Summary of judgment: This is the full ruling of the tribunal delivered yesterday by Judge Alan Mahon in relation to Mr Ray Burke's application for costs.
On 30th June, 2004, following upon oral and written submissions made to me, I ruled on the principles to be applied in respect of certain applications for costs.
An application for costs was subsequently made on behalf of Mr Raphael Burke on 19th July, 2004.
Based on the principles detailed in this ruling, and having regard to the particular circumstances applicable to Mr Burke's application for costs, my conclusions and my reasons for so deciding are as follows:
Mr Burke was granted limited representation by the tribunal on 2nd February, 1998, and again on 15th September, 1998, following the amendment of the tribunal's terms of reference.
From the former date until the publication of the Second Interim Report in September, 2002, both in the course of private and public hearings, Mr Burke was represented by solicitors and by Senior and Junior Counsel, as was his entitlement. In addition, he engaged the services of accountants and tax advisers to assist him in relation to the provision of details of his financial affairs to the tribunal.
Four orders relating to discovery and production of documentation by Mr Burke were made by the tribunal between 12th February, 1998, and 22nd December, 1998. Mr Burke himself gave evidence on oath for 26 days. In addition, extensive correspondence passed between the tribunal and Mr Burke and/or his solicitors. Mr Burke's legal representatives cross-examined a number of witnesses who were called to give evidence and fully participated in the public hearings.
There can be no doubt that Mr Burke's legal and professional advisors provided him with a committed and professional service over a lengthy period of time.
Mr Burke through his solicitors submitted an estimate of his claim for legal and associated costs in a sum in excess of €10,000,000. This estimate was not intended to be exhaustive, and the ultimate sum sought may have been in excess of this figure. Any award of costs which I may make is subject to taxation by a Taxing Master of the High Court. This means that it is the Taxing Master who fixes the appropriate level of charge and not me.
My function is to determine whether the claimant has an entitlement to recover his costs whether in whole or in part from the State appropriate for the provision of such legal or other services, and not to measure the rate of charge.
The work of the tribunal for the period in question leading to its Second Interim Report insofar as Mr Burke is concerned in this application, was divided into separate modules namely:
1. The Brennan & McGowan Module;
2. The Century Module; and
3. The Gogarty Module.
Mr Burke was directly and extensively involved in each of these modules. It could be said that in each of the modules, he played a central role and that his full participation was of crucial importance and relevance to the whole of the tribunal process.
In its Second Interim Report the tribunal made findings in relation to Mr Burke, both in relation to the substantive issues under inquiry and in relation to co-operation with the tribunal in its inquiries. The following summary of these latter findings was set out in the Second Interim Report:
Brennan & McGowan Module
(A) Issue of co-operation
Mr Burke was found to have obstructed and hindered the tribunal by:
(a) Failing to provide the tribunal with a truthful account of the circumstances in which he came to acquire ownership of the property known as Briargate, Malahide Road, Swords, Co Dublin;
(b) Furnishing an account as to how he had financed the acquisition of the property which he knew to be false;
(c) Failing to provide the tribunal with a truthful account as to why he had opened offshore bank accounts in the Isle of Man and Jersey;
(d) Falsely maintaining that the offshore accounts opened by him were opened to receive the proceeds of political fundraising events in the United Kingdom when he knew that this was not the true source of the funds so deposited.
(e) Falsely representing that a sum of £15,000, lodged to his Jersey account in April 1985, was a re-lodgement of funds earlier withdrawn from the same account at a time when he knew this to be false;
(f) Colluding with named individuals to give false accounts as to how the funds lodged to his offshore accounts had been paid into his accounts, and as to the source of these funds;
(g) Failing to give a truthful account of the real purposes for which these monies were paid by named individuals, and companies related to them.
Century Module
(A) Issue of co-operation
The tribunal held that Mr Burke obstructed and hindered the Tribunal by:
(a) Failing to give a truthful account of the circumstances and considerations which led to his issuing a Directive pursuant to section 16 of the Radio and Television Act 1988, on 14th March, 1989, fixing the level of transmission charges to be paid to RTÉ by Century Radio;
(b) Failing to give a truthful account of the circumstances which led to the payment to him of a sum of £35,000 by Mr Oliver Barry in May 1989; and
(c) Failing to give a truthful account as to the circumstances and considerations which led to the introduction by him of legislation to curb RTÉ's advertising revenue in 1990.
