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1. For the first time in its sixty year history, an industrial dispute resulted in the closure of Dublin Airport on the evening of Saturday, 7th March, 1998. The closure and events leading up to it caused massive disruption to airline passengers and airport-based companies who suffered major inconvenience until the 8th March, 1998 when the dispute was, at least pro tem ., resolved.

2. The closure resulted from the sudden deterioration of an on-going industrial dispute between the Services Industrial Professional Technical Union (SIPTU) and Ryanair Limited, the Applicant herein, concerning pay and conditions of employment of Ryanair employees engaged as ground-handling agents (GHA's).

3. On the 3rd December, 1997 SIPTU, on behalf of its members in Ryanair, had written to the Applicant seeking agreement on the following issues:-

4. By letter dated 11th December, 1997, Ryanair replied to SIPTU stating:-

5. In a Ryanair ground handling staff information notice dated 12th December, 1997, the Director of Group Operations stated:-

6. The factual accuracy of these assertions was not accepted by SIPTU who in correspondence set out its own comparisons and computations, the accuracy of which in turn was not accepted by the Applicant.

7. On 7th January, 1998 Ryanair wrote to SIPTU stating:-

8. Thereafter the dispute escalated with reported incidents of verbal abuse and intimidation, notably at the head office building of the Applicant at the end of February, picketing at the entrances to the airport and even protests in the vicinity of aircraft at Dublin Airport itself. A situation of virtual chaos obtained at the airport on the 7th March, 1998.

9. Against this background, the Tanaiste and Minister for Enterprise Trade & Employment ordered an Enquiry under Section 38(2) of the Industrial Relations Act, 1990 into the escalating industrial dispute.

10. The remit of the Enquiry under Section 38(2) of the said Act, as stated in the letters of appointment of Philip Flynn and Dan J. McAuley, the Respondents herein, dated 8th March, 1998 was:-

11. Intensive efforts on the part of the Enquiry commenced immediately leading to proposals for the resumption of normal operations at Dublin Airport which happily bore fruit. Settlement terms for the dispute were drawn up on 8th March as follows:-

12. The Enquiry identified three principal issues which needed to be addressed, namely:-

13. For the purposes of its work, the Enquiry appointed the Irish Productivity Centre (IPC), the Notice Party herein, to undertake a study of the pay and conditions of employment of Ryanair employees engaged in ground handling duties and employees of three airport based companies engaged in broadly comparable duties.

14. The Enquiry invited SIPTU, representing its members in Ryanair, and Ryanair management to meet separately with the Enquiry and to make submissions on the issue of trade union representation and other matters. At the request of Ryanair management, the Enquiry held meetings with 16 employee groups working in the Company.

15. The Enquiry invited submissions from a number of companies based at Dublin Airport and held extensive meetings with all interested parties, including SIPTU and the Applicant herein.

16. At many, if not all, of the meetings attended by Ryanair, the Applicant had the benefit of legal representation.

17. The Applicant made submissions, as did SIPTU and the other parties listed at Appendix IV of the Report of Enquiry which was published in July 1998.

18. At an early stage of the work at the Enquiry, Ryanair management sought an assurance that the Enquiry would not become involved in a conciliation or mediation type function.

19. On 13th March, the Applicant's Solicitor sought an assurance that the Enquiry would:-

20. On the same day, the Enquiry replied to the Applicant's Solicitors stating:-

21. The IPC, which is an expert body, prepared its Report into conditions and terms of employment for the Applicant's baggage handlers and completed same in June 1998.

22. Having studied the IPC Report, the Enquiry noted that there were significant differences and variations in the composition of the remuneration package of baggage handlers in the companies surveyed (which were Servisair, Aer Lingus and British Midland). The Enquiry noted that the companies surveyed acted independently of each other in determining the pay and conditions of employment of baggage handlers and had different operational demands and working methods. It was felt, therefore, not to be surprising that both the rates of pay and the composition of remuneration packages should vary between these companies. The comparability issue was regarded as important because Ryanair management and SIPTU had entered into a major and public controversy over it.

23. The Report of the Enquiry states at p. 23:-

24. The Report went on to criticise both the Applicant and SIPTU for creating a situation which led to very considerable confusion among GHA's and SIPTU members who took strike action. It found that statements made by the Applicant on pay comparators were not consistent. It further noted that, since the end of the dispute, the Applicant had repeatedly stated that the only comparator is Servisair. However, as Ryanair has given a "commitment" on pay and benefits to its employees it should have, at all times, made clear the precise terms of that "commitment".

