IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM A TRIBUNAL OF INQUIRY (DUNNE’S PAYMENTS) 30-June-1997
[1997 CILR 330]
IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM A TRIBUNAL OF INQUIRY (DUNNE’S PAYMENTS)
GRAND COURT (Patterson, Ag. J.): June 30th, 1997
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.
1997 CILR 331
  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)
1997 CILR 332
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).
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)
1997 CILR 333
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.
A. Bueno, Q.C. and C.G. Quin for the applicant;
R.D. Alberga, Q.C. and D.W.B. Myers for the witness.

           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. 
1997 CILR 334

          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 urgently into, and  
      report to the Clerk of the Dáil and make such findings and  
      recommendations as it sees fit, in relation to the following definite  
10      matters of urgent public importance: 
                          (a)    All payments in cash or in kind directly or indirectly  
              whether authorized or unauthorized within or without the  
              State which were made to or received by 
                                  (i)    persons who were between January 1st, 1986 and December  
15                  31st, 1996, members of the Houses of the Oireachtas, 
                                  (ii)    their relatives or connected persons as defined in the  
                  Ethics in Public Office Act, 1995, 
                                  (iii)    political parties, 
                          from Dunnes Holding Co. and/or any associated enterprises  
20              as defined in the Schedule hereto and/or Mr. Ben Dunne or  
              any person on his behalf or any companies, trusts or other  
              entities controlled directly or indirectly by Mr. Ben Dunne  
              between January 1st, 1986 and December 31st, 1996, and  
              the considerations, motives and circumstances therefor; 
25                          (b)    Such further matters as Dáil Éireann and Seanad Éireann  
              might by further resolution consider appropriate to refer to  
              the tribunal because they require further investigation,  
              relating to other payments made to ‘relevant persons or  
              entities’ within the meaning of the agreement dated  
30              December 9th, 1996, made between the Government and  
              Dunnes Holding Co., following receipt by the Ceann  
              Comhairle and the Cathoirleach of Seanad Éireann of any  
              further report from the independent person appointed  
              pursuant to the said agreement whereupon such report shall  
35              be laid before both Houses of the Oireachtas immediately  
              on its receipt.” 
          The schedule follows, in which “associated enterprises,” as used in the  
      text of the resolutions, is defined, but that is not germane to the outcome  
      of this application, and I need not set it out. 
40          In pursuance of these resolutions and in exercise of the powers  
      conferred on An Taoiseach by s.1 (as adapted by or under subsequent  
      enactment) of the Tribunals of Inquiry (Evidence) Act 1921, the  
      following Order was made: 
                  “1. This Order may be cited as the Tribunals of Inquiry  
45          (Evidence) Acts 1921 and 1979, Order, 1997. 
1997 CILR 335

          2. A tribunal is hereby appointed to enquire urgently into and  
      report and make such findings and recommendations as it sees fit to  
      the Clerk of the Dáil on the definite matters or urgent public  
      importance set out at paras. (a) and (b) of the resolutions passed by  
5      Dáil Éireann and Seanad Éireann on February 6th, 1997. 
          3. The Honourable Mr. Justice Brian McCracken, a Judge of the  
      High Court, is hereby nominated to be the sole member of the  
      tribunal. 
          4. The Tribunals of Inquiry (Evidence) Act 1921 (as adapted by or  
10      under subsequent enactments) and the Tribunals of Inquiry  
      (Evidence) (Amendment) Act, 1979, shall apply to the Tribunal. 
          GIVEN under my Official Seal, this February 7th, 1997. 
          TAOISEACH.” 
          It is important to note that the Order has three distinct functions. First, it  
15      is this Order that appoints the tribunal, thus giving effect to the  
      resolutions of the Houses of Parliament. Secondly, it nominates the sole  
      member of the tribunal. Thirdly and most importantly, it provides that  
      “the Tribunal of Inquiry (Evidence) Act 1921 (as adapted by or under  
      subsequent enactments) (‘the 1921 Act’) and the Tribunals of Inquiry  
20      (Evidence) (Amendment) Act 1979 shall apply to the tribunal.” 
          The 1921 Act “makes provision with respect to the taking of evidence  
      before and the procedure and powers of certain Tribunals of Inquiry.” The  
      Act (with its adaptations and amendments) is in force in Ireland today and  
      Mr. Bueno, Q.C. has relied on it to a very large extent in putting forth his  
25      arguments in support of the application. 
          It is interesting to trace the history of the legislation relevant to this  
      application and in particular the 1921 Act, and I can do no better than to  
      adopt and quote the evidence contained in the affidavit in support of the  
      application, sworn by Gerald William Hogan, Barrister-at-Law, on May  
30      16th, 1997. This is how he puts it: 
                  “(1) After the passing by both the Parliament of Great Britain and  
          the Parliament of Ireland of the Act of Union 1800, the then  
          Kingdoms of Great Britain and the Kingdom of Ireland were united  
          into one kingdom under the name of the Kingdom of Great Britain  
35          and Ireland. By the third article of the Act of Union it was enacted  
          that the United Kingdom ‘be represented in one and the same  
          Parliament to be styled the Parliament of the United Kingdom of  
          Great Britain and Ireland.’ 
          (2) Following the Act of Union (which came into force in 1801)  
40      until the establishment of the Irish Free State on December 6th,  
      1922, the Parliament of the United Kingdom was the sole legislature  
      for the entirety of Ireland. During this period all legislation enacted  
      by the Parliament of the United Kingdom applied to Ireland, save  
      where this was expressly excluded by the terms of the legislation  
45      itself. The 1921 Act not only contains no such express exclusion for 
1997 CILR 336

