestly ask the media not to publish or disseminate information which is confidential to the Tribunal and I want to make it clear to all concerned that I will not hesitate to use such options as are available to me, whether by way of application to the High Court by way of complaint to the DPP or otherwise to restrain any improper disclosure of information confidential to the Tribunal.”
That public statement was delivered as far back as 24th January, 2001.
Three years before that on the 18th December 1998, the Sole Member had issued a statement to all the principal media outlets. That statement is exhibited in the affidavit. The following is a quotation from paragraph 5 of that document.
“The preparation of a report and the making of recommendations based on the facts established at such public hearing.
This Tribunal is currently carrying out a preliminary investigation in private in relation to certain aspects of its work. The Supreme Court in the recent Haughey case, at page 122 of the transcript, has made clear that if the inquiry worked during the preliminary investigation stage … were to be held in public it would be in breach of fair procedures because many of the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably encroach on the constitutional rights of the person or persons affected thereby.”
After going on to explain the function of the Tribunal in the same paragraph there is then a heading “Confidential Information” and that paragraph reads as follows:
“It is essential to the proper functioning of this phase of the work of this inquiry that, where appropriate, the confidential nature of inquiries being made and the confidential nature of information and documentation coming into possession of the Tribunal be respected. This Tribunal, in common with past tribunals of inquiry, took the step of publishing at a public sitting a protocol detailing the manner in which the Tribunal would treat confidential information and documentation. The Tribunal considers all documentation and information concerning its inquiry work, whether emanating from or received by the Tribunal as confidential information. The Tribunal also considers that any such documentation or information is generally confidential in nature, as well as the fact of having been communicated in circumstances importing an obligation of confidence.”
In paragraph 12 of the affidavit the deponent refers in detail to a specific complaint by the Tribunal against the Sunday Business Post. The solicitor for the newspaper and the author of the article, Mr. Frank Connolly, were written to. Part of the letter read as follows:
“… your clients’ article appears to have been based on the document or documents compiled from a series of letters written to a financial institution by the Tribunal. These letters were written by the Tribunal as part of its preliminary investigations in private (which are not yet completed) and were expressed to be so in the body of the letter. Each of the letters was headed ‘strictly private and confidential – to be opened by addressee only’. The information contained in the letters remains confidential to the Tribunal whether contained in the letters themselves or in a document compiled from the letters. This would undoubtedly have been readily apparent to your client. Your clients are undoubtedly aware of the importance of the Tribunal’s preliminary investigations in private. Your clients’ publication constitutes a very serious infringement of the confidentiality of the Tribunal. It could seriously damage the work of the Tribunal. It could cause damage to the reputations of persons whose interest may be affected by the work of the Tribunal. The Sole Member would expect that persons who came into possession of confidential information of the Tribunal would seek to uphold the confidentiality thereof rather than to expand the breach of confidence. The Sole Member requires that in future your clients maintain the confidentiality of the Tribunal. Meanwhile, the Sole Member will take such steps as he considers appropriate to protect the work of the Tribunal.”
Ms. Gribbin goes on to refer to another incident of unauthorised publication by the Sunday Business Post. This was on the 17th October, 2004 when the paper published an article written by one Barry O’Kelly entitled “Jim Kennedy’s pipedream”. She describes how a further article appeared on that day entitled “Fifty Councillors named in new Tribunal list”. She then deposes to her belief that confidential tribunal documents form the basis of those articles. She explains how a number of documents in connection with a module known as the “Coolamber” module had been circulated to a limited number of parties on the 6th October, 2004. Some further documents in connection with the same module were circulated later in the same month. Public hearings in that module did not commence until the 7th December, 2004. The Tribunal’s letter accompanying the documentation included a specific direction of confidentiality. The document was not to be disclosed to any person other than the legal advisor who is to be likewise restrained from disclosing the contents. A further article headed “Lenihan, Flynn in new payments revelations” written by the same Barry O’Kelly was published in the Sunday Business Post on the 24th October, 2004. This article, according to the deponent, included extracts from a confidential statement furnished to the Tribunal by a Mr. Jude Campion. Accompanying that article was a photograph of an extract from the statement which clearly displayed the Tribunal’s date stamp and the words “confidential” printed thereon. Mr. O’Kelly was asked to furnish the source or sources of his information and materials be refused.
