A High Court challenge by the property company Bovale Developments Ltd, its director, Mr Thomas Bailey, and his wife, Caroline, to the Flood tribunal's decision to investigate their financial affairs in public has failed.
The Baileys and Bovale had claimed it would be a "disproportionate interference" with their constitutional rights for the tribunal to hear evidence of their personal financial affairs in public.
The President of the High Court, Mr Justice Morris, yesterday rejected that claim. He put a two-day stay on his decision, to allow the Baileys time to consider an appeal to the Supreme Court.
He said it was of fundamental importance that, where possible, the proceedings of a tribunal of inquiry should be conducted in public. The effective administration of a tribunal would be impossible if it were compelled at every turn to justify its actions before the High Court.
"The very reason for the establishment of such a tribunal is that urgent matters causing grave public disquiet need to be investigated in order to root out the wrongdoing or to expose the concerns as misplaced," he said.
"The public concern and disquiet must be met either by establishing facts which give rise to the concern or disquiet or alternatively establish that the fears for concern and disquiet were groundless." In his view, no case had been made by the applicants to justify granting any of the orders sought and he accordingly refused them.
In judicial review proceedings, the court had been asked for several orders and declarations, including a declaration that the tribunal did not have jurisdiction to require disclosure by the applicants of a schedule of assets.
The applicants also sought an order quashing a tribunal decision permitting examination of them in relation to their personal financial affairs.
Mr Justice Morris said that in a sworn statement to the tribunal dated October 12th, 1998, Mr James Gogarty had made certain allegations against Mr Michael Bailey, among others. For the purpose of the present proceedings, two of those allegations were of particular importance.
The first related to an alleged payment to the former minister, Mr Ray Burke, by Mr Michael Bailey, the second to an alleged payment by Mr Bailey to Mr Gogarty. Mr Bailey provided a statement to the tribunal on January 11th, 1999.
In it, he contested many of the allegations made by Mr Gogarty and in particular denied he had ever made the Burke payment. He also denied having paid money to Mr Gogarty in exchange for his agreement "to forget about pursuing proceedings against JMSE and simply to enjoy life".
Mr Justice Morris noted that on January 20th last the tribunal wrote to solicitors for the Baileys and Bovale seeking certain financial details under six headings. He added that the primary submission of the applicants was that the proposed examination of them was not relevant to the work of the tribunal under its terms of reference.
In the alternative, they argued that even if relevant, having regard to the applicants' right to privacy, the evidence was so tangentially relevant that it ought not to be admitted.
The judge said the function of the High Court on an application for a judicial review was limited to determining whether the impugned decision was legal, not whether it was correct. The freedom to exercise a discretion necessarily entailed the freedom to get it wrong; this did not make the decision unlawful. Consideration of the alternative position could only affirm this view.
It was not the duty of the High Court to whittle down the discretion of tribunals, with the inevitable deleterious effects that would have on the effective discharge of the important public tasks with which tribunals of inquiry were burdened.
Mr Justice Morris said it had been argued that an examination of the applicants' accounts after June 1989 could have no possible relevance to the Burke payment. Mr Justice Flood took the view - legitimately, it seemed to him - that the financial affairs of each of the applicants and of Mr Michael Bailey were so enmeshed as to be inseparable.
The fact that the Burke payment was alleged to have been made in June 1989 did not mean traces of it could only be found in accounts before that date. If such a payment was made out of funds available to Mr Thomas Bailey, Mr Michael Bailey or Ms Caroline Bailey, it might have been thought necessary to reimburse that outlay from company funds.
Mr Justice Morris said the tribunal had taken the view that the financial affairs of Mr Michael Bailey could not be dissociated from the affairs of the applicants, and in those circumstances it was imperative that the tribunal pursue its proposed inquiry.