      Ireland, but from its terms it was clearly intended to apply to  
      Ireland. There is, in my opinion, no question but that the 1921 Act  
      applied to Ireland as much as to anywhere else in the United  
      Kingdom. 
5          (3) The 1921 Act received the Royal Assent and came into force  
      on March 24th, 1921. 
          (4) In December 1921, the Government of the United Kingdom  
      reached an accommodation with the representatives of the Irish  
      people whereby as a result of that treaty, the then British  
10      Government and the (Irish) Provisional Government took steps to  
      establish the Irish Free State. Legislative effect was given to that  
      treaty by the Irish Free State (Agreement) Act 1922 by the British  
      Parliament and this Act received Royal Assent on March 31st, 1922. 
          (5) The ratification in Ireland was more complex. The treaty was  
15      approved by Dáil Éireann on January 7th, 1922 (which was,  
      however, at that stage regarded by the British as an illegal assembly)  
      and by the House of Commons of Southern Ireland on January 14th,  
      1922 (as was required by art. 18 of the treaty). The House of  
      Commons for Southern Ireland had been created by the Government  
20      of Ireland Act, 1920 and had been vested with certain legislative  
      powers. In fact, this body met only once (namely to approve the  
      treaty) and was later dissolved by proclamation of the Lord  
      Lieutenant on May 27th, 1922. It never exercised any of its  
      legislative powers. 
25          (6) Following elections held in June 1922, Dáil Éireann (the Irish  
      Parliament) sitting as a constituent assembly passed the Constitution  
      of the Irish Free State (Saorstát Éireann) Act, 1922. Parallel  
      legislation was enacted by the British Parliament to give effect to  
      these changes: Irish Free State Constitution Act 1922. 
30          (7) Article 73 of the Constitution provided that— 
                          ‘subject to this Constitution and to the extent that they are not  
              inconsistent therewith, the laws in force in the Irish Free State  
              (Saorstát Éireann) at the date of the coming into operation of  
              this Constitution shall continue to be of full force and effect  
35              until the same or any of them shall have been repealed or  
              amended by enactment of the Oireachtas.’ 
                  (8) The passing and adoption of the Constitution by Dáil Éireann  
          sitting as a constituent assembly and by the British Parliament was  
          announced on December 6th, 1922 by proclamation of His Late  
40          Britannic Majesty King George V. In accordance with art. 83 of the  
          said Constitution, the Constitution itself came into force on that day. 
          (9) The 1921 Act was in force on the said date and was, therefore,  
      continued in full force and effect by virtue of art. 73 of the said  
      Constitution. 
45          (10) In 1937, in a plebiscite held under the provisions of the 
1997 CILR 337

      Plebiscite (Draft Constitution) Act, 1937, the people of the then Irish  
      Free State (Saorstát Éireann) approved a new Constitution which  
      had been approved by Dáil Éireann. The said Constitution was  
      approved by vote of the people on July 1st, 1937 and by virtue of  
5      art. 62(1) thereof came into operation on December 27th, 1937. The  
      Irish Free State ceased to exist on the coming into force of the new  
      Constitution. 
          (11) The Constitution of 1937 is and remains the fundamental law  
      of Ireland. Article 50 thereof provides that— 
10                          ‘subject to this Constitution and to the extent that they are not  
              inconsistent therewith, the laws in force in Saorstát Éireann  
              immediately prior to the date of the coming into operation of  
              this Constitution shall continue to be of full force and effect  
              until the same or any of them shall have been repealed or  
15              amended by enactment of the Oireachtas.’ 
                  The 1921 Act was in force immediately prior to December 27th,  
          1937 and, accordingly, continued to be of full force and effect after  
          the coming into force of the said Constitution of 1937. 
          (12) The 1921 Act is not and has not been inconsistent with either  
20      the Constitution of 1922 or the Constitution of 1937 and has not been  
      repealed. The 1979 Act, which amended the 1921 Act in respects  
      which are not material, clearly reflects this. The 1921 Act (as  
      amended) therefore continued and continues in full force and effect.” 
           
