[New search]
[Printable RTF version]
[Help]
Re Ansbacher (Cayman) Ltd. [2002] IEHC 27 (24th April, 2002)
THE
HIGH COURT
1999
No. 163COS
IN
THE MATTER OF THE COMPANIES ACTS 1963 TO 1990
AND
IN THE MATTER OF PART (ii) OF THE COMPANIES ACT 1990 AND SECTIONS 8 AND 17
AND
IN THE MATTER OF ANSBACHER (CAYMAN) LIMITED (FORMERLY GUINNESS MAHON CAYMAN
TRUST LIMITED, ANSBACHER LIMITED AND CAYMAN INTERNATIONAL BANK AND TRUST COMPANY)
JUDGMENT
of Mr. Justice McCracken delivered the 24th day of April, 2002.
By
an Order dated 22nd September 1999 in these proceedings Johnson J. ordered:-
“Pursuant
to Section 8 of the Companies Act 1990 that the persons named hereunder be
appointed as inspectors to investigate the offices of Ansbacher (Caymen)
Limited (formerly Guinness Mahon Caymen Trust Limited Ansbacher Limited and
Caymen International Bank and Trust Company Limited).
(a)
The Honourable Mr. Justice Declan Costello
(b)
Ms. Noreen P. Mackey Barrister at Law
(c)
Paul F. Rowan Chartered Accountant
IT
IS ORDERED that the inspectors investigate and report to the Court on the
affairs of the company in the title hereof and in particular:-
“(a)
to examine and define the nature and extent of the company’s Irish
business from 1971 to date, i.e. the business carried out in the State or any
other business carried out on behalf of Irish residents whether in the State or
elsewhere.
(b)
to identify as far as possible all of the parties who are either officers
(including shadow directors) and agents of the company clients of the company
or who otherwise assisted in the carrying out of the business at the relevant
times.
(c)
to examine whether the Companies Acts 1963 to 1990 were breached by the company
its officers (including shadow directors) agents or third parties at the
relevant time and if so to identify the provisions involved and the persons in
default in each case.
(d)
to examine whether the affairs of the company were conducted with intent to
defraud its creditors or the creditors of any other person or otherwise for a
fraudulent or unlawful purpose and if so to identify the statutory provisions
involved and the persons in default in each case.
(e)
to report on any related matters.”
1. It
appears that the inspectors report is nearing completion and will be presented
to the High Court shortly. This application is brought by McCann Fitzgerald,
who are Solicitors acting on behalf of two persons who have been informed by
the inspectors that their names will appear in the report as being clients of
the company. The first reliefs sought are:-
“(a)
an Order directing that this application (and any subsequent application in
these proceedings by these applicants) be heard in camera
(b)
in the alternative, an Order for directions as to the manner in which this
application, (and any subsequent application in these proceedings by these
applicants) be heard.”
2. Leave
was given by Finnegan P. to McCann Fitzgerald to issue this motion in their
name, but only on the basis that there would then be legal argument as to
whether the motion itself can be heard in camera. It should be said that it
has been made quite clear that the ultimate aim of the applicants is to
challenge the portion of the Order which relates to the disclosure of clients
of the company, and to prevent the publication of their names as such clients.
This gives rise to a difficult chicken and egg situation, as if the application
to have these matters heard in camera is itself made in open Court this would
almost inevitably disclose the names of the applicants. Accordingly, I decided
that I would hear a preliminary issue without hearing any evidence and still
conduct it in the name of McCann Fitzgerald as to whether, without regard to
evidence relating to the particular applicants, I had any power to order a
hearing either in camera or which in some way limited the publication of the
applicants names. Accordingly, at this stage I am treating this as purely a
legal point.
3. Article
34.1 of the Constitution provides:-
“Justice
shall be administered in Courts established by law by judges appointed in the
manner provided by this Constitution, and, save in such special and limited
cases as may be prescribed by law, shall be administered in public.”
In
In
Re R Limited
[1989] IR 126, which was in effect a consideration of the provisions of
Section
205(7) of the
Companies Act 1963 which is one of the exceptions to Article 34
prescribed by law, Walsh J. also considered the limitations imposed by Article
34 and applied a literal interpretation of the Article, and said at p. 135:-
“The
Constitution of 1937 removed any judicial discretion to have proceedings heard
other than in public save where expressly conferred by statute. Indeed many
matters which come under the heading “lunacy and minor matters”
probably do not constitute the administration of justice but simply the
administration of the estates and affairs of the Wards of Court.