Ms. Gribbin then goes on to explain that as on previous occasions a number of complaints were received by the Tribunal about these disclosures. Two passages from one such complaint are set out in the affidavit and are worth quoting. The first read as follows:
“It is very clear that Mr. O’Kelly, the journalist, had access to considerable amount of information which, it would appear can only have emanated originally from the Tribunal.”
The letter continued:
“We appreciate that the leaking of information such as this is extremely difficult for any tribunal to control and we trust that appropriate measures will be taken to investigate its provenance and steps taken to reprimand the perpetrators.”
Yet another complaint was couched in these terms:
“It is a matter of serious concern to my client as it is to members of the Tribunal that confidential information should be made public in this most public of ways. We have had correspondence in relation to issues such as this before and the views expressed at that time apply equally to this situation.”
Nor was the Tribunal able to obtain the return of the copy of the Jude Campion statement that fell into the hands of the Sunday Business Post. In a letter form the paper’s solicitors, it was made clear that the source of the information would not be disclosed nor would any documentation or other material that came into possession of the paper. The Tribunal was informed indeed that even the return of documentation could identify the source and in those circumstances that they would undertake to destroy the documentation. The Tribunal sent an urgent fax directing that the documentation was not to be destroyed. No response was received from the paper or the solicitors. The Tribunal wrote again seeking the return of the copy of Mr. Campion’s statement and requiring an undertaking that no confidential tribunal documents or their contents would be published until after such document or its contents had been disclosed at a public sitting of the Tribunal. The Tribunal informed the solicitors that it was not at that time insisting that the source of the documentation be disclosed but reserved its right to do so if the document was not returned and the undertaking not given. That elicited a letter from the solicitors for the paper stating that the documentation concerned had been destroyed and making it clear that it was to protect the identity of the source that the document was destroyed. The Tribunal wrote an indignant letter in reply and also sought undertakings for the future which were refused. The solicitors made it clear that they were not involved in the destruction of the documents but were informed that it had happened. Mr. O’Kelly, the journalist, formally confirmed to the Tribunal that he had destroyed the documents. Mr. Anthony Dinan, on behalf of Post Publications Limited was asked to give an undertaking “that any documents or any contents thereof issued or circulated in confidence by the Tribunal will not henceforth be published by your clients or either of them unless such documents or its contents have been disclosed at a public sitting of the Tribunal”. Ms. Gribbin explained that Mr. Dinan refused to give such undertaking which refusal was confirmed in a formal letter to the Tribunal. After that Mr. O’Kelly when recalled to give evidence again refused to disclose his sources. An alternative undertaking to be given by Mr. Dinan was then suggested by the Tribunal, this was to take the form “that the Sunday Business Post will not publish information or reproduce documentation in relation to which it is aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at the public hearing or as otherwise directed.” That undertaking was also formally refused.
Essentially, these are the background circumstances in which the Tribunal in its original affidavit looked for injunctions. The two interim injunctions read as follows:
1. An injunction restraining the defendant, its servants or agents (and all other persons having knowledge of the granting of the order herein) from publishing or using information or reproducing any document (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has directed that such information or documentation should remain confidential until disclosed at public hearing of the Tribunal or as otherwise directed by the Tribunal.
2. An injunction restraining the defendant, its servants or agents from publishing or using information or reproducing any documents (or any part thereof) or the contents thereof in relation to which the defendant, its servants or agents are aware that the Tribunal has circulated on a confidential basis to any party or witness to the Tribunal.
(a) Before such information and/or the contents of such documents has been disclosed or read at a public hearing of the Tribunal or
(b) until the Tribunal has given express permission for the publication, use or exploitation of such information.
As I will be explaining in more detail later on in this judgment, the learned High Court judge was, at all material times, concerned about the scope of each of these injunctions which in the end he held to be too wide having regard to the generally accepted principles of freedom of the press referred to both in the Constitution and the European Convention of Human Rights. The judge did indicate that he might re-list the matter before giving judgment with a view to receiving submissions as to the wording of a possible narrower injunction. In the event, he did not adopt this latter course but refused the relief mainly on the ground that what was sought was too wide. At the hearing of this appeal, counsel for the Tribunal, Mr. Paul O’Higgins, S.C. proposed to this court a third alternative form of injunction with the following wording:
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof, forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing:-
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
Such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the documents so circulated.”
It is sufficient at this stage to state the options being put forward to the court by the Tribunal. I will return to them later on in the judgment for the purpose of considering whether the appeal should be allowed or not and, if so, what form of injunction would be appropriate.