25      The powers of the tribunal 
          Undoubtedly the tribunal has been appointed in accordance with the  
      laws of Ireland. Its mandate is to inquire into a definite matter described  
      as of urgent public importance, the details of which I have already stated.  
      The order appointing the tribunal clearly stipulates that the 1921 Act shall  
30      apply. For the purposes of this application, s.1(1) of the 1921 Act is  
      material, and it reads as follows: 
                  “Where it has been resolved (whether before or after the  
          commencement of this Act) by both Houses of Parliament that it is  
          expedient that a tribunal be established for inquiring into a definite  
35          matter described in the Resolution as of urgent public importance,  
          and in pursuance of the Resolution a tribunal is appointed for the  
          purpose either by His Majesty or a Secretary of State, the instrument  
          by which the tribunal is appointed or any instrument supplemental  
          thereto may provide that this Act shall apply, and in such case the  
40          tribunal shall have all such powers, rights, and privileges as are  
          vested in the High Court, or in Scotland the Court of Session, or a  
          judge of either such court, on the occasion of an action in respect of  
          the following matters:- 
                          (a)    The enforcing the attendance of witnesses and examining  
45              them on oath, affirmation, or otherwise; 
1997 CILR 338

                          (b)    The compelling the production of documents; 
                          (c)    Subject to the rules of court, the issuing of a commission or  
              request to examine witnesses abroad; 
                  and a summons signed by one or more of the members of the  
5          tribunal may be substituted for and shall be equivalent to any formal  
          process capable of being issued in any action for enforcing the  
          attendance of witnesses and compelling the production of  
          documents.” 
          Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979  
10      is of some relevance also. It reads as follows: 
                  “A tribunal may make such orders as it considers necessary for  
          the purposes 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  
15          orders.” 
          What then are the powers of the tribunal under the provisions of the 1921  
      Act with respect to its function of taking evidence? The tribunal has  
      power to issue subpoenae for witnesses to attend and give evidence and to  
      produce documents. On their attendance, the tribunal has the power to  
20      examine them on oath, affirmation or otherwise (s.1(1)(a) and (b)). But  
      unlike the powers vested in the High Court or a judge thereof, the tribunal  
      has no statutory or inherent power to punish anyone who disobeys its  
      subpoena or other process lawfully issued. The power to punish any such  
      person rests in the District Court and the only power that the tribunal has  
25      in that regard is that it may bring the matter to the attention of the District  
      Court. Section 1(2) of the Act as amended by the 1979 Act, s.3, provides  
      as follows: 
                  “If a person— 
                          (a)    on being duly summoned as a witness before a tribunal  
30              makes default in attending; or 
                          (b)    being in attendance as a witness refuses to take an oath or  
              to make an affirmation when legally required by the  
              tribunal to do so, or to produce any documents…in his  
              power or control legally required by the tribunal to be  
35              produced by him, or to answer any question to which the  
              tribunal may legally require an answer; or 
                          … 
                          (f)    does or omits to do any other thing and if such doing or  
              omission would, if the tribunal had been the High Court,  
40              have been contempt of that Court; 
                  the person shall be guilty of an offence.” 
          Section 1(2A)(b) reads: “A justice of the District Court shall have  
      jurisdiction to try summarily an offence under this section….” 
          The power that is most material to this application, however, is that set  
45      out at s.1(1)(c): “Subject to rules of court, the issuing of a commission or 
1997 CILR 339

      request to examine witnesses abroad.” It is in the exercise of this power  
      that the tribunal ordered, on May 12th, 1997, that “a letter of request do  
      issue addressed to the Grand Court of the Cayman Islands, British West  
      Indies, to make such provision as shall appear to that court to be fit and  
5      proper for the purpose of examining under oath” certain specified  
      persons, and for the production of documents by them. On that day the  
      letter of request was duly issued and the ex parte application with notice  
      supported by affidavit was filed in the Grand Court. 
           
10      The jurisdiction of the Grand Court 
          The jurisdiction of the Grand Court to consider a request from a  
      foreign court or tribunal and to make an order for persons within the  
      jurisdiction to assist the foreign court or tribunal by giving oral or  
      documentary evidence for proceedings before it is statutory. The relevant  
15      legislation is: First, the Evidence (Proceedings in Other Jurisdictions)  
      (Cayman Islands) Order 1978 which, by s.3, extends to the Cayman  
      Islands the provisions of “ss. 1-3 and 5-10 of, and Schedule 2 to, the  
      Evidence (Proceedings in Other Jurisdictions) Act 1975, with the  
      exceptions, adaptations and modifications specified in the Schedule” to  
20      the said Order (“the 1978 Order”). Secondly, O.70 of the Grand Court  
      Rules, which is mainly procedural in content. 
          The 1978 Order came into operation on January 10th, 1979, and  
      together with O.70 of the Grand Court Rules, they now provide the law  
      and procedure in connection with the obtaining of evidence in the  
25      Cayman Islands for use in proceedings in a foreign court. For the  
      purposes of this application, the material legislation is set out in s.1 of  
      the Schedule to the 1978 Order, which reads: 
                  “Where an application is made to the Grand Court for an order for  
          evidence to be obtained in the Cayman Islands, and the court is  
30          satisfied— 
                          (a)    that the application is made in pursuance of a request  
              issued by or on behalf of a court or tribunal (‘the  
              requesting court’) exercising jurisdiction in a country or  
              territory outside the Cayman Islands; and 
35                          (b)    that the evidence to which the application relates is to be  
              obtained for the purposes of civil proceedings which either  
              have been instituted before the requesting court or whose  
              institution before that court is contemplated, 
                  the Grand Court shall have the powers conferred on it by the  
40          following provisions of this Act.” 
          These provisions make it clear that there are two conditions precedent  
      that must be fulfilled before the court can exercise its jurisdiction to grant  
      an application for an order for evidence to be obtained in the Cayman  
      Islands. The existence of the conditions precedent are not in dispute. Both  
45      parties agree that both conditions in s.1 must be satisfied. But beyond 
1997 CILR 340

      this, the battle-lines are drawn. The central issues are twofold. First,  
      whether the request is made by a tribunal within the meaning of the words  
      “court or tribunal” in s.1(a) of the Schedule to the 1978 Order. And  
      secondly, whether the requested evidence is for the purposes of “civil  
5      proceedings” (defined in s.9(1) as “proceedings in any civil or  
      commercial matter”) within the meaning of s.1(b) of the Schedule. I will  
      consider the issues in turn. 
           