”
It
is already well established in our constitutional jurisprudence that a phrase
such as “save in such special and limited cases as may be prescribed by
law” which appears in Article 34 s. 1 of the Constitution is to be
construed as a law enacted, or re-enacted, or applied by a law enacted by the
Oireachtas subsequent to the coming into force of the Constitution.”
4. That
case was followed by Laffoy J. in
Roe
-v- Blood Transfusion Board
[1996] 3 IR 67, which was an application to allow the plaintiff to proceed with
an action under an assumed name, on the basis that the Court had no
jurisdiction to allow the plaintiff to prosecute the proceedings under a
fictitious name and that to purport to do so would contravene Article 34(1) of
the Constitution.
5. These
cases adopted a strict and literal interpretation of Article 34.1. However,
such interpretation has been somewhat relaxed by the Supreme Court in
The
Irish
Times
Limited and Ors -v- Ireland
[1998] 1 IR 359. These proceedings were by way of judicial review of a
decision of Judge A.G. Murphy in Cork Circuit Court whereby he made an Order
restricting the reporting of certain criminal prosecutions. It is of interest
to note that the restrictions imposed did not prevent the reporting of the fact
that the trial was proceeding, or of the names and addresses of the accused
parties. It was made clear by the judge that he was not going to hold the
trial in camera and that after the conclusion of the case the media would be
totally free to report on it in detail. Notwithstanding this, both Morris J.
(as he then was) in the High Court and the Supreme Court held that the effect
of the restrictions imposed was that the trial was not going to be held
“in public”. The Supreme Court granted the Order of Certiorari
sought by the applicants, but in the course of the judgments a number of
comments were made concerning the extent of Article 34.1 of the Constitution.
The applicant here relies strongly on some of these comments and I would
propose to consider them in some detail.
6. Hamilton
C.J. at p. 384 expressed his views as follows:-
“It
was submitted on behalf of the applicants that in the absence of “an
express statutory provision” as that phrase was used by Walsh J in
In
Re R Limited
[1989] IR 126, no general discretion lies in the Court to order a trial
otherwise than in public and that as there was no statutory enactment relevant
to the instant case, there was no discretion or jurisdiction vested in the
learned Circuit Court Judge to make an Order that it be tried otherwise than in
public.
The
effect of such submission, if valid, would be to remove from a trial judge the
jurisdiction and discretion which he enjoyed at common law to prohibit reports
of proceedings when he considered such reporting would frustrate or render
impractical the administration of justice and to vest in the Oireachtas solely
the jurisdiction of deciding what aspects of the administration of justice
would be conducted in private.
”
A
literal interpretation of Article 34.1 of the Constitution if construed alone,
would appear to support the submission made on behalf of the applicants but
Article 34.1 must be construed in the light of the other provisions of the
Constitution and in particular Article 38.1 which provides that:-
“No
person shall be tried on any criminal charge save in due course of law”.
In
her judgment in
D
-v- The Director of Public Prosecutions
[1994] 2 IR 465 Denham J. stated at p. 473 that:-
“The
applicant’s constitutional rights must be protected. Under the
Constitution Article 38 s.1 “no person shall be tried on any criminal
charge save in due course of law.”
The
unenumerated rights of Article 40 s.3 incorporate a right to fairness of
procedures. Fair procedures incorporate the requirement of trial by jury
unprejudiced by pre-trial publicity. The applicant is entitled to a jury
capable of concluding a fair determination of facts on the facts as presented
at the trial.
The
applicant’s right to a fair trial is one of the most fundamental
constitutional rights accorded to persons. On a hierarchy of constitutional
rights it is a superior right.”
While
the public nature of the administration of justice and the constitutional right
of the wider public to be informed of what is taking place in Courts
established by the Constitution are matters of public importance these rights
must in certain circumstances be subordinated to the interests of justice and
the rights of an accused person which are guaranteed by the Constitution.
I
am satisfied that the exercise of the rights conferred by Article 34.1 can be
limited, not only by Acts of the Oireachtas, but also by the Courts where it is
necessary in order to protect an accused person’s constitutional right to
a fair trial.