25. The Report continues at p. 24:-

26. At para. 7.27, the Enquiry in relation to this contention, made an identical conclusion.

27. The Enquiry Report deals with a significant number of issues. Chapter 1 addresses the restoration of normal working at Dublin Airport. Chapter 2 addresses the views and attitudes of employees of Ryanair. Chapter 3 addresses the pay and conditions of employment of Ryanair employees engaged in ground handling duties. Chapter 4 addresses the issue of trade union recognition. Chapter 5 deals with the experiences and views of third parties affected by the industrial dispute at the airport. Chapter 6 deals with complaints of alleged victimisation and Chapter 7 sets out a summary and conclusions.

28. Reverting finally to the Introduction, the authors of the Report stress that a "non-legalistic" approach was followed in securing information and the views and opinions of many persons involved in the dispute or affected by it. It held 41 meetings with various groups and interests and received a considerable amount of documentation. They continue:-

29. On the 27th day of July, 1998, Geoghegan J. upon ex-parte application made to the Court, gave the Applicant leave to apply for:-

30. The grounds upon which relief to seek judicial review were those set forth at paragraph (e) of the Statement of Grounds, including the following:-

31. By his Order on the same date, Geoghegan J. joined IPC as a Notice Party.

32. By its Notice of Opposition delivered the 11th day of December, 1998, the Respondents asserted the following:-

33. The remaining Grounds of Opposition are somewhat argumentative, but include an assertion that British Midland was a valid comparator for the purposes of the work conducted by the Irish Productivity Centre having regard to the fact that the Applicant had given a commitment to its GHA's in January 1998 that it would pay them a rate of remuneration in excess of that applicable to British Midlands, Aer Lingus or Servisair GH personnel. It is further asserted that the Respondents considered all aspects of the Applicant's submissions including, inter alia, the value of the Applicant's tug allowances, flotation bonus and all other benefits paid to its GHA's and concluded that the Applicant's GHA's were paid less than their comparators. It is further asserted that it was open to the Applicant to refer any findings or adverse findings in the Report to the Labour Relations Commission or the Labour Court in accordance with the provisions of the Industrial Relations Acts, 1946-1990 and it is submitted that the failure on the part of the Applicant so to do is a further ground for refusing relief.

34. A Statement of Opposition was also lodged by the Notice Party which denied that its Report to the Respondents contained the errors alleged by the Applicant or any errors. It further denies that the conclusions drawn by IPC in its Report are erroneous, arbitrary or unreasonable or irrational or ultra vires for the reasons alleged or at all. It further denies that it was obliged to comply by rules of natural or constitutional justice, but insofar as it may be argued that such considerations arise, any such requirements were fully met.

35. In particular, it asserts that Ryanair participated in the study undertaken by the Notice Party and failed at any stage to complain about the procedures and methodology adopted by the Centre in undertaking the study and preparing its Report.

36. The application is grounded upon three voluminous Affidavits sworn by Michael O’Leary, Chief Executive of the Applicant company to which are filed in reply equally lengthy Affidavits from the First named Respondent, and Mr. Michael Hannon, a consultant employed by the IPC.

37. It is clear from a perusal of these Affidavits that there is virtually a complete conflict of evidence as to the facts, particularly in relation to the primary area of contention, namely, the pay issue and the comparative studies undertaken in relation thereto.

38. Whilst all of the Applicant’s complaints are vigorously denied, it is perhaps appropriate to identify the main areas of complaint.

39. Firstly, the present application does not seek to quash the entire Report, but is confined entirely to the first issue identified by the Enquiry at para. 1.11 of its Report, being that which relates to the pay and conditions of employment of Ryanair employees when compared with employees of other airport based companies engaged in broadly comparable duties.

40. In comparing earnings, the Applicant alleges that the IPC failed to compare like with like. It is claimed that the IPC compared Servisair 1998 pay figures with Ryanair 1997 pay figures. The IPC took into account a pay increase dated 1st January, 1998 to Servisair but omitted to include a Ryanair pay increase introduced in May 1998 which was retrospectively effective to the 1st April, 1998.

41. It is alleged a similar error occurred when the IPC compared Ryanair entry level GHA pay with Servisair IS(II) grade pay. In fact, it is suggested, the proper comparators were:-

42. It is also suggested that the Enquiry failed to consider the issue of “equivalent opposite number” not only in terms of grades but in terms of years of service.