      The first issue: Meaning of “court or tribunal” 
10          Mr. Bueno, Q.C. submits that “ineluctable logic and common sense  
      dictate that a tribunal such as that established under the 1921 Act is to be  
      treated as a ‘tribunal’ for the purposes of s.1(a) of the 1975 Act.” He  
      contends that the 1921 Act, which is common to the United Kingdom and  
      Ireland, is in no way concerned with and has no application to tribunals of  
15      inquiry, other than those expressly appointed following resolution “of  
      both Houses of Parliament that a tribunal be established for inquiring into  
      a definite matter described in the Resolution as of urgent public  
      importance.” 
          He concedes that the proceedings before the tribunal are not concerned  
20      with the resolution of private rights in the context of litigation or  
      analogous dispute resolution. Nevertheless, he contends that its role is  
      very closely connected with matters of great importance the resolution of  
      which is of vital public interest. Parliament has endowed the tribunal with  
      the powers of a superior court of law, including the power to enforce the  
25      attendance of witnesses, for them to be examined on oath, to compel the  
      production of documents and to issue a “commission or request to  
      examine witnesses abroad.” Without such powers the activities of the  
      tribunal could be rendered sterile. He concludes, therefore, that— 
                  “it was the manifest intention of Parliament that a tribunal appointed  
30          under the 1921 Act, although not a court, should be placed on the  
          footing of the High Court of Justice for the purpose of conducting its  
          proceedings. And, in the context of the legislation which preceded  
          and succeeded its passing, which gave statutory jurisdiction to  
          courts to give effect to letters of request, it can only have been  
35          Parliament’s intention that such a tribunal was (and is) to be  
          regarded as a relevant ‘tribunal.”’ 
          Mr. Bueno refers to the Foreign Tribunals Evidence Act 1856, the  
      Evidence by Commission Act 1859, the Evidence by Commission Act  
      1885 and the Evidence (Proceedings in Other Jurisdictions) Act 1975.  
40      The substance or pith of his argument seems to be that by referring to a  
      “tribunal” in the 1975 Act—which has been made to apply to the Cayman  
      Islands—Parliament must have contemplated that “tribunal” in that Act,  
      and in the legislation that it replaced, would encompass the type of  
      tribunal which could be set up under the 1921 Act. 
45          Furthermore, the 1921 Act empowers the tribunal to issue letters of 
1997 CILR 341

      request, and so, Mr. Bueno argued, the legislature must have expected  
      foreign courts to accede to such requests. He urged that in the interest of  
      comity the application should be granted. He adopted the words of Lord  
      Denning, M.R. in the Court of Appeal in Rio Tinto Zinc Corp. v.  
5      Westinghouse Elec. Corp. (5) ([1977] 3 All E.R. at 708), and said that it  
      should be “our duty and our pleasure to do all we can to assist [the Irish]  
      court, just as we would expect the [Irish] court to help us in like circum 
      stances.” 
          Before moving on, I must say that I think it is misleading to hold that  
10      the tribunal is established or set up under the 1921 Act. The 1921 Act  
      made provisions with respect to the taking of evidence before and the  
      procedure and powers of certain tribunals of inquiry. The Act may be  
      applied to certain tribunals established by resolution of both Houses of  
      Parliament for inquiring into certain matters of urgent public importance  
15      and when applied, it empowers the tribunal to issue a commission or  
      request to examine witnesses abroad, subject to rules of court. But that  
      does not mean that the foreign court must accede to or comply with the  
      request. 
          The 1921 Act confers no extra-territorial powers. In fact, the decision  
20      whether to accede to or refuse the request will depend on the extant  
      statutory provisions in the foreign court (in the instant case, the Grand  
      Court). As Lord Diplock pointed out in the House of Lords in Rio Tinto  
      Zinc Corp. v. Westinghouse Elec. Corp. ([1977] 1 All E.R. at 461): 
                  “The jurisdiction of English courts to order persons within its  
25          jurisdiction to provide oral or documentary evidence in aid of  
          proceedings in foreign courts has always been exclusively statutory.  
          There is no presumption that Parliament, in repealing one statute  
          and substituting another in different terms, intended to make the  
          minimum changes in the previous law that it is possible to reconcile  
30          with the actual wording of the new statute, particularly where, as in  
          the instant case, the new statute is passed to give effect to a new  
          international convention.” 
          Lord Diplock was here referring to the Evidence (Proceedings in Other  
      Jurisdictions) Act 1975, which repealed the 1856, 1859 and 1885 Acts  
35      mentioned above and which has been extended to the Cayman Islands by  
      the 1978 Order. It seems clear that in the instant case, the jurisdiction of  
      this court to entertain the application is to be found in the actual terms of  
      s.1 of the Schedule to the 1978 Order and in particular, the construction to  
      be placed on the words “court or tribunal” and “civil proceedings” used  
40      therein. 
          Mr. Alberga, Q.C. submits that whatever may be the name or label  
      given to a requesting body, that requesting body does not fall under the  
      umbrella of the words “court or tribunal,” which are used in s.1(a) of the  
      Schedule, unless that body is in reality adjudicatory. Any requesting body  
45      which is in reality investigatory cannot fall within the definition of the 
1997 CILR 342