The
right of an accused person to receive a fair trial is entrenched in our legal
system and confirmed by the provisions of the Constitution and is a right
superior to any rights arising from the provisions of Article 34.1 of the
Constitution.”
7. O’Flaherty
J. after detailing certain circumstances in which reporting ought not to be
allowed, such as the evidence in a trial within a trial or possibly where
persons had been jointly indicted but had obtained an Order for separate
trials, went on to say at
p.
394:-
“It
would be clear, however, that the Order made by the third respondent here went
much further than had ever been allowed in the past. If valid here, it is an
Order that could be made, in theory at least, in every type of case: criminal
and civil. It must be that the exercise of such a jurisdiction is inconsistent
with the Constitution.”
8. Denham
J. appears to support the views of Walsh J. in
In
Re R Limited
,
except to extend the circumstances in which cases may be prescribed by law to a
consideration of other constitutional provisions which would either expressly
or impliedly require that cases should not be administered in public. She said
at p. 398:-
“There
is no general discretion in or statutes pursuant to Article 34.1 of the
Constitution which empowered the learned Circuit Court Judge to order the
hearing otherwise than in public. Applying the decisions of Walsh J. in
In
Re R Limited
[1989] IR 126 at p. 135 and Finlay C.J. in
Irish
Press plc -v- Ingersoll Publications Limited
[1993] ILRM 747 at p. 751, there is no law, that is statute, pursuant to
Article 34.1 permitting the learned Circuit Court judge to limit access to the
Courts.
However,
that does not dispose of the matter. While there is no discretion in Article
34.1 to order a trial otherwise than in public, Article 34.1 does not exist in
a vacuum. There are competing constitutional rights, rights relating to other
persons and in addition the Court has duties under the Constitution. The Court
has a duty and jurisdiction to protect constitutional rights and to make such
orders as are necessary to that end. There were several rights for
consideration at the trial before the Circuit Court. The accused had a right
to trial in due course of law (Article 38.1) and to a trial with fair
procedures (Article 40.3) the trial judge had a duty to uphold the Constitution
and the law and to defend the rights of the accused. Balanced against that was
the community’s right to access to the Court, to information of the
hearing, to the administration of justice in public (Article 34.1). That right
is clearly circumscribed by the terms of Article 34.1. However, also in the
balance was the freedom of expression of the community, a freedom of expression
central to democratic government, to enable democracy to function. There was
also the freedom of expression of the press. Thus consideration should have
been given to Article 40.6.1(i), which may include the publication of
information:
Attorney
General for England and Wales -v- Brandon Book
Publishers
Limited
[1986] IR 597. The right to communicate (Article 40.3) was also a part of the
panoply rights in the bundle of rights for consideration.
None
of the rights in consideration are absolute. Where there are competing rights
the Court should give a mutually harmonious application. If that is not
possible the hierarchy of rights should be considered both as between the
conflicting rights and the general welfare of society:
The
People -v- Shaw
[1982] IR 1 at p. 56.
The
accused’s right to a fair trial is superior to the other rights in the
balance:
D
-v- Director of Public Prosecutions
[1994] 2 IR 465;
Z
-v- Director of Public
Prosecutions
[1994] 2 IR 476. However, categorising the rights and placing them in the
appropriate hierarchy does not dispose of this matter.
The
test to be applied is whether there is a real risk that the accused would not
receive a fair trial if the trial was held in public.”
9. She
then said at p. 400 under the heading “conclusion”:-
“The
fundamental constitutional principle that justice be administered in public
means that the jurisdiction to make an Order limiting contemporaneous press
reporting of a trial arises only in exceptional circumstances where after
applying the appropriate test and process the learned judge determines that
there is a real and unavoidable risk of an unfair trial. If there is a real
and unavoidable risk that the accuseds would not receive a fair trial then
there would be no question of the accused’s right to a fair trial being
balanced detrimentally against the other rights and consideration.”
10. Barrington
J. took a similar restrictive view of the phrase “as may be prescribed by
law”. He said at p. 401:-
“I
would have no difficulty therefore in holding that the Order made by the
learned trial judge so emasculated the right to a hearing in public as to
constitute a denial of that right unless it could be justified by some other
provision of Article 34 or by some other provision of the Constitution.
