TRIBUNAL RULING RE: OPINION DATED 9 TH MAY, 1996 1.
This Ruling relates to an issue that has arisen in the course of the Tribunalâ€™s inquiries, pursuant to paragraph (e) of its Terms of Reference, into the circumstances surrounding the grant of the second GSM mobile telecommunications licence to ESAT Digifone on 16th May, 1996. The particular issue which has arisen relates to an opinion of Counsel dated 9th May, 1996 that was provided to the Department of Transport, Energy & Communications (as it then was) in the weeks leading up to the grant of the licence. In brief, IIU Limited and Mr Dermot Desmond have sought access to the opinion over which the Department and the Attorney General have maintained, and continue to maintain, a claim to legal professional privilege. What IIU and Mr Desmond are effectively asserting (and in which regard they are supported by Mr Denis O'Brien) is that the Tribunal should make an Order for Production of the opinion, pursuant to the powers conferred on it by the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979, notwithstanding that claim to privilege.
In order to put this matter in context, it is necessary in the first place to make reference to both the circumstances in which the opinion was sought by the Department, and to the Tribunalâ€™s dealings with the Department in relation to it.
The second GSM process which led to the licensing of ESAT Digifone comprised two distinct phases.
The first phase, which involved the
competitive evaluation of tenders submitted by interested parties, commenced on 4th August, 1995 with the receipt of tenders, and concluded on 25th October, 1995 with the announcement that ESAT
Digifone was the winner of that competitive process. What ESAT Digifone won, was not the right to the second GSM licence, but rather the exclusive entitlement to negotiate with the Department for the grant of the licence. The second phase of the process involved negotiations between ESAT Digifone and the Department which ultimately led to the grant of the licence.
This second phase commenced very shortly after the
announcement of 25th October, 1995, and concluded on 16th May, 1996, when the licence was issued. 4.
It was during the second phase of the process that the opinion in question was sought after consultation between the Department and officials of the Office of the Attorney General. Those consultations followed receipt of notification on 17th April, 1996, from William Fry Solicitors for ESAT Digifone, concerning the composition of the ESAT Digifone consortium, and in particular informing the Department that a 20% institutional shareholding provided for in the tender, would not be taken up by the institutions mentioned in the tender, namely, Allied Irish Bank, Investment Bank of Ireland, Standard Life Ireland and Advent International plc, but would be allocated to IIU Limited, a company beneficially owned by Mr Dermot Desmond together with a further 5% shareholding arising from the dilution of the holdings of Communicorp and Telenor. Following a meeting between officials of the Department and officials of the Office of the Attorney General on 24th April, 1996, the Department wrote to the Attorney Generalâ€™s Office on 27th April 1996 in relation to a number of aspects of the process on which advice was being sought, and reiterated the Departmentâ€™s requirement for a legal opinion on the re-structuring of the ownership of ESAT Digifone and in particular:â€œThe question of whether recent correspondence suggests any change
in the identity of the beneficial owners of the company which could be
considered incompatible with the ownership proposals in the company’s application must be addressed”. That advice was sought in the light of paragraph 3 of the Request for Tenders document that had been issued by the Department on 2nd March, 1995 inviting interested parties to submit tenders, which provided at paragraph 3 that:“Applicants must give full ownership details for proposed
Whilst the correspondence received from Messrs William Fry, and the dealings between the Department and the office of the Attorney General featured in evidence led by the Tribunal in the course of public sittings, the opinion of 9th May was not led in evidence by the Tribunal having regard to the legal professional privilege attaching to it, which was accepted by the Tribunal and indeed is accepted by IIU Limited and Mr Desmond, and is further accepted in principle by Mr O’Brien.
With regard to this second preliminary matter, it is necessary to refer briefly to the Tribunal’s dealings with the Department in relation to the production of documentation. From in or about May, 2001, the Tribunal was in contact with the Chief State Solicitor’s Office with a view to obtaining copies of all documents held by both the Department and the Department of Finance, in relation to the entire second GSM process. At all times, it has been the preference of the Tribunal, in furthering its inquires, to obtain documents from parties on a voluntary rather than a compulsory footing, and its dealings with both Departments were at all times on that basis. The documents in question were produced to the Tribunal voluntarily, and in the course of that exercise the Chief State Solicitor’s Office furnished the Tribunal on 15th February, 2002, with a
schedule of documents itemising documents that had been withheld by the Department, pending consideration of a claim to legal professional privilege. By letter dated 18th February, 2002, the Tribunal responded by indicating that as a lengthy period had already passed since documents had been provided by the Department, the Tribunal wished to receive confirmation from the Department within seven days as to whether it was, or was not maintaining a claim to privilege over the documents listed in the Schedule, and if so, wished to obtain details of the basis on which such claim was being maintained in respect of each document or category of documents withheld. 7.
From the inception of its private inquiries, the Tribunal adopted a procedure for dealing in a pragmatic and efficient manner with claims to legal professional privilege made by persons from whom the Tribunal was seeking the production of documentation.
Rather than ruling on such
claims to privilege, which could involve a costly and time-consuming process in relation to documentation which might not ultimately be of any assistance to its inquiries, or material to its Terms of Reference, the Tribunal developed a practice of requesting persons maintaining such a claim to provide copies of such documents to the Tribunal for the purposes of examination only without prejudice to such claim.
practice obviated the necessity of the Tribunal having to rule on privilege if it transpired, as was very often the case, that the documents were not material to the Tribunalâ€™s Terms of Reference or not significant in terms of the Tribunalâ€™s inquiries. In the event that the Tribunal determined that such documentation was significant, it was agreed that the claim to privilege could be fully ventilated, and would then be ruled on by the Tribunal.
It was this course that was adopted in the case of the
documentation listed in the Schedule with which the Tribunal was furnished by the Department, and which included the opinion of 9 th May, 1995.