      words “court or tribunal.” He contends that the requesting body in this  
      case is investigatory and not adjudicatory and that because of that, this  
      court has no jurisdiction to grant the request which has been made to it. In  
      support, he relies on the sage words of Lord Fraser in the Westinghouse  
5      case (5) (ibid., at 476): “The English courts have no power under the  
      1975 Act, or otherwise, to make orders for giving effect to requests for  
      evidence to be used for such investigatory purposes.” But His Lordship,  
      in my view, was here referring to the use of evidence for the investigatory  
      procedure before a grand jury in the United States and I doubt that the  
10      principle enunciated was intended to be of universal application. 
          The question of whether the foreign requesting body is a “court or  
      tribunal” for the purposes of s.1(a) of the Schedule to the 1978 Order  
      must primarily be decided on the evidence of the laws of the requesting  
      country. This is common ground between the applicant and the opposer.  
15      But the applicant contends that the instant case is peculiar in that there  
      can be no conflict of law between the requesting country and the  
      requested country. The 1975 Act, for all purposes material to this  
      application, is the law of the Cayman Islands and must be construed by  
      the Grand Court in precisely the same way as the Act is construed by the  
20      United Kingdom. I must examine this contention in the light of the  
      authorities. 
          Mr. Alberga, Q.C. places reliance on the case of In re Imacu Ltd. (2), a  
      case decided by the Royal Court of Jersey. The Evidence (Proceedings in  
      Other Jurisdictions) Act 1975 was extended to Jersey by the Evidence  
25      (Proceedings in Other Jurisdictions) (Jersey) Order 1983, and is similar in  
      all respects to the 1978 Order. In the Imacu case, a request was issued by  
      a “juge d’instruction” in Belgium and an order was made by the Royal  
      Court in Jersey in response thereto. Imacu Ltd. sought to set aside the  
      order on the ground, inter alia, that the order was invalid in that the “juge  
30      d’instruction” was not a “court or tribunal,” as required by s.1(a) of the  
      1975 Act (as extended to Jersey), since his role was merely that of an  
      investigating officer. The order was discharged for the following reasons,  
      taken from the headnote to the case in the Jersey Law Reports (1989 JLR  
      at 18): 
35                  “(1) The relevant Belgian law, as was the case with all foreign  
          law, could not be judicially noticed by the Jersey court but had to be  
          proved as fact by expert witnesses tendering authorities as evidence  
          of that law. In the event of conflict or confusion arising from the  
          evidence, the court could itself examine and interpret the authorities  
40          cited to reach a satisfactory conclusion…. 
          (2) Since the phrase ‘court or tribunal’ in s.1(a) of the Evidence  
      (Proceedings in Other Jurisdictions) Act 1975 had not an  
      immediately ascertainable meaning in Jersey law, the court had  
      primarily to inquire whether the juge d’instruction constituted a  
45      ‘court or tribunal’ under Belgian law but would then only comply 
1997 CILR 343

      with the request if it were satisfied that he was also recognized as  
      such under Jersey law…. 
          (3) The juge d’instruction did not constitute a ‘court or tribunal’  
      within the meaning of s.1(a), these words being construed as  
5      meaning a ‘court or similar tribunal,’ i.e. a tribunal acting in a  
      manner similar to that in which courts of justice act in respect of an  
      inquiry before it, because (a) at the time he made the request his role  
      was wholly investigatory and not adjudicatory, since he was obliged  
      to pass on the results of his preliminary investigations to the  
10      chambre du conseil and could only sit as a member of a ‘tribunal’  
      (the tribunal correctionel) once the chambre du conseil had  
      committed the suspect for trial by it; (b) he was not an independent  
      adjudicatory authority but had to report regularly to his superior, the  
      Procureur du Roi, on the progress of his investigations; and (c) his  
15      investigations were in respect of unknown persons, a concept  
      unknown in Jersey courts and were always conducted in camera,  
      without examination or cross-examination of the suspect in  
      accordance with rules of evidence. The order granting assistance to  
      the juge d’instruction had therefore been made without jurisdiction  
20      and would be discharged….” 
          In my view, the important point in that case is the construction it places  
      on the word “tribunal” in s.1(a) as being “a tribunal acting in a manner  
      similar to that in which courts of justice act in respect of an inquiry before  
      it.” The court in Jersey considered the evidence as to the status of the juge  
25      d’instruction according to the laws of Belgium, and concluded that he did  
      not constitute either a court or similar tribunal. 
          The 1921 Act is not applicable to Belgium as it is to Ireland and,  
      therefore, the Imacu case (2) did not address the question of whether a  
      tribunal, endowed with the powers of the 1921 Act, inevitably falls within  
30      the meaning of “tribunal” in s.1(a) of the Schedule to the 1978 Order. It  
      does, however, provide guidelines as to the manner in which this court  
      should approach the question of construction. 
          The next case that Mr. Alberga, Q.C. refers to is one decided by the  
      Court of Appeal for the Cayman Islands: Worldwide Fin. Holding v.  
35      CITEL (6). That case is not unlike the instant case. Allegations of  
      corruption were made against high-ranking Peruvian Government  
      officials. The Peruvian Congress appointed a special investigative  
      commission, CITEL, in accordance with the provisions of art. 97 of the  
      Constitution and arts. 25 and 35 of the Regulations of the Democratic  
40      Constitutional Congress. Article 97 empowers the Congress to commence  
      investigation on any matter of public interest. Article 25 of the  
      Regulations provides for permanent and temporary commissions which  
      may be (a) investigative commissions or (b) special commissions. Article  
      35 of the regulations empowers Congress in plenary session to appoint  
45      investigative commissions for important matters. 
1997 CILR 344