Gogarty Module
(A) Issue of co-operation
The tribunal was satisfied that Mr Burke obstructed and hindered the tribunal in this module by:
(a) Failing to give the tribunal a truthful account of the circumstances in which he came to receive monies from Joseph Murphy Structural Engineering (JMSE) at his home in June, 1989;
(b) Falsely maintaining that Mr Joseph Murphy junior was not present at such a meeting when he knew this to be untrue;
(c) Offering in evidence an account of events as to what occurred at the meeting at his home with Mr Gogarty when he knew this to be untrue;
(d) Failing to give a truthful account of the nature of his relationship with Mr Michael Bailey and the purposes for which the meeting at his home had been arranged by Mr Bailey.
In the course of my deliberations, I have carefully considered both the written and oral submissions made on behalf of Mr Burke in support of his application for his costs to be paid by the Minister for Finance.
The significant amount of time work and effort expended by Mr Burke and his lawyers in their efforts to co-operate with the tribunal was emphasised in those submissions. I have no doubt that a significant amount of time, work and effort was expended by Mr Burke and his advisers.
I am aware that serious criticism was not at any time directed at Mr Burke's lawyers in respect of their efforts to co-operate with and furnish information and documentation to the tribunal by Mr Justice Flood, either at public hearings, or in correspondence.
It was submitted to me that Mr Burke himself had co-operated with the tribunal and that he had not, in the course of the public hearings, or prior to the Second Interim Report, been criticised or admonished for non co-operation. It was submitted that he had therefore a reasonable expectation that he would ultimately recover his costs.
In order to fully appraise myself as to the extent of the non co-operation of Mr Burke as found by Mr Justice Flood in the Second Interim Report, it was necessary for me to consider in detail transcripts of evidence, the relevant correspondence and the documentation made available to the tribunal which was considered at the public sessions which preceded the Second Interim Report.
I did this essentially for two reasons. Firstly, although accepting the findings in the Second Interim Report which I have indicated I must and should do, I was anxious to understand the detail of the evidence which led to these various conclusions. Secondly, I deemed it important and necessary to ascertain whether there were instances of full or substantial co-operation on the part of Mr Burke which could reasonably be divorced from those parts of the investigation which ultimatelyproduced the adverse findings in the report in relation to co-operation.
Having read and considered the said transcripts of evidence, the correspondence and the documentation, I am satisfied that, the tribunal's investigations relating to Mr Burke were both necessary and reasonable, and did relate to matters essential to the work of the tribunal.
The extent of these investigations was directly related to the degree of co-operation provided by Mr Burke. The concept of co-operation has, and in Mr Burke's case, did have various requirements, including complete discovery of documentation and the giving of evidence to the tribunal which was truthful and factual.
However, it is abundantly clear having regard to the findings of the Second Interim Report and having regard to the evidence given by Mr Burke, and other witnesses on oath, and having regard to the relevant documentation made available to the tribunal, (especially when considered in the light of such evidence) that Mr Burke decided from an early stage not to co-operate with the tribunal and that this approach and stance was maintained by him throughout the inquiry. There was at all times a legal obligation upon Mr Burke to co-operate with the tribunal and to give truthful evidence in the course of its public hearings.
Co-operation means a great deal more than merely providing documentation, obeying summonses to give evidence under oath and generally conducting oneself in a fashion which has the appearance of co-operation. Far more importantly, co-operation involves telling the truth. This includes the avoidance of giving evidence which is either known to be false, or otherwise giving evidence or providing information which, if taken in isolation might be factual or truthful in whole or in part, but which when placed in the context of the investigations being conducted by the tribunal, is designed to mislead the tribunal and obstruct and prevent it from arriving at the full truth.
It is clear that the failure on the part of Mr Burke to co-operate with and give truthful evidence and information to the tribunal was of such a degree and such an extent as to cast a shadow over all of the evidence which directly related to the issues being investigated by the tribunal.