Having examined the privileged material, it was clear to the Tribunal that no opinion addressed to the issue raised in the Department’s letter of 27th April, 1996, had been provided, and that in particular the Opinion of 9 th May, 1995 did not deal with the matter on which advice had been sought. The Tribunal was faced with the difficulty that this information had been obtained on foot of the facility provided by the Department of examining the documents on a without prejudice basis. “Without prejudice” in this context meant without prejudice to the Tribunal’s right to call for the document ultimately, and to contend that it was not privileged, and to the Department’s corresponding right to refuse production on the grounds that it was privileged. The Tribunal was accordingly obliged to balance on the one hand the Government’s right to privilege for its legal advices, and on the other, the necessity to demonstrate that this advice had been sought but, had not been provided.
There seemed to be only two ways of demonstrating that the advice actually sought had not been furnished, that is, either by disclosing the opinion which would have been firstly, in breach of the Tribunal’s undertaking to the Department, and secondly, of the Government’s privilege, or by conveying in some other way the fact that it did not contain the advice actually sought. The latter was achieved by obtaining from the then Attorney General a letter stating that the advice actually sought had not been provided. Furthermore, that was confirmed in the evidence of Mr John Loughrey, who was Secretary General of the Department at the time, and who was in direct control of the Department’s dealings in connection with its consideration of the involvement of IIU Limited/ Mr Desmond in the ESAT Digifone consortium, who testified that he was satisfied, following a review of all of the Departmental documentation in advance of giving evidence, that an opinion on that matter had not been provided to the Department by the Office of the Attorney General.
Notwithstanding that IIU/Mr Desmond accept that the opinion is privileged, they have sought access to it as they understandably wish to ascertain for themselves whether the advice sought had actually been obtained.
Tribunal has considerable sympathy with the position of IIU Limited/Mr Desmond, and in the first instance, endeavoured to facilitate them by seeking to put in place some arrangement whereby they might have access to the Opinion, but those efforts came to nothing. In that regard, the Tribunal sought to ascertain whether the Department would be agreeable to waiving privilege, but by letter dated 6th December, 2005, the Chief State Solicitorâ€™s Office informed the Tribunal that, having considered the matter, the Department was not prepared to waive privilege in respect of the Opinion. 11.
The Tribunal then instituted a procedure whereby it invited IIU/Mr Desmond and the Department to furnish the Tribunal with written submissions addressed to the issue. Written submissions were received on behalf of IIU/Mr Desmond on 2nd March, 2006 and from the Department on 12th June, 2006. Copies of the submissions of each of the parties were in turn served on the other, and each of them was invited to furnish supplemental submissions if they chose so to do, but neither availed of that option. All other affected persons, including the Public Interest, were also extended the facility of making submissions, and submissions were received on behalf of Mr Denis O'Brien on 18th January, 2008. Copies of those submissions were in turn provided to both IIU Limited/Mr Desmond, the Department and the Public Interest, who were again invited to make supplemental submissions.
Supplemental submissions were received
from the Department on the 1st of February, 2008, and initial submissions, limited to a single matter raised by Mr Oâ€™Brien, were also received from the Attorney General, on behalf of the Public Interest, on 1st February, 2008.
Mr Oâ€™Brien, having been served with the public interest
submissions, provided final submission on 20th February, 2008.
Tribunal has fully considered all of the submissions which it has received. 12.
IIU/Mr Desmond do not dispute that in the ordinary course the opinion would attract privilege, but contend as follows:(i)
That there has been an implied waiver of the privilege by reason of references made to the opinion in the course of the Tribunal’s sittings.
That, irrespective of the privilege attaching to the opinion, it should be disclosed pursuant to the principles recognised by the Supreme Court in the case of O’Callaghan v. Mahon1. Mr O’Brien also accepts that the opinion is prima facie privileged but has submitted that, in circumstances to which reference will be made, there is no reality attaching to the claim of privilege, and/or the privilege has been waived. A further submission is made that other legal considerations justify the Tribunal in overriding the Government’s privilege, and directing full disclosure of the opinion. The Tribunal will consider each of these matters in turn.
Waiver of P rivilege 13.
The thrust of the submissions of IIU and Mr Desmond is that references were made in the course of the evidence of departmental witnesses to the opinion, and that passages of the opinion were put to Mr Loughrey in the course of cross-examination by Mr Eoin McGonigal SC, Counsel for Mr O’Brien, without objection by the Department. It is contended that these
 2 IR 32
references were made for “litigious advantage”, and that accordingly there has been an implied waiver of privilege. The Department has submitted, in brief, that the request made by IIU/Mr Desmond is based on a fundamental misconception of what occurred in the course of the Tribunal’s inquiries, and that there has been no implied waiver of privilege, either by virtue of any partial disclosure or otherwise and that further, such disclosure as may have occurred was not for the purpose of “litigious
Before proceeding to consider the legal principles applicable, it is appropriate to set out briefly what occurred in the course of the Tribunal’s public sittings. As already adverted to, the Department’s request for the provision of an opinion by the Office of the Attorney General was prompted by the notification received from Messrs William Fry on 17th April, 1996, that a 25% shareholding in ESAT Digifone would be allocated to IIU Limited, rather than to the institutions to which reference was made in the tender submitted by ESAT Digifone, and evaluated by the Department. This matter formed one aspect of a much broader inquiry made by the Tribunal as to the actions of the Department, and of the then Minister, in the weeks preceding the issue of the licence on 16th May, 1996. In particular, the Tribunal was pursuing inquiries into what action (if any) was taken by the Department and the Minister on foot of that communication from Messrs William Fry, what decision was made on foot of that communication, and what factors may have prompted or contributed to that decision.