          The President of an investigative commission requested the assistance  
      of the Grand Court and, on an ex parte application, an order was made for  
      the examination of certain persons within the jurisdiction. Worldwide  
      Financial Holding was affected by the Order and applied unsuccessfully  
5      to have it set aside. The central issue on appeal was whether CITEL  
      constituted 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, so as to bestow jurisdiction on the Grand Court to  
      grant the Order. 
10          Article 97 of the Constitution states in part that the resolutions of an  
      investigative commission do not bind the judicial organs. An  
      investigative commission investigates and submits reports to the  
      Congress in plenary session. Its conclusions, if approved by Congress,  
      neither bind the judiciary nor affect the ordinary course of the judicial  
15      process. The result of the investigation is communicated to the office of  
      the Attorney-General for the relevant purposes. Zacca, P., who delivered  
      the judgment of the court, said (1994-95 CILR at 400): 
                  “CITEL cannot make any binding decisions. It is in reality a  
          commission mandated to make enquiries which are preliminary to  
20          administrative or judicial decision. In our view, the Investigative  
          Commission cannot be regarded as a tribunal to bring it within  
          s.1(a) of the 1975 Act. The Grand Court of the Cayman Islands  
          cannot, in these circumstances, entertain an application from such an  
          Investigative Commission.” 
25          It appears that the Court of Appeal, in arriving at its decision, placed  
      some reliance on the textbook of Professor Sir William Wade,  
      Administrative Law, 6th ed., at 900-901 (1988) which distinguished  
      tribunals from ordinary enquiries. The text reads: 
                  “In principle there is a clear contrast between the function of a  
30          statutory tribunal and that of a statutory inquiry of the kind  
          discussed in the next chapter. The typical tribunal finds facts and  
          decides the case by applying legal rules laid down by statute or  
          regulation. The typical inquiry hears evidence and finds facts, but  
          the person conducting it finally makes a recommendation to a  
35          minister as to how the minister should act on some question of  
          policy, e.g. whether he should grant planning permission for some  
          development scheme. The tribunal need look no further than the  
          facts and the law, for the issue before it is self-contained. The  
          inquiry is concerned with the local aspects of what will usually be a  
40          large issue involving public policy which cannot, when it comes to  
          the final decision, be resolved merely by applying law. Tribunals are  
          normally employed where cases can be decided according to rules  
          and there is no reason for the minister to be responsible for the  
          decision. Inquiries are employed where the decision will turn upon  
45          what the minister thinks is in the public interest, but where the 
1997 CILR 345

          minister, before he decides, needs to be fully informed and to give  
          fair consideration to objections. In other words, tribunals make  
          judicial decisions, but inquiries are preliminary to administrative or  
          political decisions, often described as quasi-judicial decisions.”  
5          [Emphasis supplied.] 
          The views expressed in Wade may be contrasted with those of Morgan &  
      Hogan, Administrative Law in Ireland, 2nd ed., at 256-257 (1991). Two  
      types of inquiry are described, but it is this type that is germane to the  
      issues at hand: 
10                  “The second type of inquiry is, in effect, a post mortem: the  
          inquiry is given the task of investigating the causes of accidents,  
          natural disasters or other matters of general public concern. The  
          terms of reference of this type of inquiry—which usually involves  
          fact-finding as to the causes of (say) a shipping collision and  
15          recommendations as to improvements for the future—will usually  
          be ‘at large,’ simply because the conclusions of the inquiry cannot  
          be anticipated in advance. The most dignified and high-powered  
          example of this latter type of inquiry is one which is constituted  
          under the Tribunals of Inquiry (Evidence) Acts 1921-1979.  
20          However, there is also specialised legislation regulating accidents  
          involving railways, shipping and aeroplanes. 
          Both types of statutory inquiry may be regarded as having many  
      of the characteristics of a tribunal for the procedures adopted before  
      an inquiry and a tribunal are similar in that each of them approx 
25      imates to that of a court. However, there are three differences  
      between a tribunal and an inquiry. First, the latter’s conclusions do  
      not bind the Minister or other responsible decision-making  
      authority, though in practice it would be rare for the Minister to  
      depart from the conclusions of at any rate, the first type of inquiry.  
30      Secondly, an inquiry is set up ad hoc for each episode examined;  
      whereas a tribunal enjoys a continuous existence. Finally whilst a  
      tribunal is a decision-making body, an inquiry may be regarded as  
      an instrument of participation in government.” 
          The Supreme Court of Ireland considered the status of a tribunal of  
35      inquiry in the case of Goodman Intl. v. Hamilton (1). The Dáil Éireann  
      and Seanad Éireann, by resolutions, established a tribunal of inquiry to  
      inquire into certain matters of urgent public importance which consisted  
      of allegations of illegal activities, fraud and malpractice in and in  
      connection with the beef-processing industry. The Order which  
40      established the tribunal of inquiry also appointed the President of the  
      High Court as the sole member of the tribunal of inquiry, and it provided  
      that the provisions of the Tribunals of Inquiry (Evidence) Act 1921, as  
      adapted, and the Tribunals of Inquiry (Evidence) (Amendment) Act,  
      1979, should apply to the tribunal. It should be noticed that the tribunal of  
45      inquiry established in that case was similar in all respects to that in the 
1997 CILR 346