43. It is further argued that Servisair is the proper comparator, because it is the only real alternative to the self-handling which Ryanair carries out. British Midland was wrongly considered, because it was at no stage mentioned in the exchanges between SIPTU and Ryanair and therefore not ought to have been taken into account.

44. It is also argued that the Applicant’s annual leave is better than Servisair and better than Aer Lingus at year 5.

45. In relation to benefits, it is suggested the IPC excluded travel benefits, airline discounts, flotation bonus and share option/thank you bonus despite the fact that “other payments, bonuses/benefits” were included in the IPC’s terms of reference.

46. The Respondents and IPC vigorously dispute all these assertions, arguing that all relevant material and considerations were taken into account and that no errors of any sort were made.

47. The controversy between the respective parties extends over hundreds of Affidavit and exhibit pages. On the Applicant’s side, the allegations are unsupported by any objective expert evidence, although the Court readily acknowledges Mr. O’Leary’s considerable experience in the airline business. By contrast, both Mr. Flynn and Mr. McAuley have deposed in Affidavits sworn on the 7th day of March, 2000 that they have spent their entire working life in industrial relations and related work. Mr. McAuley has been involved in negotiating National Wage Agreements and from 1991 to 1994 was Chairman of the Labour Relations Commission. In 1998 he was appointed a fellow of the then National College of Industrial Relations. Mr. Flynn was President of the Irish Congress of Trade Unions between 1992-1996 and between 1996-1998 he was a Rights Commissioner appointed under the Industrial Relations Act, 1969. The IPC for its part is a highly expert body whose credentials to carry out the sort of study which it performed in the instant case is not questioned in any way.

48. The Applicant’s case is entirely one of “mistake of fact”. There is no claim or suggestion that the Respondents or Notice Party misapplied any legal principle or exceeded their remit or statutory function. There is no suggestion of bias, either subjective or objective. There is no suggestion, in short, that in the manner in which they went about their work, either the Respondents or the Notice Party did anything wrong.

49. The Applicant itself accepted and indeed insisted that it was no part of the function of the Enquiry to make any decision or to impose any consequential duties or obligations by way of dispute resolution or mediation.

50. This being so, it would appear that two issues are required to be addressed.

51. The first issue is to determine whether the contentions and material placed before the Court in this case give rise to any justiciable issue.

52. Secondly, and regardless of the answer to the first question, in what circumstances should the Court intervene by way of judicial review where “mistake of fact” is alleged, particularly when those facts fall within the province of expert bodies.

53. In the instant case, a further consideration arises in relation to the second issue. This is not a case where there are agreed facts of a straightforward nature. There is a dispute of a major degree in relation to the primary issue, namely the pay issue, not only with regard to fact, but also with regard to methodology and the appropriate inferences to be drawn from such facts as may be established.

54. Given that the Applicant’s contention is that the Enquiry drew conclusions which were erroneous to such a degree as to be “irrational” or, in the alternative, drew conclusions which were unsupported by evidence, it is clear that this Court, on one view of its obligations, would be obliged to find the facts itself. Without establishing facts, it is impossible for the Court to form any sort of opinion as to the extent and magnitude of any supposed error or irrationality.

55. As the present application is susceptible to a resolution by a negative finding in relation to the first issue, the Court determined that it would deal with the issue of justiciability in the first instance and receive submissions as to the circumstances generally in which “mistake of fact” could warrant intervention via judicial review, but expressly ruled out undertaking any minute analysis of the facts with a view to making its own findings in that regard. To undertake such a task, the Court would have required to hear expert testimony from witnesses on both sides and possibly set aside a number of days, if not weeks, for the taking of evidence on matters of methodology, fact and interpretation.

56. These difficulties additionally go to discretion to which I shall later return when considering if the High Court should lightly intervene in matters pertaining to industrial relations unless it is absolutely necessary to do so.