The opinion of 9th May, 1996, was not opened in the course of evidence as the Tribunal dealt with its inquiries in the manner already outlined. IIU/Mr Desmond have instanced references to the opinion in the course of the evidence of Mr Martin Brennan (who was Chairman of the Project Group established to evaluate the bids), Mr Fintan Towey, who was a member of
the Project Group and who had signed the letter of 24th April, 1996, to the Office of the Attorney General requesting the provision of an opinion, and the evidence of Mr John Loughrey, who was then Secretary General. 16.
Mr Brennan was questioned by Counsel for the Tribunal about this matter on 4th February, 2003 (Day 178 of the Tribunal’s sittings) and with reference to Mr Towey’s letter of 24th April, 1996, he was questioned as follows:“Q.
the third paragraph of the letter refers to a legal opinion on the restructuring of the ownership of Esat Digifone. Do you see that? A.
I do, yeah.
And the question whether the identity of the beneficial owners of the company could be considered incompatible with the ownership proposals outlined in the company's application must now be addressed. That shows, I suggest, that at least that issue, to some extent, you may have flagged at the outset of your evidence today, was being considered by the Department?
Mm-hmm. Although it doesn't seem that the opinion that was eventually obtained or pursued dealt with that issue; it seemed to be deal mainly with Section 8, if you have seen the advice.
I haven't looked closely at the advice”.
Mr Towey’s evidence in relation to this matter was heard on 20 th May, 2003 (Day 220 of the Tribunal’s sittings) when he was examined by Counsel for the Tribunal as follows:-
I mean, my understanding is that this issue was then referred to counsel, and I think that is indicated there.
We have seen counsel's opinion I am not going to discuss counsel's opinion with any witness, we have counsel's opinion in this matter and we know Mr. Loughrey's understanding on matters as well?
Mr Loughrey was questioned by Counsel for the Tribunal as follows on 21st February, 2003 (Day 188 of the Tribunal’s sittings):-
….Now, that particular issue was not addressed in any legal advice which was furnished to the Department?
It is clear, in perusal of the papers actually, that that appears to be the case, Mr. Coughlan.
However, at the time we took, or
personally I took the decision I was not so aware. Let me put it this way: nobody had informed me that there was any problem on the legal side. I assumed, therefore, that I would have been -let's say if a problem had arisen I would have been informed. So I am now aware, clearly from the papers here, that I don't see any evidence of that actually, so that must be the case. Q.
But having said that –
And I can assure you it is because the Attorney General himself has informed the Tribunal so?
Of course I would accept that”.
In the course of Mr Loughrey’s cross-examination by Mr Eoin McGonigal SC, Counsel for Mr Denis O'Brien, on 27th February, 2003, (Day 191 of the Tribunal’s sittings) the following exchange occurred:“Q. The other matter I just want to draw your attention to, because it
seems to me to be relevant as a line of inquiry, is the advices which were given to the Department, the Office of the Attorney General by Richard Nesbitt, who is Counsel for the Department I know, but he was advising the Department at this time. A. Q.
Correct. I don't know if you have a copy of it, it is dated the 9th of May, 1996?
I've had sight of that very recently, but I don't have a copy in front of me right now, but if a copy could be provided.
There is one thing, Mr. Chairman, I just -- in case there is -- just in case there is in a very, very outside chance, there is -- I'm quite happy to assist the Tribunal in any way, but in fact as Mr. Nesbitt is a very valued member of the State's team and by
extension right now, a member of my team, there is nothing untoward in expressing an opinion? CHAIRMAN:
It is my understanding that Mr. McGonigal may have mentioned this to the other counsel in the case, and would I be correct in summarising that although it may not be an aspect over which you enthuse, that you accept that Mr. McGonigal is entitled to broach the matter?
Mr. McGonigal raised this with me before. I don't think Mr. Loughrey will be able to add very much, but certainly I am not objecting to the opinion --.
I don't think you should feel inhibited, Mr. Loughrey.
Sorry, in fairness to Mr. Loughrey, My Lord, Mr. Chairman, I am not in the least bit trying to infiltrate in relation to Mr. Nesbitt's opinion or question it in any way. The document speaks for itself. But what I am suggesting is, that there are aspects of the document which open lines of inquiry for the Tribunal, more so than Mr. Loughrey, but they give a flavour, in so far as Mr. Nesbitt was briefed, as to the concerns which were happening in the Department at that time, and insofar as that is relevant as a line of inquiry, it seems to me that it should be brought to the Tribunal's attention in public session. It is for no reason other than that.
Yes, I accept that Mr. McGonigal.
I am not trying to have Mr. Nesbitt change his seat for another seat or to leave us prematurely either.
I should perhaps just bring it to people's attention, I have mentioned it on a number of occasions, I think My Friend, Mr. Healy -- the Attorney General has communicated directly with the Tribunal. It is a letter from the Attorney General himself. It's a document which I would suggest that the best way to handle it, Sir, would be in the first instance that counsel involved for the various interested parties before the Tribunal might have sight of the particular information which the Attorney General and the view the Attorney General has given to the Tribunal.
Yes, and if it arises, it is probably more appropriate when Mr. Towey comes to give evidence. Very good.
Mr. Loughrey, the only bits that I want to draw your attention to is the second paragraph of the letter itself, where he explains aspects of what his advices are concerned with, and he says: "I am sending my views on the complaint made to the Commission under separate cover. However, I remain of the view that the Minister should not drag his feet in issuing the licence. If there was to be litigation, so be it, but delaying does not achieve any end. Before issuing the licence you should make it clear to Persona's solicitors that he is not holding his hand on the issue of the licence. Formal draft letter has already been discussed with you. My reasoning in this regard is that the Minister is committed to grant the licence. He is now in between two competing interests. One, Esat, they say they are entitled to the licence and the other, Persona, are indicating that the licence should not issue. Delay in issuing the licence would clearly damage Esat. If Persona wish to stop Esat getting the licence they should be required to take appropriate legal action to restrain the issue.