      instant case. In considering the constitutionality of such a tribunal, the  
      Irish court took into account the status of the tribunal. In his judgment,  
      Findlay, C.J. said ([1992] 2 I.R. at 590): 
                  “My conclusion is that the activities of the Inquiry are not in any  
5          way the exercise of a judicial power or function, it being no part of a  
          judicial function, nor part of the judicial domain, to ascertain the  
          truth or falsity of facts and report them to Parliament.” 
          The learned Chief Justice categorized the activities of such tribunals as “a  
      simple fact-finding operation, reporting to the legislature.” He adopted as  
10      being appropriate the test set out in the judgment of Kenny, J. in  
      McDonald v. Bord na gCon (3) as to the meaning of the constitutional  
      concept of the administration of justice in Ireland. This is what was stated  
      (ibid., at 589-590): 
                          “‘It seems to me that the administration of justice has these  
15              characteristic features: 
                                  .    A dispute or controversy as to the existence of legal rights  
                  or a violation of the law; 
                                  .    The determination or ascertainment of the rights of parties  
                  or the imposition of liabilities or the infliction of a penalty; 
20                                  .    The final determination (subject to appeal) of legal rights  
                  and liabilities or the imposition of penalties; 
                                  .    The enforcement of those rights or liabilities or the  
                  imposition of a penalty by the Court or by the executive  
                  power of the State, which is called in by the Court to  
25                  enforce its judgment; 
                                  .    The making of an order by the Court, which as a matter  
                  of history, is an order characteristic of courts in this  
                  country.’ 
                  I am satisfied that with the possible exception of the first clause in  
30          this statement of the characteristics of the administration of justice,  
          where it speaks of a controversy as to the existence of a violation of  
          the law, the activities of this Tribunal of Inquiry fulfils none of the  
          other fundamental conditions or characteristics of the administration  
          of justice as laid down in this case. It can be argued, I suppose, that  
35          by reason of the inquisitorial nature of the Tribunal that it is not  
          accurate to speak of a controversy concerning the violation of the  
          law, but even if it is, and I would incline to the view that it would  
          come within that category, that fact alone could not conceivably  
          make the proceedings of this Tribunal an administration of justice  
40          within the meaning of Article 34 of the Constitution.” 
          These cases, in my view, clearly establish that a tribunal, such as that in  
      question, although endowed with powers under the 1921 Act, is not a  
      “court or tribunal” for the purposes of s.1(a) of the Schedule to the 1978  
      Order. The mandate itself undoubtedly suggests that an inquisitorial and  
45      not an adjudicatory body has been established. The resolutions of the 
1997 CILR 347

      Parliament are not directed at the establishment of a tribunal that is to  
      exercise judicial functions. It is a tribunal of inquiry. As Hederman, J.  
      opined in the Goodman case (1) ([1992] 2 I.R. at 601-602): “The fact that  
      powers similar to those exercised by the High Court are conferred on a  
5      particular administrative tribunal or tribunal of inquiry, does not  
      constitute such bodies courts,” or, I may add, tribunals, for the purposes  
      of s.1(a) of the Schedule to the 1978 Order. I accept as correct in law the  
      meaning placed on the words “court or tribunal” in the Imacu and the  
      CITEL cases as “court or similar tribunal.” 
10          The concept of statutory tribunals that are similar to courts of law has  
      long been established in the English legal system. By Magna Carta,  
      medieval traders were assured the right to trade freely throughout  
      England. The consuetudo mercatorum was enforced in the “Piepowder  
      Courts” held in the fairs and market towns. But in the boroughs and  
15      the staple towns were tribunals, of greater prestige, which also heard the  
      causes of merchants by summary process and in accordance with the  
      consuetudo mercatorum (see Windeyer, Legal History, 2nd ed. (revised),  
      at 176-177 (1957)). The law merchant was administered by those special  
      courts until the 18th century, when Lord Mansfield, C.J. made it a part of  
20      the common law of England. But other statutory tribunals, similar to  
      courts, have been established by Parliament from time to time, e.g. the  
      Rent Tribunals, the Mental Health Review Tribunal, the Agricultural  
      Land Tribunals, the Industrial Disputes Tribunal and numerous others.  
      Such tribunals “find facts and decide the case by applying legal rules laid  
25      down by statute or legislation.” Their decisions are final (subject to  
      appeal) in the sense that they do not report to anyone. 
          The functions of the tribunal in question are to enquire urgently into,  
      and report to the Clerk of the Dáil and make such findings and  
      recommendations as it sees fit, in relation to definite matters of urgent  
30      public importance. The findings of fact that it arrives at are not legally  
      binding. Its function involves an investigatory process, and its  
      conclusions do not bind Parliament, which is entrusted with the ultimate  
      decision in the matter. On the evidence and on the authorities, I am  
      satisfied that the tribunal in question is not similar to a court, either  
35      according to the laws of Ireland or the laws of the Cayman Islands. 
          It is my judgment that the Tribunal of Inquiry (Dunne’s Payments)  
      appointed by instrument of An Taoiseach of Ireland on February 7th,  
      1997, is not a “court or tribunal” for the purposes of s.1(a) of the  
      Schedule to the 1978 Order. Accordingly, this Grand Court has no  
40      jurisdiction to make the Order sought in the application pursuant to the  
      request from the foreign tribunal. 
          My decision, which I have just expressed, is sufficient to dispose of the  
      application, but it is incumbent on me to consider the other important  
      issue that was fully argued, in the event that my decision on the first issue  
45      is wrong. 
1997 CILR 348