This is not an incidence of an individual witness being merely liberal with the truth, or occasionally giving false or tardy evidence, or withholding the less important aspects of a story in the hope of slowing the progress of the investigation (all of which in themselves amount to non co-operation under one guise or another); it is rather a case of a crucial witness setting out deliberately to mislead the tribunal in the hope and expectation that the inquiry would prove inconclusive or would produce erroneous findings.
Insofar as Mr Burke did, on occasion, appear to co-operate with the tribunal, such co-operation was superficial and was only given to the extent necessary to create the impression of co-operation.
I have no doubt whatsoever that Mr Burke knew full well that his evidence and the information being disclosed by him and others to the tribunal was false and misleading. The contention advanced on his behalf that any failure on the part of the tribunal to specifically warn him at the time that his evidence was false and to specifically advise him of the consequences of him continuing to participate in the tribunal on this basis is a matter which should in any way support his application for costs, is completely without merit.
I do accept that Mr Burke's legal representatives acted at all times in a professional and co-operative fashion, but unfortunately that is not a matter I can reasonably be expected to take into consideration in determining Mr Burke's entitlement to costs having regard to the views I have already expressed.
The fact that Mr Burke's solicitors themselves may have been used unwittingly as a conduit of false or misleading information furnished to them by their client is not a matter that I can or should take in to account in support of an award of costs to Mr Burke.
The effect of Mr Burke's non co-operation with the work of the tribunal relevant to the three modules in question, while impossible to measure in absolute terms, is nevertheless clearly of such a magnitude that it fundamentally challenged the very purpose of the creation of the tribunal, and for this reason must be viewed with the utmost seriousness.
The result of Mr Burke's non co-operation was to prolong the work of the tribunal. It must follow therefore that Mr Burke was responsible for incurring much or all of the costs which he has undoubtedly incurred.
I have also considered the submission to the effect that Mr Burke is not a wealthy individual and has little in the way of savings or investments, and that a discharge of even a portion of the costs incurred by him will impose a significant burden on him.
While I believe this to be a factor to be properly taken into account, it is one that on this occasion I must discount because of the degree and extent to which Mr Burke misled the tribunal at almost every turn.
I have also had particular regard to the principles which should be applied in respect of an application for costs, and which I enunciated in some detail on 30th June, 2004. In particular, in relation to Mr Burke's application, I should mention the following principles:
- The nature and extent of any non co-operation or failure to assist the tribunal.
I have found that the nature and extent of the non co-operation and the failure to assist the tribunal was substantial and affected all three modules to a very significant degree.
- The consequences which flowed from this non co-operation and the failure to assist the tribunal.
I am satisfied that the direct consequences of the non co-operation and failure to assist the tribunal did prolong and extend the periods of both private and public inquiries undertaken by the tribunal.
- The conduct of the applicant, Mr Burke.
I have found that the conduct of Mr Burke in giving information and evidence to the tribunal was in breach of his legal obligation to co-operate with and assist the tribunal.
- Mr Burke's reasons for failing to co-operate with the tribunal and his failing to assist and knowingly providing false information to the tribunal.
I am satisfied from the extent of Mr Burke's false and misleading evidence and the fact that it permeated almost all of his important evidence, that his reasons for so acting in this manner were to mislead the tribunal to a very significant degree and to frustrate its attempts to seek out the truth. The relevant legislation provides that where I am of the opinion that there are sufficient reasons rendering it equitable for me to do so, I may award costs to a party. Of course this discretion must be exercised in a manner which is impartial and fair. I am however satisfied that it is fair and reasonable in all the circumstances that I should refuse to award Mr Burke his costs, and I so do.
I have not considered in any detail the degree to which the substantive findings, including those of corruption, should impact on Mr Burke's application for costs, as I believe that the degree and extent of his non co-operation was so significant and so substantial as to warrant such consideration unnecessary.
I am quite certain however that had Mr Burke largely co-operated with and given truthful evidence to the tribunal, I would be favourably disposed to awarding him at least a portion of his costs, even in the face of the very serious substantive findings of corruption. I believe this to be the correct approach and more than justified in the interests of providing an incentive to individuals to co-operate with tribunals of inquiry such as this one, and which have been established by the Oireachtas in the public interest.
His Honour Judge Alan P. Mahon, SC, Chairman.
6th September, 2004