Re Dunne's Payments

• Jurisdiction: Cayman Islands
• Judge: (Patterson, Ag. J.)
• Judgment Date: 30 June 1997
• Court: Grand Court (Cayman Islands)
• Date: 30 June 1997

Grand Court

(Patterson, Ag. J.)

IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM A TRIBUNAL OF INQUIRY (DUNNE”S PAYMENTS)

A. Bueno, Q.C. and C.G. Quin for the applicant;

R.D. Alberga, Q.C. and D.W.B. Myers for the witness.

Cases cited:

(1) Goodman Intl. v. Hamilton, [1992] 2 I.R. 542, applied.

(2) Imacu Ltd., In re, 1989 JLR 17, followed.

(3) McDonald v. Bord na gCon, [1965] I.R. 217.

(4) Norway”s (State of) Applications (Nos. 1 & 2), In re, [1990] 1 A.C. 723; [1989] 1 All E.R. 745, applied.

(5) Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1977] 3 All E.R. 703; on appeal, [1978] A.C. 547; [1978] 1 All E.R. 434, dicta of Lord Diplock applied.

(6) Worldwide Financial Holding v. CITEL, 1994-95 CILR 391, followed.

Legislation construed:

Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.1: The relevant terms of this section are set out at page 339, lines 28–40.

s.9(1): The relevant terms of this sub-section are set out at page 340, lines 5–6.

Tribunals of Inquiry (Evidence) Act 1921 (11 & 12 Geo. V, c. 7), s.1(1); The relevant terms of this sub-section are set out at page 337, line 32 – page 338, line 8.

s.1(2) (as amended by the Tribunals of Inquiry (Evidence) (Amendment)

Act, 1979 (No. 3), s.3): The relevant terms of this section are set out at page 338, lines 27–41.

Tribunals of Inquiry (Evidence) Acts 1921 and 1979 Order, 1997: The relevant terms of this order are set out at page 334, line 44 – page 335, line 13.

Tribunals of Inquiry (Evidence) (Amendment) Act, 1979 (No. 3), s.4: The relevant terms of this section are set out at page 338, lines 11–15.

Evidence-assistance to foreign court-‘court or tribunal’-requesting body must be ‘court or tribunal’ under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(a) as well as recognized adjudicatory body under law of requesting state

Evidence-assistance to foreign court-‘court or tribunal’-under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(a) ‘tribunal’ to be adjudicatory not merely investigatory, with power to compel attendance of witnesses, punish non-compliance, implement own recommendations and impose sanctions

Evidence-assistance to foreign court-‘civil proceedings’-all non-criminal proceedings in ‘court or tribunal’ are civil proceedings for purposes of Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1(b)

The applicant applied for an order under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 for the obtaining of evidence for use before a tribunal of inquiry in the Republic of Ireland.

The ex parte application was made pursuant to a letter of request from a tribunal of inquiry established by resolution of the Irish Parliament to investigate payments by a company and its owner to members of the Parliament over a 10-year period. The application was opposed by a witness from whom evidence was sought.

The applicant submitted that (a) for the purposes of the exercise of the court”s discretion under the 1978 Order, the Irish tribunal of inquiry was a ‘court or tribunal’ within the meaning of s.1(a) of the Schedule to the Order since (i) that question was to be determined in accordance with the laws of the requesting country, namely those of the United Kingdom, whose Parliament had originally passed the 1921 Tribunals of Inquiry (Evidence) Act giving the Irish Parliament power to establish such tribunals, and there could be no conflict between the laws of the United Kingdom and the Cayman Islands; (ii) the English Evidence (Proceedings in Other Jurisdictions) Act 1975, the provisions of which were applied to the Cayman Islands by the 1978 Order, should be construed in accordance with the 1921 Act and bearing in mind the scheme of legislation in place at that time for the obtaining of assistance from foreign courts; and (iii) the 1921 Act conferred on tribunals of inquiry the power of the High Court, inter alia, to issue a letter of request, with the clear intention that such requests should be complied with; and (b) the request also satisfied the requirement in s.1(b) of the Schedule to the 1978 Order that civil proceedings should have been or were to be commenced in the requesting court, since the inquiry (not being a criminal proceeding) constituted ‘proceedings in any civil or commercial matter’ as defined in s.9(1).