I think it helpful at this stage to return to the affidavits. In reply to the affidavit of Marcelle Gribbin which I have already summarised an affidavit on behalf of Post Publications was sworn by Anthony Dinan, mentioned above, on the 21st January, 2004. The substance of the affidavit effectively commences in paragraph 4. In that paragraph, Mr. Dinan refers to the procedures of the Tribunal in relation to sending out briefs to interested parties in advance of a public hearing and he asserts that on many occasions, newspapers and other media organisations have published such alleged confidential information and he exhibits some examples. The last sentence in the paragraph, however, summarises the position taken by Post Publications. It reads:
“I say that it is not accepted that these matters are confidential or that any particular claim of confidentiality may be made in that regard by the Tribunal.”
The next paragraph is essentially a complaint that the Sunday Business Post has been picked out for proceedings after six years when no such proceedings had been brought against any other publication. I will skip over the next parts of the affidavit which are submissions of law. The next set of paragraphs are also argumentative in that they are attempting to justify an alleged principle that a journalist cannot be expected to reveal his sources. The affidavit then particularises some of the articles that were published which reveal names against whom allegations were made Mr. Dinan asserts a public interest in the disclosure of these documents but he also denies that they are confidential. As there is law as well as fact in these submissions, I will deal with this assertion at a later stage. Mr. Dinan’s affidavit can be legitimately criticised for containing more submissions of law than assertions of fact. Nevertheless, I intend to cite in full paragraph 13 as it does encapsulate the case made by Post Publications.
“13. I do not accept that documents can be described as or regarded as confidential simply because they are circulated by the Tribunal. This is the assumption underlying the application as it is set out that there is a fear that documents will be published which are in the process of being circulated to parties for the next module. I am not aware of the contents of any of these documents but I do not accept that the Tribunal can by a determination decree that these documents must all be regarded as confidential irrespective of their nature or content. I say that it is clear from a perusal of the evidence given in previous modules, which is reported widely by this and other newspapers, that various documents are circulated by the Tribunal in advance of a public hearing which cannot in any circumstances be regarded as confidential notwithstanding that they are contained in a tribunal brief. Documents are on a daily basis referred to during the course of the Tribunal and then exhibited on the screens and may or may not be read into the evidence entirely. Many of these documents are matters concerning companies or title documents particularly in respect of the Planning Tribunal, and these are documents which are widely available to the public through various public bodies such as the Land Registry. Various documents concerning the constitution of companies have been referred to during the course of the evidence which were contained in the circulated brief. These are also documents which cannot be deemed to be confidential or to ever have been confidential. Yet these documents were contained in the circulated brief and it is the contention of the Tribunal that these matters are confidential merely because the Tribunal so regard them. For example, in paragraph 38 of the grounding affidavit of Marcelle Gribbin it is set out that the Tribunal is in the process of circulating a large number of confidential documents including statements to witnesses in advance of the public hearing on evidence relating to a new module. It is set out that the circulation of such documents in confidence is accepted by a written warning to all concerned that the documents and the contents thereof shall not be disclosed to any person. If this warning is in fact given with all documents which are circulated, which appears to be the case, then this of itself makes a nonsense of the basis for the allege confidentiality.”
The next few paragraphs of the affidavit are also taken up with argument mostly to the effect that the injunctions sought are too wide and too uncertain.
Ms. Gribbin replied to Mr. Dinan’s affidavit by a further affidavit of her own sworn on the 2nd February, 2005. The opening paragraphs mainly deal with refuting the suggestion that there was delay on the part of the Tribunal in asserting its complaints and pointing out the actions which the Tribunal had taken to prevent leaks including contact with the gardaí etc. Paragraphs 6 and 7 of this affidavit are important and are worth citing in full. They read as follows:
“6. I beg to refer to paragraphs 4, 7 and 13 of the affidavit of Mr. Anthony Dinan where he deals with the issue of confidentiality material. I say that the material forming the basis of the articles exhibited at exhibit A of the affidavit of Anthony Dinan was clearly confidential and had been circulated on a strictly confidential basis. I say that the Tribunal in the course of its private investigative work, which is mandated by statute, seeks statements from persons it is envisaged may be called as witnesses at the public hearing. I say that these statements and the contents of the brief circulated are confidential and remain so until they are opened at the public hearing.