They will then be required to give
undertakings to the parties affected, particularly Esat. This will concentrate their minds, particularly in circumstances where the Commission are likely to be making unsympathetic noises in relation to their complaint." Now, that encapsulates, Mr. Mr. Loughrey, I would suggest, the concern in the Department in relation to the issues that had arisen arising out of the Persona complaint? A.
Yes, Mr. McGonigal, I believe you are correct, but just to state is, I believe I got the thrust of that advice at the time, I don't believe that I actually saw Mr. Nesbitt's letter or the accompanying advice at the time, but I believe I was briefed on the thrust of the advice at the time.
The other bit I want to draw your attention to is the advice itself. It is advices as opposed to an opinion, I acknowledge that, and page 2, in particular the second paragraph there.
analyses why the Minister is concerned about the ownership of shares in the licensee, the only legitimate concern he can have is that if there is a change of ownership, a service that has to be provided will in some way be compromised. I do not think it is tenable to suggest that the licensee has been awarded the licence because of the parties who own the licensee, rather the licensee has been awarded the licence because its plans and proposals were the most meritorious and provided a funding plan which looked feasible. There is no reason why any of these matters have to be compromised by a change in ownership. However, I do accept that there is a possibility that this might occur. It is also a real issue in the mind of the public.â€? In actual fact, I think that mirrors a lot of the views that you had yourself in relation to the licence and the consortia?
Not quite, Mr. McGonigal. No, I -- I am afraid I couldn't go along entirely with that paragraph, because in theory it's possible to decouple the licence in the form of the entity, and of the so -the business plan that the entity had put forward. In practice it is not possible, I think, certainly not in my mind, to decouple ownership entirely. Can I put it in a very practical way is, while I was -- I think I made quite clear I was quite relaxed about the ownership of the financial investors, I didn't think that that amounted to any -- made any serious impact on the strategic or operational effect of rolling out competition in this area. I would have been extraordinarily loath, and I wouldn't have found it acceptable that, if I may put it this way, that the pioneering umph of Esat and the leading edge and demonstrated capacity of Telenor would be assigned elsewhere. It may well be that Esat Digifone as an entity would adhere to the business plan, but if, for instance, without being in any way derogatory, if in fact is, Esat's 40 percent shareholding had been assigned, for instance, to some traditional utility like France Telecom or British Telecom, whose standing would not be in question, I doubt if they would bring the same drive or hunger as background promoters as Esat would have. So, while I can agree, broadly speaking, with this paragraph, and notably where it applies to financial or third party investors, I couldn't -- I think if I am reading Mr. Nesbitt correctly, agree with the totality of the paragraph.â€? 20.
Before proceeding to consider the authorities to which the Tribunal has been referred, it is necessary to explain that Messrs William Fry were in possession of a copy of the opinion due to an inadvertent error on the part of the Tribunal. Prior to circulating public sittings books to affected persons on 22nd November, 2002, for the purposes of its
sittings which commenced on 3rd December, 2002, the Tribunal, at the request of Messrs William Fry, furnished Mr O’Brien with advance copies of documentation relating to the second GSM process in order to assist him in the preparation of a voluntary statement; the Tribunal having been informed that he would otherwise be disadvantaged in making such a statement. The Tribunal in that letter made it clear that it had not yet determined what documentation, from within the documents furnished, would be ventilated at public sittings. 21.
It appears that due to an error on the part of the Tribunal, a copy of the opinion of 9th May was inadvertently included. A copy was not within the public sittings books circulated to all affected persons, including Mr O’Brien, on 22nd November for the purposes of ventilation at public sittings. The error did not come to the attention of the Tribunal until extracts of the opinion were referred to in the course of crossexamination.
The Tribunal has helpfully been referred to the relevant authorities on the waiver of legal professional privilege, and in particular the decisions of the Supreme Court in Hannigan v. Director of Public
Prosecutions2and Fyffes plc v. DCC plc3. The former case involved Judicial Review proceedings in which the applicant (who had been charged with a criminal offence) made certain claims regarding the conduct of the Director. In the course of the proceedings, the applicant sought discovery of a letter from the Director giving directions as to what charge or charges should be proceeded with, and in what form. The Supreme Court recognised that the letter over which privilege had been claimed was relevant, and the issue turned on whether there had been an implied waiver. It was held that there had been an implied waiver of the privilege arising from references not just to the letter, but 2
 1 IR 378  1 IRLM 357
to a summary of its contents, in the replying Affidavit which had been sworn on behalf of the Director. The Supreme Court was of the view that the disclosure was for the purpose of rebutting the applicant’s contention that the charges against him could have been dealt with summarily but that the Director withdrew his consent when it became clear that the applicant did not intend to plead guilty to the offences with which he was charged. In the course of his judgment, Hardiman J. quoted from an extract of Matthews and Malek “Discovery” (London 1992 at paragraph 9.15) where he stated:“The general rule is that where privileged material is deployed in
Court in an interlocutory application, privilege in that and any associated material is waived”. The discussion of that rule in Nenea Krteria Maritime Company Limited v.
Atlantic and Great Lakes Steamships Corporation (1981) Com L.R. 139 was also cited as follows:“The opposite party…must have the opportunity of satisfying
themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question”. Having considered those authorities, Hardiman J. was satisfied that the document had indeed been “deployed” in those proceedings, for what was termed “litigious advantage” 23.