The witness submitted in reply that (a) the tribunal of inquiry did not constitute a court or tribunal for the purposes of s.1(a) of the Schedule since (i) although its status was to be determined according to the law of the requesting country, it must in any event be an adjudicatory body recognized by Cayman law; (ii) whilst the tribunal had power to compel the attendance of witnesses and the production of documents, it had no power of its own to punish non-compliance, its findings would not be legally binding and it could take no action based on them; and (iii) in any event, whatever were the powers conferred by the 1921 Act on the tribunal, neither that Act nor the Order of the Irish Prime Minister by which this tribunal had been set up had extra-territorial power to ensure that letters of request were acceded to; and (b) since the tribunal of inquiry was not a ‘court or tribunal’ within the meaning of s.1(a), the matter before it could not amount to ‘civil proceedings.’

Held, dismissing the application:

(1) The court could not comply with the letter of request from the tribunal of inquiry unless it were satisfied not only that the tribunal was a recognized adjudicatory body under the law of Ireland, but also that it was a ‘court or tribunal’ within the meaning of s.1(a) of the Schedule to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands)

Order 1978 (page 339, lines 14–21; page 341, lines 36–40; page 342, lines 11–14).

(2) It was in fact not a ‘court or tribunal’ for the purposes of s.1(a), since, although the Tribunals of Inquiry (Evidence) Act 1921 conferred investigative powers on any tribunal set up by resolution of the Irish Parliament, the role of the tribunal was not adjudicatory. Whilst it had powers to require the attendance of witnesses and the production of documents, it relied on the Irish courts to enforce its orders. It would report to its own Parliament and would make recommendations but would not implement them or impose sanctions of its own. Accordingly, it was not a ‘court or similar tribunal’ as required by Cayman law or, indeed, an adjudicatory body under Irish law (page 341, lines 12–22; page 343, lines 21–32; page 345, line 44 – page 346, line 7; page 346, line 41 – page 347, line 9; page 349, lines 5–17).

(3) Since it did not qualify as such a ‘court or tribunal’ as required by s.1(a), it was unnecessary to consider whether the request met the second condition precedent in s.1(b), namely that ‘civil proceedings’ had been or were to be commenced before it. However, if the tribunal were a court of law, the inquiry before it would constitute civil proceedings both under Irish law, and-since all proceedings other than criminal proceedings were ‘proceedings in any civil or commercial matter’ as described in s.9(1)-under Cayman law (page 349, lines 5–17).

PATTERSON, Ag. J.: This is an ex parte application with notice for
an order for evidence to be obtained in the Cayman Islands for the
15	purpose of giving effect to a request from a tribunal of inquiry appointed
by instrument of An Taoiseach of Ireland on February 7th, 1997 (‘the
tribunal’). The request is directed to the Grand Court of the Cayman
Islands, British West Indies, and is under the hand of ‘The Honourable
Mr. Justice Brian McCracken, Judge of the High Court of Ireland and sole
20	member of the above-mentioned tribunal’ on May 12th, 1997. The
request is authorized by the tribunal”s order made on the same day and it
seeks the assistance of the Grand Court in obtaining evidence from a
number of witnesses named therein, including John Furze, who is the
only person opposing the application (‘the opposer’).
25	I understand that each of the other witnesses mentioned in the letter of
request has been served with notice of this application and that they are
all represented by the law firm of Maples & Calder. Mr. Bueno, Q.C.
states that the tribunal will abide by the final result as opposed by the
witness Furze alone and whatever order is made, all parties will consider
30	themselves bound by it.
Background
On February 6th, 1997 the Dáil Éireann and the Seanad Éireann (the
lower and upper Houses of Parliament of the Republic of Ireland)
35	resolved to set up a tribunal of inquiry in the following terms:
‘Bearing in mind serious public concern about alleged payments
made and benefits conferred by, or on behalf of, Dunnes Holding
Co., other associated companies or entities and/or Mr. Ben Dunne
and/or companies or trusts controlled directly or indirectly by
40	members of the Dunne Family between January 1st, 1986 and
December 31st, 1996, to persons who were members of the Houses
of the Oireachtas during that period, or relatives or connected
persons as defined in the Ethics in Public Office Act, 1995, to
political parties or to other public representatives or public
45	servants.

And noting the interim report of the independent person
appointed pursuant to an agreement dated December 9th, 1996,
made between the Government and Dunnes Holding Co.
Resolves that it is expedient that a tribunal be established, under
5	the Tribunals of Inquiry (Evidence) Act 1921, as adapted by or
under subsequent enactments, and the Tribunals of Inquiry
(Evidence) (Amendment) Act, 1979, to inquire

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