As
Counsel for the third and fourth applicants has pointed out the exception
“save in such special and limited cases as may be prescribed by
law” contained in Article 34.1 refers only to laws enacted since the
coming into operation of the Constitution. There is no Act of the Oireachtas
passed since the coming into operation of the Constitution justifying the kind
of Order made by the learned trial judge and therefore this Order must be held
to be void unless it can be justified under some other provision of the
Constitution.”
11. The
learned judge then went on to consider the provisions of Article 38.1 as to the
rights of a person being tried on a criminal charge and said at
p.
403:-
“If
therefore the press were to put in jeopardy the right of an accused person to a
fair trial I have no doubt that the Courts would have all powers necessary to
defend and vindicate the constitutional rights of the accused. (See the
State
(Quinn) -v- Ryan
)
[1965] IR 70). I have no doubt therefore that a trial judge would, in a proper
case have a right to prohibit the contemporaneous reporting of part, or even in
an extreme case, of all of the evidence in a criminal trial.”
12. Finally,
Keane J. at p. 409 dealt with the importance of Article 34 and said:-
“Justice
must be administered in public, not in order to satisfy the merely purient or
mindlessly inquisitive, but because, if it were not, an essential feature of a
truly democratic society would be missing. Such a society could not tolerate
the huge void that would be left if the public had to rely on what might be
seen or heard by casual observers, rather than on a detailed daily commentary
by press, radio and television. The most benign climate for the growth of
corruption and abuse of powers, whether by the judiciary or members of the
legal profession, is one of secrecy.
Article
34 envisages that in what it describes as “special and limited
cases” which must be prescribed by law, justice may be administered
otherwise than in public. Specific instances in which that power has been
availed of or set out by O’Flaherty J. in his judgment. It could never
be exercised so as to deprive the media completely of the power to publish
contemporaneous reports of Court proceedings, since that would render the
guarantee of the public administration of justice virtually meaningless.”
13. He
then qualified this on p. 401 by saying:-
“The
right of the public to be informed as to proceedings in Court is not, however,
an absolute right: its exercise may, on occasions, have to yield to other
constitutional requirements, specifically Article 38.1, which provides that:-
“No person shall be tried on any criminal charge save in due course of
law”.
14. I
have dealt in considerable detail with the five judgments in this case, as they
really form the bedrock of the applicant’s arguments. It has been urged
upon me that the effect of these judgments is that the Courts have jurisdiction
to hear legal proceedings in camera and/or to permit a party to use a pseudonym
in circumstances where such a jurisdiction has not been conferred by law. I do
not think that these judgments can be given that construction, and indeed it
would be a gross distortion of the words of Article 34.1 if that were so. In
my view what the judgments of the Supreme Court do establish is that the phrase
“as may be prescribed by law” is extended beyond statute law to
special and limited cases which may expressly or by inference be prescribed in
the Constitution itself.
15. Some
further assistance may be obtained from the subsequent case of
De
Gortari
-v- His Honour Judge Peter Smithwick
[1999] 4 IR 223. The circumstances of this case were rather unusual, in that
French prosecuting authorities sought an Order pursuant to Section 51 of the
Criminal Justice Act 1994 that evidence should be obtained by the applicant to
assist the French authorities. The applicant refused to answer some of the
questions put to him and claimed that he was not required to do so under the
1994 Act. The respondent ruled against him and the applicant instituted
judicial review proceedings. An application was made to have these judicial
review proceedings heard in camera, which application was refused in the High
Court and on appeal, confirming the High Court decision, Denham J. said at p.
229:-
“The
right to have justice administered in public is not absolute. An
accused’s rights may require a hearing to be held otherwise than in
public. There is an inherent jurisdiction in the Courts to order that a
criminal trial be held otherwise than in public:
Irish Times Limited -v- Ireland
[1998] 1 IR 359. The right of an accused to a fair trial is one of the most
fundamental constitutional rights afforded to persons and on a hierarchy of
constitutional rights is a superior right:
D
-v- Director of Public Prosecutions
[1994] 2 IR 465. A Court may limit the publication of proceedings where that
is necessary in order to protect the right of an accused person to a fair
trial. However, in order to exercise this discretion the trial judge must be
satisfied (a) that there is a real risk of an unfair trial if contemporaneous
reporting is permitted, and, (b) that the damage which any reporting would
cause could not be remedied by the trial judge either by giving appropriate
directions to the jury or otherwise.”