The matter was also considered, albeit in an obiter dictum, of Fennelly J. in Fyffes plc v. DCC plc where discovery of a privileged document was
sought on the grounds that the privilege had been waived by reason of the disclosure of the relevant document to a third party. In the course of his judgment, Fennelly J. made the following observations:“I would conclude, however, that the well-established rule regarding
privilege, whether including a notion of fairness or not, goes no further than the proposition that a party who seeks to deploy his privileged documents by partially disclosing them or summarising their effect so as to gain an advantage over his opponent in the action in which they are privileged, runs a serious risk of losing the privilege. I do not deny that the partial disclosure which has that effect might, in some circumstances, be made to a third party, but it would have to be for the purpose of gaining an advantage in that action”. 24.
IIU/ Mr Desmond have submitted that the references to the opinion by Mr Brennan, Mr Towey and Mr Loughrey in their evidence to the Tribunal, together with the opening of passages from the opinion by Counsel for Mr Denis O'Brien, in the course of Mr Loughrey’s cross-examination, without objection by Counsel for the Department, constituted a “ deployment” of the opinion by the Department, and that this was done for “litigious
advantage”. In that regard, it is contended by IIU/Mr Desmond that the Department witnesses made reference to the opinion to demonstrate that the issue of change of ownership was duly considered by them, and that they had been reassured by the contents of that opinion. It is asserted that that is sufficient to satisfy the “litigious advantage” test. 25.
The Department has submitted that the references in the course of evidence related to the seeking and the coming into existence of the opinion, and that the issue which arose in the course of Mr Loughrey’s cross-examination was whether it was appropriate for Mr Loughrey to
express an opinion on a matter which had already been the subject of Counsel’s opinion. It is asserted that neither of these matters constitutes a partial waiver of privilege. It is further submitted that it was Mr O’Brien’s Counsel who was permitted to read passages from the opinion, and that it is not possible for a third party to waive privilege. Without prejudice to those arguments, it is further contended that if some inaccurate or partial disclosure did take place, it did not occur for “litigious advantage”. In that regard, the Department points out that the Tribunal is an investigative body, and that accordingly there is no lis, there is no litigation, and it follows that there can be no “litigation advantage” within the meaning of the test adopted in the Hannigan case. 26.
The Tribunal has considered the submissions and the relevant authorities. It is clear that what must be determined by the Tribunal is whether the references in the course of the evidence of the departmental witnesses in response to questioning by the Tribunal, together with the non-objection by the Department to passages of the opinion being opened by Counsel for Mr O’Brien in the course of Mr Loughrey’s cross-examination, constituted a “deployment” of the opinion by the Department, and if so, whether that was for the purpose of “litigious advantage”.
Whether there was a “ deployment ” by the Department (i)
References to Opinion in course of evidence in chief.
It has always been recognised, and is undoubtedly the position that legal professional privilege belongs to the party to whom the legal advice has been furnished, which in this instance is the Department. The privilege therefore could not be waived by references to the opinion made by the Tribunal, or Tribunal Counsel, or it seems by departmental witnesses, who could not be presumed to be authorised, expressly or impliedly, to waive
privilege on behalf of the Department4. The references to the opinion in the course of Mr Brennan’s evidence on 4th February, 2003, Mr Towey’s evidence on 20th May, 2003 and Mr Loughrey’s evidence on 21st February, 2003 fall far short of the partial disclosure of the contents of the opinion. Mr Brennan’s evidence was that he had not looked closely at the opinion; Mr Towey’s evidence was that he understood the matter on which advice had been sought had been referred to Counsel, and he acknowledged the evidence of Mr Loughrey; and Mr Loughrey’s evidence was that, having reviewed all of the departmental documents, he realised that the matter had not been addressed in any legal advices which had been furnished to the Department. In the course of the evidence given by the departmental witnesses on those dates, there was no reference whatsoever to the contents of the opinion in question. 28.
The sole reference to the contents of the opinion was made by Counsel for the Tribunal when questioning Mr Brennan on 4th February, 2003 when he commented “…it doesn’t seem that the opinion that was eventually
obtained or pursued dealt with that issue; it seemed to deal mainly with Section 8…”
(It should be observed in passing that the reference to
Section 8 related to an entirely different matter whereby the Department could place restrictions on the future alienation of shares in ESAT Digifone following the issue of the licence). It seems to the Tribunal that there was nothing in the exchanges between Tribunal Counsel and the departmental witnesses that could approximate to a “deployment” of the opinion by the Department.
Non-objection by Counsel for the Department to the putting of passages from the opinion to Mr Loughrey by Counsel for Mr O’Brien.
Schneider v. Leigh (1955) 2 Q.B.195
The opening of passages of the opinion by Mr O’Brien’s Counsel in the course of Mr Loughrey's cross-examination on 27th February, 2003, patently constituted some form of disclosure of the contents of the opinion. The disclosure in this instance was not of course made by the Department, but by Counsel for Mr O’Brien, albeit without objection by Counsel for the Department.
The issue therefore is whether what
occurred was tantamount to a “deployment” of a portion of the opinion by the Department. In the absence of evidence or any suggestion to the contrary, there can be no question but that Counsel instructed to represent the Department in the Tribunal proceedings, as distinct from departmental witnesses, must be deemed to have been authorised to bind the Department in this regard.
That being the case, the matter turns on
whether the actions of Mr O’Brien’s Counsel, without objection by the Department, should be treated as those of the Department. 30.
No suggestion has been made by IIU/Mr Desmond, nor does it appear to the Tribunal that there is any evidence that the Department was complicit in the course taken by Mr O’Brien’s Counsel. Nor was it a result of any act or omission on the part of the Department that Mr O’Brien’s representatives were in possession of a copy of the Opinion, so that there can be no question of any waiver through disclosure to a third party as was considered in the Fyffes plc v. DCC plc case.