7. It is accepted that documents such as copies of folios, company office searches and the like are not of themselves confidential documents. However, when such documents are circulated with and in the context of other documents including, in many cases, statements made by witnesses who will be called to give evidence to the Tribunal, all of the material in the folder circulated by the Tribunal are designated by the Tribunal to be confidential and are so named. Such documents are opened at a public sitting of the Tribunal. It is noteworthy that at no time that I am aware of has the defendant published details of a company office search without attempting to put the results of that search in context whether in relation to the names of the directors of the company, properties owned by the company, profits earned by the company or otherwise for commercial reasons.”
The next few paragraphs of the affidavit explain how the Tribunal’s policy is carried out in practice. When seeking narrative statements the Tribunal directs that they are confidential documents. A sample letter is exhibited. In the sample letter exhibited, the Tribunal requested a narrative statement and set out why such a statement was necessary namely, “…they will provide the Tribunal with a document which will be circulated in advance of your client’s evidence to those persons likely to be affected by his evidence so that they may have the opportunity, if they wish, to attend for the hearing of your client’s evidence and to cross-examine him or furnish rebuttal evidence.” The person is further informed “that the matters referred to above are the subject of the Tribunal’s confidential preliminary investigation. In due course some or all of these matters will come into the public domain at a hearing of the Tribunal. Until that time, you and your client are obliged to ensure the confidentiality of your dealings with the Tribunal.”
In paragraph 10 of her second affidavit, Ms. Gribbin, refers back to paragraph 36 of her previous affidavit and reiterates the point that “where documents are leaked in advance the Tribunal is not in a position to protect the constitutional rights of parties affected. In that regard the Tribunal is unable to effectively conduct its inquiries and effectively fulfil its statutory mandate.” She goes on to make the further point that “the leaking of such material acts as a disincentive to parties coming forward with information essential for the work of the Tribunal.” I think it important to quote in full also paragraph 12 of this second affidavit of Ms. Gribbin. The paragraph reads as follows:
“12. I say that the Tribunal has an obligation to conduct the hearings in which allegations are made against numerous parties in a fair and proper manner. In particular I say that the Tribunal is mindful at all times of the constitutional rights of the parties against whom allegations are being made and in particular their right to a good name. I say that the effect of the policy of confidentiality, when properly operated, is that allegations made against certain parties are made within the proper forum of public hearings, that the full context and circumstances surrounding those allegations are made known at one and the same time as those allegations and that the party against whom the allegation is being made is given the proper opportunity to respond to those allegations as soon as practicable. Further I say that the party against whom the allegations are being made is given the opportunity to test these allegations by means of cross-examination within a reasonable time of those allegations being aired in a public forum.”
I would particularly draw attention to the use of the expression “the policy of confidentiality”. What this case is all about, in my view, is whether that policy as such is legal or not. It obviously impedes to some extent freedom of the press but the question is, having regard to the right to protection of the good names of persons involved and in particular the constitutional protection of those rights is such limitation not just reasonable but appropriate? In relation to some of the specific articles referred to in Mr. Dinan’s affidavit, Ms. Gribbin explains that in the case of the “Jim Kennedy” and “fifty councillors” stories, these form part of the “Coolamber” module and that the Tribunal had determined that these matters were to be inquired into in public and the brief or pack in respect of it had been circulated to limited parties. This circulation was in October, 2004 whereas the public hearings did not commence until the 7th December, 2004. The “Lenihan Flynn” and “Former Tanáiste” articles were written in circumstances where the Tribunal had directed that the parties were not to be named as those individuals were not yet on notice of the contents of the relevant statements. Ms. Gribbin asserts that the identification of the parties by Post Publications was a decision taken by the newspaper “in clear contempt and in breach of the directions of the Tribunal”. Mr. Dinan, of course, had alleged that the publication was in the public interest for the very reason that the parties had not been identified. Ms. Gribbin, for the reasons underlying all the Tribunal’s decisions, asserts quite the opposite. She says that the Tribunal is unable to agree that publication was in the public interest at that time. The non-disclosure of the names was itself in the public interest as those individuals were unaware of the contents of the statement “and were not able to exercise their constitutional rights and in particular their right to a good name.” In paragraph 21, Ms. Gribbin makes it clear that the order sought by the Tribunal “only extends to circumstances where the defendant is aware that the Tribunal has directed that documents are confidential. The Tribunal is not seeking to prohibit the publication of all information about the Tribunal nor in circumstances where the paper is unaware of a direction of the Tribunal.”
I turn now to the judgment of Kelly J., the trial judge. Having outlined the relevant evidence, he set out his “conclusions on the evidence”.