16. I
think it is noteworthy that in this passage Denham J. appears to have construed
the Irish Times case as relating to orders that criminal trials be held
otherwise than in public. She continued at p. 231:-
“In
this case there is no potential Irish criminal trial being investigated. There
is no question of any risk to an Irish trial. There is no issue of unfair
procedures in an Irish criminal trial. While the judicial review proceedings
are an administration of justice they are not preliminary to an Irish criminal
trial. Consequently, in balancing the relevant considerations, on the one hand
are the civil proceedings, judicial review with a possibility of a criminal
trial in another jurisdiction which has a different procedure, and a wish for
confidentiality on the part of the applicant. On the other hand is the
constitutional principle and procedure that the administration of justice be in
public. The harmonisation of these principles is a matter of balance to be
achieved by the Court.”
17. She
then set out at p. 233 her test and said:-
“I
am satisfied that the test to be applied is the Irish test. The onus is on the
applicant. He has not submitted any argument which brings the case within any
of the exceptions under Article 34.1. There is no express exception created by
the Act of 1994. In seeking the exercise of the inherent jurisdiction of the
Court under Article 34.1 the factors which the applicant has put forward are
(a) the French law of procedure and, (b) the applicant’s wish to keep the
matter confidential. Neither factor meets the requirements of Irish law:
Irish
Times Limited -v- Ireland
[1998] 1 IR 359. Neither matter is sufficiently weighty when balanced against
the constitutional requirement that the administration of justice should be in
public to warrant a decision in favour of the applicant. The Irish law
requires that justice be administered in Ireland in accordance with the Irish
Constitution. The Irish Constitution requires that the administration of
justice should be in public except in specific and rare circumstances.”
18. In
the same case Keane J. (as he then was), commenting on
The
Irish Times Limited
case, said at p. 237:-
“In
the judgments delivered in that case, it was also made clear that, apart from
statute, cases could arise in which the requirements of Article 34.1 had to
yield to another constitutional requirement, i.e. ensuring that the accused
person has a fair trial, as where a trial within a trial was taking place or
separate trials had been ordered of persons charged with the same offence.
Manifestly,
this case does not fall within any of the “special and limited
cases” identified in
Irish
Times Limited -v- Ireland
.
It does not fall within any of the statutory exceptions and it is not claimed
that any right of the applicant (who is not charged with any offence) to a fair
trial will be prejudiced.”
19. He
went on to emphasise that in that case no one had been charged with any
criminal offence and there were no criminal proceedings in being. The
judgments in that case would seem to confirm that the Supreme Court judgments in
The
Irish Times Limited
case were intended to be restricted to criminal cases and to exceptions which
arose under Article 38 of the Constitution. In particular, it was made quite
clear that a desire for confidentiality could not under any circumstances be
considered one of the special and limited cases prescribed by law.
20. The
applicants here claim that they have a constitutional right to privacy as one
of the unenumerated personal rights guaranteed by Article 40 and also a right
to their good name pursuant to Article 40.3.2. This is undoubtedly so and I
think the essential question before me is whether the existence of either of
these rights could be said to be a constitutional provision which could be said
under any circumstances to be a special and limited case prescribed by law as
referred to in Article 34.1.
21. The
nature of a right to privacy was considered by Hamilton P. (as he then was) in
Kennedy
-v- Ireland
[1987] IR 587 where he said:-
“The
right to privacy is not an issue, the issue is the extent of that right or the
extent of the right “to be let alone”. Though not specifically
guaranteed by the Constitution, the right of privacy is one of the fundamental
personal rights of the citizen which flow from the Christian and democratic
nature of the State. It is not an unqualified right. Its exercise may be
restricted by the constitutional rights of others, or by the requirements of
the common good, and it is subject to the requirements of public order and
morality ..... the nature of the right to privacy must be such as to ensure the
dignity and freedom of an individual in the type of society envisaged by the
Constitution, namely, a sovereign, independent and democratic society. The
dignity and freedom of an individual in a democratic society cannot be ensured
if his communications of a private nature, be they written or telephonic, are
deliberately, consciously and unjustifiably intruded upon and interfered with.
