The Flood tribunal failed at the Supreme Court yesterday to overturn a High Court ruling in favour of Dublin West TD Mr Liam Lawlor.
The decision is expected to have considerable implications for the work of the tribunal. In his judgment, Mr Justice Murphy remarked it may be necessary to "examine afresh" the manner in which the constitutional rights of witnesses before a tribunal require protection.
It was inconceivable that witnesses called to give evidence about a tribunal's subject matter should be afforded the same rights as defendants in civil or criminal proceedings, the judge said.
An inquiry did not constitute legal proceedings of persons appearing before it. If that was the case, it would be impossible to conduct any inquiry.
The five-judge Supreme Court unanimously upheld a decision of the High Court to quash orders, on the grounds they were made without jurisdiction. The orders directed Mr Lawlor to appear before tribunal lawyers in private session and answer questions and swear an affidavit detailing any companies in which he had an interest between 1987 and 1994.
The High Court had refused Mr Lawlor's application to quash a third tribunal order directing him to make discovery of documents relating to payments made to him by Arlington Securities plc and Mr Thomas Gilmartin and documents relating to Mr Lawlor's bank and building society accounts between 1987 and 1994.
The tribunal had appealed against the High Court's findings regarding the two orders in favour of Mr Lawlor.
Dismissing the appeal, the Chief Justice, Mr Justice Hamilton, said the fundamental issue was the jurisdiction of the tribunal chairman to make the orders. The resolution of that question depended on the interpretation of Section 4 of the Tribunals of Inquiry Evidence (Act) 1979, which says: "A tribunal may make such orders as it considers necessary for the purpose of its functions and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court or a judge of that court in respect of the making of orders."
The tribunal chairman had said the orders were necessary for his function and contended he had jurisdiction to make them. But, the Chief Justice found, if the legislature had intended such powers be given to a tribunal chairman, it would have stated so in clear and unambiguous terms. Section 4 must be interpreted in the context of the relevant legislation and, as so interpreted, it did not give to a tribunal powers in excess of those vested in the High Court.
Also dismissing the appeal, Ms Justice Denham said Section 4 was clear and unambiguous and its ordinary sense should be applied. The tribunal was not given greater powers than a High Court judge and had no jurisdiction to make the orders complained of.
Mr Justice Murphy also dismissed the appeal on the grounds of lack of jurisdiction in the tribunal chairman to make the orders. Mr Justice Barrington and Mr Justice Keane also dismissed the appeal. Costs were awarded to Mr Lawlor.