“1. In carrying out its functions the Tribunal has obtained information from third parties relevant to its inquiries.
2. Such information may consist of documents or statements.
3. When seeking narrative statements the Tribunal expressly represents that they will remain confidential until they come into the public domain at a hearing of the Tribunal. Until that time they will remain confidential.
4. In so far as documentary material is concerned it is subject to the protocol of the 14th January, 1998, which I have already set forth in this judgment.
5. On receipt of all of this information the Tribunal then collates and circulates all relevant documents (including the narrative statements of evidence of persons whom it proposes to call as witnesses at the public hearing at which such evidence will be tendered). This forms what has been referred to as a ‘brief’.
6. The circulation of such a brief is made to a limited number of persons in advance of the public hearing. In general these persons consist of those whose good name or reputation might be adversely affected if evidence of the type outlined in the narrative statements were to be given in public. This procedure is embarked upon with a view to giving such persons notice of the allegations so as to enable them to take whatever steps they believe appropriate in order to vindicate their reputations.
7. At the time when the brief material is circulated to this limited number of persons all of the material contained in it is directed by the Tribunal to be confidential. That is so regardless of the source or nature of the material which is contained in the brief. Thus, the Tribunal asserts that even public documents when contained in such brief are to be treated as confidential. Such confidentiality is to be maintained until the matters in the brief are opened at a public session of the Tribunal.
8. In circulating such a brief the Tribunal has made it clear that it purports to restrain disclosure of the entire contents of the brief.
9. This elaborate procedure is embarked on so as to ensure that the Tribunal conducts itself with constitutional propriety particularly with regard to the rights of third parties.
10. The Tribunal accepts the importance of the work carried out by the defendants in reporting on its hearings and the matters before it. The Tribunal does not accept that the defendants may report on matters arising out of documents which it has determined to be confidential.
11. The Tribunal rulings concerning confidentiality have not been honoured in the past. Many of the failures of the past in this regard have been deliberate and the Tribunal believes done to impede and frustrate its efforts. Nonetheless it has continued to work for the last eight years and this is the first time that an action of this sort has been taken by it.”
I find it necessary to comment on only three of these conclusions i.e. 7, 9 and 10. With regard to No. 7, as I understand it, the Tribunal is not asserting that a document which is in the public domain is in any circumstances a confidential document as such. This was expressly made clear in relation, for instance, to documents such as company searches and Land Registry Folios. The Tribunal, however, is asserting confidentiality pursuant to its own direction as to the fact that such a document has been included in the a particular brief. The Tribunal’s policy in this regard would seem to me to be reasonable, provided that it is legal, a question to be considered later in this judgment. A public document may be perfectly neutral per se as far as any question of injury to a person’s good name is concerned but if transmitted by the Tribunal to some person or persons in a particular context the effect may be quite different.
The learned trial judge has described in conclusion No. 9 the procedure adopted by the Tribunal as an “an elaborate procedure”. I have inferred, I hope correctly, that the word “elaborate” is used here in a somewhat pejorative sense. If so, for the reasons which I have already indicated, I would respectfully disagree with the learned trial judge. I think that provided it does not breach the Constitution or the Convention of Human Rights and provided it can be enforced, the procedure, even if it could be described as “elaborate” is quite sensible and probably necessary for the reasons that the Tribunal asserts to protect the constitutional rights of third parties.
The learned High Court judge is quite correct in conclusion No. 10 in his assertion that the Tribunal takes the view that it can impose confidentiality. But again for the same reasons and subject to the law to be considered later on in this judgment, I can see no objection to this approach.