Counsel for the Department did not object to what transpired, and what must be addressed is whether the Department’s passivity in the face of the evident intention of Mr O’Brien’s Counsel to disclose a portion of the opinion is sufficient to satisfy the test of “deployment” as contemplated by the Supreme Court. It seems to the Tribunal that in order to constitute a “deployment” within the terms contemplated by the Hannigan case, that which is required is some conscious and deliberate use of selected portions of the privileged document by the party in whom the privilege is
vested, as in the Hannigan case, where the replying affidavit filed in the judicial review proceedings was expressly stated to be sworn on behalf of the Director, and which not only referred to the privileged advices but summarised their contents. Such an affidavit, as in the case of a pleading, would have been carefully constructed, and it must be taken that references to the advices and their contents were deliberately included in the affidavit. In contrast, it seems to the Tribunal that there was nothing deliberate or conscious in the Department’s acquiescence in the disclosure made by Mr O’Brien’s Counsel. Neither the Department nor its Counsel referred to the opinion, quoted from passages of it, had any input into the selection of the passages quoted, nor it seems to the Tribunal had any role in initiating the events that gave rise to the disclosure. In these circumstances, it is the Tribunal’s view that the Department’s mere acquiescence in what occurred lacks the requisite deliberation or involvement to constitute a “deployment” by the Department in the terms contemplated by the Supreme Court in the Hannigan case. 32.
It is also the Tribunal’s view that having regard to the stated purpose for which passages of the opinion were opened by Mr McGonigal, that the matter is put beyond question. What was stated by Mr McGonigal was as follows:“Sorry, in fairness in to Mr Loughrey, my Lord, Mr Chairman, I am
not in the least bit trying to infiltrate in relation to Mr Nesbitt’s opinion or question it in any way. The document speaks for itself. But what I am suggesting is, that there are aspects of the document which open lines of inquiry for the Tribunal, more so than Mr Loughrey, but they give a flavour, insofar as Mr Nesbitt was briefed, as to the concerns which were happening in the Department at that time, and insofar as that is relevant as a line of
inquiry, it seems to me that it should be brought to the Tribunal’s attention in public session. It is for no other reason than that”. It is apparent from what was stated in this regard that Mr McGonigal was not seeking to draw the attention of the Tribunal, or the witness, to the advices comprised in the Opinion, but rather to the matters on which Counsel had been briefed, as indicative of the concerns of the Department. Whether purpose of disclosure was for “ litigious advantage ” 33.
Having already ruled that there was no deployment of the opinion by the Department, it is not strictly speaking necessary for the Tribunal to consider whether such disclosure as occurred was for the purpose of “litigious advantage”. However, as it has been contended that the concept is applicable to the proceedings of a tribunal of inquiry, it seems of sufficient importance to warrant comment.
It is trite law to state that neither the Tribunal itself, nor those assisting it with its inquiries, nor those to whom representation is granted are engaged in litigation.
This principle was recognised in Goodman
International v. Hamilton (No. 1)5 and has been confirmed in numerous subsequent cases. The Tribunal is an investigative body engaged in a purely inquisitorial function.
There is accordingly no lis, there are no
proceedings, and there are no parties, in the sense of plaintiffs or defendants, but merely parties assisting the Tribunal with it inquiries. 35.
In these circumstances, the concept of “litigious advantage” has no direct application to Tribunal proceedings, nor is it a concept that can easily be superimposed on the work of a tribunal. IIU/Mr Desmond have asserted
 2 IR 542
that an advantage equivalent to “litigious advantage” accrued to the Department consequent on the disclosure by Counsel for Mr O'Brien. It is asserted that the references to the opinion were made for the purpose of demonstrating that the issue of change of ownership was duly considered by them, and that they had been reassured by the contents of that opinion. 36.
Even if such a purpose was served by the partial disclosure, in order for that purpose to constitute something akin to “litigious advantage”, it could only be operative, if there was a corresponding disadvantage suffered by IIU/Mr Desmond. There is nothing in the circumstances surrounding the Tribunal’s inquiries which could give rise to any such disadvantage on the part of IIU/Mr Desmond. This, it seems to the Tribunal, arises from the absence of any issue on this point which could potentially impact adversely on IIU/Mr Desmond.
There is no suggestion that the
involvement of IIU/Mr Desmond was not fully known to the Department at that time, nor is there any suggestion that IIU/Mr Desmond had any role in the requesting or furnishing of an opinion on the point. This was solely a matter for the Department, and ultimately it is only material to the Tribunal’s inquiries in terms of the involvement (if any) of the then Minister, Mr Michael Lowry. The O’Callaghan decision 37.
IIU/Mr Desmond are also seeking access to the Opinion on the basis of the principles enunciated by the Supreme Court in the case of
O’Callaghan v. Mahon6.
They contend that the opinion has been
examined by the Tribunal in the course of its private investigations, and as it may impinge on what are characterised as allegations made against them, the fundamental fairness recognised in the O’Callaghan decision dictates that the opinion should be made available to them. 6
 2 IR 32
Department has also provided the Tribunal with submissions addressed to this matter. The Department asserts that the O’Callaghan case has no application to privileged, as opposed to confidential documents.
Department also points to the absence of any concrete explanation by IIU/ Mr Desmond as to what relevance the opinion might have, and how the absence of access to it might adversely affect their position or, with specific reference to the O’Callaghan decision, any respect in which their cross-examination of departmental witnesses has been limited or undermined by not having access to the Opinion. 38.
It is the view of the Tribunal that the principles of the O’Callaghan case have no application to privileged documents, as opposed to those documents which the Tribunal has treated as confidential. It is important in this regard to bear in mind that in the O’Callaghan case the Applicant sought access to previous statements made by a witness, who in evidence made serious allegations against the Applicant, which were not comprised in the witness statement circulated prior to that witness being called to give evidence.
The previous statements which had been
furnished to the Tribunal, in the course of its private investigative work, were required by the Applicant in order to enable the Applicant to crossexamine the witness who had made the allegations for the purpose of vindicating the Applicant’s reputation. The document in question was not privileged, and there is nothing in that judgment which, in the view of the Tribunal, could extend to documents over which a valid claim to privilege subsists. 39.