          The second issue: Meaning of “civil proceedings” 
          The second condition precedent to the jurisdiction of the Grand Court  
      to grant the request is set out in s.1(b) of the Schedule to the 1978 Order.  
      The court must be satisfied: 
5                          “(b)    that the evidence to which the application relates is to be  
              obtained for the purposes of civil proceedings which  
              either have been instituted before the requesting court or  
              whose institution before that court is contemplated.” 
          Section 9(1) of the Schedule to the 1978 Order provides that civil  
10      proceedings, in relation to the requesting court, means “proceedings in  
      any civil or commercial matter.” 
          Mr. Bueno, Q.C. submits that the expression “civil proceedings,” for  
      the purposes of both s.1 of the 1975 Act and the 1856 Act, is not a term of  
      art. He says that whilst it plainly includes proceedings before a judicial or  
15      quasi-judicial tribunal with jurisdiction to determine or resolve private  
      rights, a meaning restricted to litigation or the like would do violence to  
      the intention of the 1921 Act. 
          The construction to be placed on s.9(1) of the 1975 Act (which is in  
      pari materia to s.9(1) of the Schedule to the 1978 Order) was considered  
20      by the House of Lords in Re State of Norway’s Applications (Nos. 1 & 2)  
      (4). Lord Goff of Chieveley, who delivered the leading opinion of their  
      Lordships’ House, after tracing the relevant legislation before the 1975  
      Act, concluded that the words “civil or commercial matter” in the 1975  
      Act cannot be construed with reference to any internationally accepted  
25      meaning. The relevant section of the headnote in the All England Law  
      Reports reads as follows ([1989] 1 All E.R. at 746): 
                  “On the true construction of s.9 of the 1975 Act the question  
          whether proceedings were a ‘civil or commercial matter’ depended  
          on the classification of those proceedings according to the law of the  
30          requesting court and the law of the court to which the request was  
          made (i.e. English law), since the classification could not be made  
          by reference to any internationally acceptable classification. In  
          answering that question the English court was required to determine  
          according to the law of the requesting court how the proceedings  
35          would be classified under the law and practice of that state, having  
          regard to the manner in which classification was ordinarily made in  
          that country, and then to determine according to English law  
          whether the proceedings were civil proceedings on the basis that  
          all proceedings other than criminal proceedings were civil  
40          proceedings.” 
          The principles enunciated by their Lordships in In re State of Norway’s  
      Applications cannot be faulted. But it seems to me that they are only  
      applicable where the requesting body is found to be a “court or tribunal”  
      within the meaning of s.1(a). The classification of the proceedings as  
45      either civil or criminal would then be unnecessary. If the proceedings are 
1997 CILR 349

      classified as “criminal,” then the court would not have jurisdiction to  
      grant the request unless proceedings have been instituted. The order, if  
      made, is limited to the examination of witnesses, either orally or in  
      writing, and for the production of documents (s.5(1)). 
5          The court would have jurisdiction to grant the order where it is shown  
      that the proceedings are ‘civil,’ which either have been instituted before  
      the requesting court or whose institution before that court is contemplated  
      (s.1(b)). However, my decision on the first issue renders this secondary  
      issue otiose. It is only if I am wrong on the first issue that it would be  
10      necessary to decide this issue. In such an unlikely event, I would be  
      prepared to decide this issue on the wide interpretation suggested by their  
      Lordships in In re State of Norway’s Applications. I have considered the  
      relevant evidence contained in the affidavits of Gerard Hogan and John  
      O’Donnell, and I am satisfied that if the requesting body is classified as a  
15      “court or tribunal” within the meaning of s.1(a), then the proceedings  
      before it, on the broad interpretation, would not be criminal but civil  
      proceedings. 
          The application is refused, with costs to the opposer to be taxed if not  
      agreed. 
Application refused.
Attorneys: Quin & Hampson for the applicant; Myers & Alberga for the witness.