The learned trial judge, in his judgment, then goes on to criticise (impliedly at least) the Tribunal in making no distinction between information obtained by it from a third party in circumstances where an assurance of confidentiality was given to such a party and material which is not covered by such an assurance. I think that there is a danger of confusion arising here. As I see it, there are two quite distinct aspects of confidentiality which have arisen in the functions of the Tribunal. One is that the Tribunal has been prepared to give undertakings as to confidentiality to persons who furnish it with statements or documents subject of course to the right of the Tribunal to make use of such statements and/or documents at public hearings. The question of what remedy or remedies a person who furnishes such statement or document would have against the Tribunal in the event of the Tribunal breaching such an undertaking does not arise for consideration in this case and indeed in my view, it has almost nothing to do with the case. It is the second aspect of confidentiality in the functioning of the Tribunal that does arise. That is the imposition by the Tribunal itself of an obligation of confidentiality in respect of the brief sent out. The learned trial judge is quite correct, of course, in noting that that purported imposition of confidentiality by the Tribunal extends well beyond documents or statements in respect of which express undertakings have been given by the Tribunal to the original person or persons who furnished them. The object for which the Tribunal purports to impose confidentiality would not be achieved if it confined its imposition to those documents or statements. There would indeed be a further practical problem. If the Tribunal in sending out its brief to interested persons had to sift through the contents and select for confidentiality only those in respect of which an express undertaking had been given, a letter accompanying the documents precisely specifying which document was to be confidential would have to be sent out. This might well prove time consuming and administratively impractical. Ideally, the letter accompanying the brief should expressly state that a document which is of its nature a public document would not of itself be subject to the confidentiality but that confidentiality would be required as to the fact of its conclusion in the brief. I do not think, however, that this omission should be fatal to the Tribunal’s claim in these proceedings as it is quite clear that no issue relating to the simple publishing by the newspaper of a public document arises. Nor indeed has it ever done so.
The learned trial judge, however, appears to take the view that the Tribunal can only impose confidentiality in relation to documents in respect of which the Tribunal itself has given an undertaking as to confidentiality to the provider of them. The judge refers to the background against which the application must be viewed. In this regard he refers to the right to free expression recognised under Article 40.6.1.i of the Constitution and to the later part of the Article which there is specific mention of the liberty of expression of the press. He refers to the Irish Times v. Ireland [1998] 1 I.R. 359 and in particular to the judgment of Barrington J. who held that the article protected a dissemination of information as well as the expression of convictions and opinions. I find it difficult to see a relevant connection between the noble views of Barrington J. on the one hand and the sleazy leaking of Tribunal documents on the other.
The learned trial judge then goes on to treat of the right of the freedom of expression under Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms but he concedes that both the constitutional rights and the Convention rights are subject to limitations. Article 10 expressly permits restrictions “for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”
The learned High Court judge rightly then points out further that even at common law freedom of speech and the press will be protected and he refers in particular to R. v. Central Independent Television plc Fan. 192. But again I would make the comment that the noble sentiment expressed in that case by Hoffmann L.J. (as he then was) had no relevance to the issues in this case. The same is true, in my view, of other important authorities referred to in the judgment.
Among the quotes to which the learned trial judge has attached significance is the following quotation from the judgment of Hardiman J. in O’Callaghan v. The Tribunal Supreme Court (unreported 9th March 2005).
“In my view, the Tribunal cannot by the unilateral adoption of a ‘policy’ on its own part confer the quality of confidentiality, absolute unless the Tribunal itself waives it, on any material. To permit the Tribunal to do this would, in my view, be to allow it in effect to legislate for the deprivation of a party before it of rights to which he is entitled.”
That passage does not support the case being made by Post Publications Limited. It has never been in dispute that any undertaking as to confidentiality given at the investigative stage is subject to appropriate use being made of the document or information at a public hearing. What Hardiman J. was criticising was the decision of the Tribunal not to produce documentation at a public hearing when fair procedures required that it should be produced for the purpose of cross-examination. At p. 48 of his judgment, the learned High Court judge indicates that he is not in principle averse to an injunction being made against a newspaper leaking tribunal documents. The following passage from that page makes this clear.
“Had the Tribunal been less ambitious and sought merely to ensure that documents which it obtained in confidence would have their confidentiality preserved by injunctive relief, there might be something to be said for the courts intervention; but that is not what is sought. Both in the affidavit evidence, the form of order sought and the submissions made, it is quite clear that the Tribunal seeks to go much further and to render confidential everything contained in a brief regardless of nature or source.
Even if one considers the position apart from O’Callaghan’s case could there be any basis to support such a wide claim of confidentiality?”
In the last analysis this is a matter of judgment and I respectfully differ from the view taken by the learned High Court judge for the reasons which I have already indicated.
The next section of the High Court judgment deals with the law of confidentiality as such. What is discussed essentially, and quite correctly, is the equitable rather than the contractual right to confidentiality. The trial judge set out useful principles enunciated by Megarry J. (as he then was) in Coco v. A.N. Clarke (Engineers) Limited [1969] R.P. C. 41. The judge quoted the following passage from the judgment of Megarry J.
“In my judgment three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself, in the words of Lord Greene M.R. in the Saltman case on pg.215, must ‘have the necessary quality of confidence about it’. Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.”