It has been suggested by IIU/Mr Desmond, in the course of submissions, that an allegation has been made by the Tribunal that they evaded the competition evaluation conducted by the Department, and that in some unenumerated fashion access to the opinion of 9th May might assist them in meeting that allegation. In the first instance, the Tribunal wishes to
correct any misconception on the part of IIU/Mr Desmond or any other person. No such allegation has ever been made by the Tribunal, or by any witness to the Tribunal, nor has such an inquiry been pursued. Rather, what has been inquired into is whether IIU/Mr Desmond went through the evaluation process. The Tribunal’s inquiries, insofar as they have focused on the composition of the ESAT Digifone consortium, which was subject to competitive evaluation, have not been directed to the conduct of IIU/Mr Desmond, but to the conduct of the Department after the involvement of IIU/Mr Desmond emerged, and whether that conduct was influenced, in any respect, by any actions or omissions on the part of the then Minister, Mr Michael Lowry. 40.
In the above connection, it has also been submitted by the Department, with some force, that the issue which falls for determination by the Tribunal is not what was contained in the opinion, but what those who received the opinion believed that it contained.
The Department has
observed that the departmental officials have given evidence regarding what they believed at the time, and that the substantive issue to be addressed by the Tribunal revolves around the credibility of those witnesses. Their credibility has been fully tested both in examination by the Tribunal and in cross-examination, including cross-examination by Counsel on behalf of Mr O’Brien who had access to the entire opinion. 41.
In conclusion, it is the Tribunal’s view that the O’Callaghan decision has no application to privileged documents, and that there are no principles of fundamental fairness recognised in that decision which would warrant a dilution of the Department’s right to exclude from disclosure the privileged communication which it received.
Other legal considerations j ustifying disclosure of Opinion 42.
It has been submitted on behalf of Mr O’Brien, that the purpose for which the opinion of 9th May, 1996 was sought is distinguishable from the investigations
investigations, and that having regard to the Tribunal’s obligation to discover the facts surrounding the issue of the second GSM licence, the balance between the Tribunal’s obligations, and the privilege attaching to the opinion, shifts in favour of disclosure. In this regard, reliance is placed on a decision of the English Court of Appeal of Parry-Jones v. Law
Society7. In response to that aspect of Mr O’Brien’s submissions, the Tribunal has received submissions from the Attorney General on behalf of the Public Interest which are confined to this single issue. The public interest submissions contend that the authority relied upon by Mr O’Brien has no application to a tribunal, such as this Tribunal, established under the provisions of the Tribunal’s of Inquiry (Evidence) Act, 1921, and further that it is clear from the provisions of that Act, and has been authoritatively recognised in this jurisdiction, that the powers conferred on the Tribunal to direct the production of documents are circumscribed by legal professional privilege irrespective of the purpose for which the document may have been generated. 43.
Mr O’Brien’s submission rests on the presumption that the purpose for which the opinion was sought was the protection of the Department in the event of a subsequent Court challenge to the Department’s actions in awarding the licence to ESAT Digifone leading to an Order invalidating the licence.
It is contented that this purpose is distinguishable and
independent of the functions of the Tribunal, which are to inquire pursuant to its Terms of Reference, and to make findings of fact which cannot impact on the validity of the licence. It is further submitted by Mr O’Brien 7
1 (1969) 1 CH 1
that such distinction is comparable to that considered by the English Court of Appeal in the Parry-Jones case in which a solicitor, under investigation by the English Law Society, in its regulatory capacity, unsuccessfully claimed legal professional privilege in respect of documentation over which his client would have been entitled to claim privilege. Lord Denning MR held that the Law Society’s statutory powers of investigation overrode any privilege or confidence that might otherwise have subsisted between Solicitor and client. What is contended by Mr O’Brien is that the inquiry being conducted by the Tribunal is analogous to that which was being conducted by the Law Society in that case. 44.
It is submitted on behalf of the Public Interest that the decision of the English Court of Appeal must be viewed in the light of the statutory framework under which the English Law Society was operating.
Public Interest has drawn the Tribunal’s attention to the passage of the Judgment of Lord Denning MR in which he interpreted the effect of the English legislation and rules under which the Law Society operated, as entitling the Law Society, in certain circumstances, to require a Solicitor to produce his books, as overriding the privilege or confidence that might otherwise subsist between Solicitor and client. Lord Denning M.R. further noted that the documents received could be used for the purposes of the English Law Society’s investigation and for any subsequent application to the Law Society’s Disciplinary Committee but that in all other respects “…the usual rules of legal professional privilege apply, see Section
46(6) of the Act”. 44.
The Public Interest distinguishes that statutory regime from the Tribunals of Inquiry (Evidence) Acts, 1921-2004, being the statutory regime under which the Tribunal operates. In particular, it is asserted, and the Tribunal believes correctly, that by reason of Section 1(3) and Section 1(4) of the
1921 Act, it is clear that persons before a Tribunal of Inquiry are entitled to invoke legal professional privilege on the same basis as parties to proceedings before the High Court. Section 1(3) of the Tribunals of Inquiry (Evidence) Act, 1921 provides:“A witness before any such Tribunal shall be entitled to the same
immunities and privileges as if he were a witness before the High Court or Court of Session”. Section 1(4) of the Act, as inserted by Section 2 of the Tribunal’s of Inquiry (Evidence) (Amendment) Act, 1997, provides:“A person who produces or sends a document to any such Tribunal
pursuant to an Order of that Tribunal shall be entitled to the same immunities and privileges as if he or she were a witness before the High Court.” 45.
It is the Tribunal’s view that it follows from the provisions of both Section 1(3) and Section 1(4) of the 1921 Act, that a person who produces documents to a Tribunal either under compulsion of an Order of the Tribunal, or voluntarily, does so on the same footing, and with the self same immunities and privileges as a party disclosing documentation in the course of High Court proceedings.