I emphasise the words “deliberately, consciously and unjustifiably”
because an individual must accept the risk of accidental interference with his
communications and the fact that in certain circumstances the exigencies of the
common good may require and justify such intrusion and interference. No such
circumstances exist in this case.”
22. I
would adopt that as being an accurate and comprehensive statement of the
constitutional right to privacy of an individual.
23. The
constitutional right to a good name derives directly from the wording of
Article 40.3.2 which reads:-
“The
State shall, in particular, by its laws protect as best it may from unjust
attack and, in the case of injustice done, vindicate the life, person, good
name and property rights of every citizen.”
24. The
phrase “in particular” in that sub clause refers back to Article
40.3.1, showing that the right to a good name is simply one of the rights
protected by Article 40.3.1. This Article reads:-
“The
State guarantees in its laws to respect, and, as far as practicable, by its
laws to defend and vindicate the personal rights of the citizens.”
25. The
first comment I would make is that Article 40.3 is a guarantee by the State to
use its laws to protect the personal rights of citizens. However, what we have
in this case is not a conflict between a personal right of the citizen and the
law of the State, but a possible conflict between a personal right of the
citizen under Article 40.3 and the constitutional provisions under Article
34.1, which latter are not part of the laws enacted by the State, but are part
of the law enacted by the people. Furthermore, Article 40.3 only applies
“as far as practicable”, and only protects citizens from
“unjust attack”. It is not an absolute guarantee of the personal
rights of the citizen.
26. No
case has been cited to me in which a right to a good name or a right to privacy
can justify anonymity in Court proceedings. A request for such anonymity was
expressly refused by Laffoy J. in
Roe
-v- The Blood Transfusion Service Board
[1996]
3 IR 67, although this case was heard before
The
Irish Times
case. However, the rationale for refusing anonymity as set out in that case
seems to me to remain perfectly valid. Laffoy J. said at p. 71:-
“The
plaintiff’s stated objective in seeking to prosecute these proceedings
under a fictitious name is to keep her identity out of the public domain. In
my view, in the context of the underlying rationale of Article 34 s.1, the
public disclosure of the true identities of parties to civil litigation is
essential if justice is to be administered in public. In a situation in which
the true identity of a plaintiff in a civil action is known to the parties to
the action and to the Court but is concealed from the public, members of the
general public cannot see for themselves that justice is done.”
27. It
has been said in a number of cases that, while there may be a hierarchy of
rights under the Constitution, initially the Court should attempt to reach a
judgment which harmonises the possible conflicting rights, and it is only if
this is not possible that the Court continues and considers the strength or
rankings of respective rights. I entirely agree with this approach, and it
seems to me that to extend the right to privacy or the right to a good name to
anonymity in a Court case could not possibly be said to be a practicable way
for the State to defend and vindicate these rights in the light of Article
34.1. As I have said, the personal rights are not absolute, and in considering
the extent of such personal rights, one must do so in the light of other
constitutional provisions including Article 34.1. The only harmonious
construction of the personal rights must be that their exercise do not
interfere with other constitutional requirements which are inserted for the
public good. Were that not so, it would make nonsense of parts of the
Constitution. In one sense it may violate a person’s privacy and a
person’s good name to have them charged with a serious offence before the
Courts, but it could not possibly be said to be a violation of their
constitutional rights if they are named, or that they have a constitutional
right to be charged under an assumed name. Similarly, and I think it is
analogous to the present case, if a person wishes to seek an injunction to
restrain the publication of a libel, such person must make such application in
their own name. There are of course cases envisaged by Article 34.1 where
parties names will not be disclosed, such as the names of defendants in
criminal proceedings who are minors, or the names of parties to matrimonial
proceedings. These are matters regulated by statute.