The learned trial judge with references to the first of these requirements refers to dicta of Lord Greene where he said that “something which is public property and public knowledge” cannot per se provide any foundation for proceedings for breach of confidence. Lord Greene’s reasoning was that there could be “no breach of confidence in revealing to others something which is already common knowledge”.
It is interesting and helpful to apply those principles of Megarry J. and Lord Greene M.R. to the present appeal. I have already made clear that it is not the case of the Tribunal that it can impose confidentiality on a public document per se. The information that the public document is included in the brief should be regarded as confidential in the view of the Tribunal and I think that such information given the context in which the Tribunal asserts that view does “have the necessary quality of confidence about it.” I believe this to be so even if in a few isolated cases it may well be that context is not of great significance. It is reasonable in all the circumstances for the Tribunal to have this policy because normally, the context in which the document is sent out will be relevant and should be kept confidential until the public hearing. The second requirement of Megarry J. is also fulfilled in that the Tribunal itself is imposing confidentiality on the person who is receiving it in advance of the public hearing. That is quite a normal basis for confidentiality and indeed newspapers themselves and media outlets are well accustomed to embargos being placed on information pending their being made public in the right way. The third requirement of Megarry J. is also fulfilled in this case as in my view the leaking of the information with knowledge of its confidentiality was clearly unauthorised. Such leaking was to the detriment of the Tribunal’s orderly conduct of its business.
The learned High Court judge in the view which he has taken has also relied on the following passage from the judgment of Lord Goff of Chieveley in Attorney General v. Guardian Newspaper [1990] 1 A.C. 109.
“I start with a broad principle (which I do not intend in any way to be definitive) that a duty of confidence arises where confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word ‘notice’ advisedly, in order to avoid the (here unnecessary) question of the extent of which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious.”
I find nothing in that passage which if applied would disentitle the Tribunal to the relief which it seeks.
The learned trial judge then refers to the case which in this jurisdiction is the most relevant on the law of confidentiality in general. That is House of Spring Gardens v. Point Blank [1994] I.R. 611. The following passage from the judgment of Costello J. in the High Court which was approved by the Supreme Court reads:
“First, I think that the information must be information the release of which the owner believes will be injurious to him or of advantage to his rivals or others. Second, I think the owner must believe that the information is confidential or secret, i.e. that it is not already in the public domain. It may be that some or all of his rivals already have the information: but as long as the owner believes it to be confidential I think he is entitled to try and protect it. Third, I think that the owner’s belief under the two previous headings must be reasonable. Fourth, I think that the information must be judged in light of the usage and practices of the particular industry or trade concerned. It may be that information which does not satisfy all these requirements may be entitled to protection as confidential information and trade secrets: but I think that any information which does satisfy them must be of a type which is entitled to protection.”
The learned trial judge commenting on that quotation from Costello J. observed as follows:
“Thus, it appears that, whether one is speaking about confidentiality in the context of trade or commerce or of the type dealt with in Attorney General v. Times Newspapers or indeed the present case, confidentiality can only attach to information which is truly confidential. It must have the necessary quality of confidence about it. Thus documents or information in the public domain cannot be regarded as confidential.”
I infer from that passage in his judgment that the learned trial judge takes the view that the information imparted as a matter of fair procedures in order to give advance notice to some person who could be damaged by evidence be given at a public hearing does not have “the necessary quality of confidence about it”. Once again, it would appear to me that his reasoning is based on the fact that the brief sent out may include a document which is in the public domain such as a company search or a folio. However, as I have already pointed out more than once, the response of the Tribunal to this objection is that it never intended nor could anyone have thought that it intended that a document in the public domain, as such, would be covered by an obligation of confidentiality. What the Tribunal was trying to ensure was that the fact of such documents being included in the brief would be kept confidential. At any rate, the brief for the most part would consist of copies of statements or documents that were not yet in the public domain and were intended by the Tribunal to be kept private until a public hearing for the purposes of overall fairness and the overall good order in conducting the Tribunal. In my view, those copy documents and statements have “the necessary quality of confidence about (them)”.
The obligation of confidentiality independently of contract is an equitable obligation as pointed out by Costello J. when he relied on a number of English authorities. It seems to me therefore irrelevant to the question of whether the newspaper was entitled to disseminate such information that it had not itself entered into some contract with the Tribunal as to confidentiality. Once it had notice of the policy of the Tribunal and of the intention that documentation sent out to these persons would be kept confidential pending public hearings it was bound in equity not to flout such confidentiality.