Whilst the Tribunal has been referred to authorities, including a decision of the Privy Council in the New Zealand case of B. v.
Auckland District Law Society (PC)8 and of the Court of Appeal in Three Rivers District Council v. Governor and Company of the Bank of England (NO 6). 9, neither of those authorities address the specific 8
(2003) 2 AC 736. (2004) 2 WLR 1065
statutory scheme under consideration, and in particular S.1 (4) of the 1921 Act. 47.
No distinction can be drawn by reference to the purpose for which the privileged communication was made, as this would be contrary to the decision of the Supreme Court in the case of Smurfit Paribas Bank
Limited v. AAB Export Finance Limited (No. 1)10 in which it was established that legal professional privilege is not confined to communications generated in contemplation of furtherance of legal proceedings but is applicable to all communications containing legal advice The principle was stated as follows by Finlay C.J.:“…where it is established that a communication was made between
a person and his lawyer acting for him as a lawyer for the purposes of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client” at p.478. 48.
It has never been doubted by the Courts in this jurisdiction that persons before Tribunals of Inquiry are entitled to invoke legal professional privilege on the same basis as parties to proceedings before the High Court.
The decision of the High Court in Miley v. Flood11, although
involving the unsuccessful invocation of a right to legal professional privilege in relation to the identity of the applicant solicitor’s client, proceeded on the footing that a person compelled to produce documentation to a Tribunal of Inquiry was entitled to invoke the protection of legal professional privilege. In the course of his Judgment, Kelly J. reiterated the conclusion which he had reached in Duncan v. Governor of
 1R 469  2 IR 50.
Portlaoise Prison12 (which decision he noted had been upheld by the Supreme Court in an ex tempore decision 13) that:“Legal professional privilege is more than a mere rule of evidence.
It is a fundamental condition on which the administration of justice as a whole rests”.14 49.
Kelly J. also noted in the course of his judgment that:“Legal professional privilege is also protected by the European
Convention on Human Rights. In Niemitez v. Germany (1992) 16 EHRR 97, the European Court of Human Rights took the view that a warrant which permitted the search of a lawyer’s officer was ‘not necessary in a democratic society’.
The power, which took no
account of any special protection which might be desirable in relation to the lawyer’s premises was disproportionate to its purposes.
The Court took the view that where a lawyer was
involved ‘..An encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention’”. 50.
Similarly, the invocation of legal professional privilege on the self same terms as applicable in Court proceedings, was also recognised, and upheld in a further decision of Kelly J. in Irish Haemophilia Society v.
The Tribunal’s attention has also been drawn by the Public Interest to passages from the leading English text on privilege, Passmore 16, in which,
 1 IR 558 Unreported Supreme Court 5th March, 1997, 14 At p65. 15 Unreported 16th May, 2001. 16 Passmore Privilege, Second Edition, 2006 at page 13. 13
having noted that Parry-Jones was almost certainly the first reported decision of an English Court dealing with the assertion of a claim of privilege outside the confines of a Courtroom, it is observed that statutory powers that have conferred rights of compulsory evidence gathering do not appear to have raised issues over privilege:
“Either because the nature of things for which the warrant authorised a search to be undertaken made it unlikely they would be found in a lawyer’s office, or because in virtually every English statute in which compulsory information gathering powers have been given to regulatory bodies that operate extra-judicially. Parliament had (with very few exceptions) expressly provided (in what are referred to in this work as ‘privilege preservation provisions’) that such statutory powers do not include the right to seek privileged materials or documents or statements that evidence them”. Section 1(3) of the 1921 Act is specifically referred to, in a footnote to the text, as containing privilege preservation provisions, and the Tribunal accepts the submission on behalf of the Public Interest that Passmore accordingly recognises that the Parry-Jones decision has no application to a Tribunal of Inquiry having regard to the provisions of Section 1 of the 1921 Act. 52.
Finally, it has been submitted on behalf of the Public Interest that the reasoning of the Court of Appeal in the Parry-Jones case has recently been doubted by the English House of Lords in the recent case of R.
(Morgan Grenville and Company Limited) v. Special Commissioners17, and that this has followed the recognition by the English Courts that privilege is more than a rule of evidence, but has a substantive content, as already 17
(2002) 2 WLR 1299
recognised by the Courts in this jurisdiction as in Miley v. Flood and
Duncan v. Governor of Portlaoise Prison. It is accordingly submitted that even if the Parry-Jones was applicable to the facts under consideration by the Tribunal, it is doubtful that it correctly reflects the law in this jurisdiction. 53.
Having regard to all of the foregoing consideration, the Tribunal is satisfied that it is clear, by virtue of Section 1 of the Tribunals of Inquiry (Evidence) Act, 1921, that a party appearing before a tribunal is entitled to the self same privileges (including legal professional privilege) as a party to litigation before the High Court.
Section 1(3) and Section 1(4), both
individually and collectively, constitute “privilege preservation provisions” as described by Passmore. The Tribunal is bound by the decision of the Supreme Court in the Smurfit Paribas Case, so that the purpose for which the privileged communication was made is immaterial to the rights of the person invoking the privilege, provided there is a validly subsisting claim to privilege. It is further clear to the Tribunal that the Parry-Jones case, irrespective of its status in Irish law, has no application to a tribunal of inquiry established under the 1921 Act. 54.
In summary, it is the Ruling of the Tribunal that as there has been no waiver of privilege by the Department over the Opinion of 9th May, 1996, that as the decision in the case of O’Callaghan v. Mahon is not applicable to privileged documents, and that as the purpose for which the opinion was sought has no bearing on the Department’s right to claim privilege before the Tribunal, that access to the Opinion must be denied.