28. Article
40.3.2 refers to the State protecting citizens as best it may from unjust
attack. The applicants here have chosen a rather convoluted argument to show
that they may be under unjust attack. They say that the Order of the High
Court made in 1999 appointing the inspectors was
ultra
vires
insofar as it directed them to publish the names of clients of Ansbacher, but
of course that Order in itself was not an unjust attack on the applicants
personally. They then go on to argue that, as a result of the
ultra
vires
Order, the report of the inspectors will or may name them as clients of
Ansbacher although in exactly what context we do not know, as of course the
report has not been published. They argue that this would involve an
accusation against them which might be considered by members of the public as
accusations of impropriety or criminal offences, and therefore they would
constitute an unjust attack. For the purpose of this application, I think it
is probably fair on the applicants to assume that either they were going to be
wrongly named as clients of Ansbacher or alternatively, if they were rightly so
named, they have done absolutely nothing either legally or morally wrong.
Assuming that to be so, the laws of this State do defend and vindicate the
applicant’s good name. The applicant is perfectly entitled, subject
possibly to claims of laches, to bring proceedings to set aside all or any part
of the Order appointing the inspectors. If the report is published naming them
as clients of Ansbacher, the applicant may well, depending on the
circumstances, have rights to seek a judicial review of the decisions or
findings of the inspectors. It is acknowledged by the applicants that they
have been given an opportunity to make submissions to the inspectors, and
presumably they have done so. They make no complaint about the conduct of the
enquiries by the inspectors. If commentators or journalists seek to draw
inferences from the report which are not justified by it but are drawn simply
because the applicants are named as Ansbacher clients, they may have recourse
to the laws of defamation. If at the end of the day they are charged with a
criminal offence as a result of the inspector’s report, they have the
full protection of the State in defending themselves, as does anybody else
accused of a criminal offence. It is by these means that the State protects
the good name of a citizen. A very good example of how the State does so are
the rules laid down by O’Dalaigh C.J. in
In
Re Haughey
[1971] IR 217.
29. In
my view, therefore, there is no possible harmonious construction of the
Constitution whereby the applicants personal rights could be considered to give
rise to any special or limited case prescribed by law as an exception to
Article 34.1.
30. Finally,
I would emphasise the views expressed in the passage I have already quoted from
the judgment of Denham J. in
De
Gortari -v- Smithwick
at p. 233 where she said that in seeking the exercise of the jurisdiction of
the Court the factors put forward by the applicant were related to the French
law of procedure and the applicants wished to keep the matter confidential.
She commented:-
“Neither
factor meets the requirements of Irish law:
Irish
Times Limited -v- Ireland
.
Neither matter is sufficiently weighty when balanced against the
constitutional requirement of the administration of justice should be in public
to warrant a decision in favour of the applicant.”
31. This
view was expressed subsequent to and in reliance on
The
Irish Times
Limited
case, and it simply confirms the view taken many years earlier by the Supreme
Court in
Beamish
&
Crawford
Limited -v- Crowley
[1969] IR 142 at p. 146 where Ó’Dálaigh C.J. said:-
“On
the grounds contra advanced on behalf of the plaintiffs, that which gives them
most concern is the adverse effect of unfavourable publicity. One appreciates
that the publicity associated with proceedings raising the issue that goods
sold are not of merchantable quality can be damaging to the interests of the
manufacturer. One need not waste sympathy on the manufacturer whose goods are
not of merchantable quality; but the manufacturer whose goods are shown to be
of merchantable quality does deserve sympathy. But publicity, deserved or
otherwise, is inseparable from the administration of justice in public; this is
a principle which, as the Constitution declares, may not be departed from
except in such special and limited cases as may be prescribed by law: Article
34, section 1. I cannot accept that the fact that the trial will, for one of
the parties, attract more undesirable publicity in one venue than in another is
a matter proper to be taken into account in determining the venue.”
32. The
fact that Article 34.1 requires Courts to administer justice in public by its
very nature requires the attendant publicity, including the identification of
parties seeking justice. It is a small price to be paid to ensure the
integrity and openness of one of the three organs of the State namely the
judicial process, in which openness is a vital element. It is often said that
justice must not only be done, but must also be seen to be done, and if this
involves innocent parties being brought before the Courts in either civil or
criminal proceedings, and wrongly accused, that is unfortunate, but is
essential for the protection of the entire judicial system. I do not believe I
am called upon to consider any hierarchy of rights in the present case, but if
I had to do so, I have no hesitation whatever in saying that the right to have
justice administered in public far exceeds any right to privacy,
confidentiality or a good name.
33. I
therefore refuse this application.
© 2002 Irish High Court
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/ie/cases/IEHC/2002/27.html