Again on the next page of his unreported judgment the learned trial judge makes clear quite correctly that “the only material which could be capable of protection is that which has the necessary quality of confidence about it.” But as I have already pointed out, his opinion that it did not have that “necessary quality” seems to be based on the fact that the briefs may, from time to time, contain documents which in the ordinary way were in the public domain. As I understand it, the learned High Court judge was not in principle against granting an injunction. What he objected to was the width of the injunction sought. In my opinion, the policy adopted by the Tribunal of sending out a brief and making the contents confidential is a reasonable one. I cannot imagine that the Sunday Business Post would have the slightest interest in publishing a document in the public domain unless it could put it into context. It is that context which the Tribunal quite reasonably wants to be kept private until the public hearing.
When reserving his judgment, the learned trial judge did suggest to the parties that he might want to re-enter the matter for discussion as to a narrower form of injunction than those sought. The course of action which the trial judge took in the event cannot be said to contravene any expressed intention. Nevertheless, I am satisfied that if the learned trial judge had re-entered the matter and indicated to the parties that he was unhappy with the form of injunction suggested, counsel for the Tribunal would have applied their minds to achieving a narrower form of injunction that might have been acceptable to the judge. The judge was in no way obliged to facilitate the parties in that way but I think that there was an element of expectation (I will deliberately not use the word “legitimate”) on the part of counsel for the Tribunal that if the outcome of the action was to be determined on the basis of the form of injunction sought it might seem likely that the judge would have permitted further discussion.
Before reaching my final conclusion, there is one other matter which was aired at the hearing of the appeal and with which I would need to deal. It has been suggested that for the Tribunal to create any element of confidentiality in respect of documents or information would require a special enactment in the Tribunal of Inquiries Acts or elsewhere. The argument then runs that the Tribunal being a creature of statute does not have inherent powers. I cannot accept this argument for a combination of reasons. First of all, the system of delivering an advance brief to somebody who might be adversely affected by evidence likely to emerge at a public hearing arises directly from the Constitution and the constitutional obligations both to adopt fair procedures and to protect the good names of persons. If the Tribunal did not owe that constitutional obligation it would be much simpler and more efficient from its point of view to keep everything secret until the public hearing. A constitutional obligation superimposed in this way and to some extent creating problems for the efficient running of the Tribunal cannot be more than is reasonable in all the circumstances and it, therefore, must necessarily embrace any desirable limitation that does not derogate from that obligation such, as in this case, the imposition of confidentiality. The right to impose such confidentiality is, therefore, merely an element in the carrying out of the constitutional obligation and where it is reasonable it would seem to me that there is an implied right by virtue of the Constitution to impose it. A special section is not therefore necessary. Furthermore and for the same reason the legal basis for the alleged restriction exists for the purposes of Article 10 of the European Convention of Human Rights. The imposed confidentiality is necessary for the “protection of the reputation or the rights of others.”
I am satisfied that the evidence establishes that there has been serious leaking over a number of years by the respondent’s newspaper and other newspapers of documents and information which would have been known to have been intended to be kept confidential pending a public hearing. I am equally satisfied that such leakages undermine the work of the Tribunal and that the Tribunal has a right to seek an injunction to stop it. It is perhaps unfortunate that at the hearing before the High Court the Tribunal did not place before the learned High Court judge alternative more precisely worded and somewhat narrower forms of injunctions but I do not think that on account of this, the court should take the view that no injunction of any kind should be granted. I have carefully considered the alternative slightly more modified form of injunction suggested at the hearing of this appeal by Mr. Paul O’Higgins, S.C.. I have already cited that form of draft injunction but I will cite it again now for clarity.
“An injunction restraining the defendant (or any person having knowledge of the order herein) from publishing or using or exploiting any information or document or any part thereof forming part of or arising from the documentation circulated by the plaintiff as part of the fair procedures to vindicate the rights of those intended to appear before the Tribunal, as a result of the circulation by the plaintiff of documents for the purpose of the Tribunal’s public hearing: -
(a) Before such information and/or the contents of such document has been disclosed at a public hearing of the plaintiff; or
(b) until the plaintiff has given express permission for the publication, use or exploitation of such information and/or document,
such order not to apply to documents already in the public domain save that in the case of such documents the defendant (or any person having knowledge of the order herein) is restrained from publicising the fact that they are part of the document so circulated.”
I would allow the appeal by setting aside the order of the High Court and substituting for that order an injunction in those terms.
Mahon Tribunal
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