57. Mr. Shipsey argues that the central issue is the extent to which the activities of the Enquiry, acting on foot of Section 38(2), are of such a public nature as to be susceptible to the process of judicial review. This, he submitted, is the sole criterion to be applied and is that which was applied by Murphy J in Geoghegan -v- The Institute of Chartered Accountants in Ireland , [1995] 3 I.R. 86. In that case, Murphy J endorsed what he held to be (at p. 102) “the best attempt to define or explain judicial review”, as undertaken by Lord Parker CJ in R. -v- Criminal Injuries Compensation Board, Ex Parte Lain , [1967] 2 QB 864, where (at page 882) he set out as follows:-

58. There can be no doubt as to the “public nature” of the Enquiry’s work. In regard to the other conditions, it is accepted certiorari will only lie to quash something which is a determination or a decision, as distinct from a “mere report”. The word “report” is not conclusive. The question is whether some issue is being determined to some person’s prejudice.

59. In the instant case, the Applicant contends that the following rights are infringed by the adverse findings contained in the Report:-

60. A. The Applicant’s right not to recognise a Union.

61. B. The threat of industrial action which may follow on from the Report if certain errors are not rectified.

62. C. The credibility of the Applicant company vis-a-vis its own staff.

63. D. The right of the Applicant company to negotiate with its own staff may be prejudiced.

64. E. The Applicant’s public reputation is damaged by the Report in its present form.

65. F. The Applicant may as a result of errors contained in the Report become susceptible to further action by the Minister to make requirements of the Applicant to do certain things on foot of the findings contained therein.

66. It is not necessary that such rights be legally enforceable, because as pointed out by Diplock LJ in R. -v- Criminal Injuries Compensation Board, Ex Part Lain , [1967] 2 QB 864 at p. 884:-

67. Insofar as any requirement to act judicially is concerned, this is simply the automatic consequence of the power to determine questions affecting rights of citizens. O’Byrne J in The State (Crowley) -v- The Irish Land Commission , [1951] IR 250 (at p. 265) endorsed previous case law to the effect that:-

68. In relation to “mistake of fact”, while generally it is accepted there is no jurisdiction to quash a decision because of an alleged factual error, it is nonetheless the case that where factual errors occur such as to render the decision irrational, then judicial review will lie.

69. The Applicant contends that in the instant case errors meeting that requirement are to be found in the Report. Alternatively, and particularly with regard to the findings of the Enquiry in relation to the time off and benefits, the findings of the Enquiry were found on the basis of no evidence or in the alternative were wrong. The errors, he submits, were so serious as to go to jurisdiction.

70. Alternatively, there is authority for arguing in favour of a developing doctrine for Court intervention even where non-jurisdictional errors of fact arise. He relied upon the following passage from Wade & Forsyth “Administrative Law”, 1994 Ed at p. 311:-

71. Where findings are based on no satisfactory evidence, the Court is also disposed to intervene. This, it is submitted, is well recognised in Irish law. On this topic Wade states at p. 312:-

72. In support of this emerging doctrine, Mr. Shipsey cited a decision of the Court of Appeal in New Zealand - Daganayasi -v- Minister of Immigration , [1980] 2 NZLR 130, where the mistake of fact was invoked as one of the grounds to quash the Minister’s decision to deport the appellant from New Zealand. The Minister had instructed a referee to ascertain certain medical facts. A misleading and inadequate report furnished to the Minister meant that he made a mistake of fact in his statement that he had obtained the best and most up-to-date medical advice available.

73. The Court reviewed a number of English authorities, including Secretary of State for Employment -v- ASLEF , [1972] 2 QB 455; Laker Airways Limited -v- Department of Trade , [1977] QB 643 and also Secretary of State for Education and Science -v- Tameside Borough Council , [1977] AC 1014 in which Scarman LJ stated at 1030:-

74. Mr. Shipsey accepted, however, that the Court as a whole found in favour of the appellant on the ground of procedural unfairness on a nondisclosure issue and that two members of the Court of three Judges expressly declined to offer a view on “mistake of fact” stating that “the law on this important issue is as yet in a far from settled state”.

75. Mr. Shipsey submitted that it is a fundamental tenet of the principles of fair procedures that a person concerned by a determination likely to affect it be informed or be given notice of the details of the decision and be afforded an opportunity to reply. The failure on the part of either the IPC, the Enquiry or the Department to allow Ryanair to make submissions in relation to paras. 3.27 and 7.27 of the Report breaches these principles of fair procedures.

76. It is submitted by Mr. Gleeson and Mr. O’Donnell on behalf of the Respondents and Notice Party that the application discloses no justiciable controversy, that there are no legal rights involved and no decision affecting any matters of legal right, or on matters which might influence the exercise of legal rights. There was no dispute resolution, no imposition of penalty or obligations and no legal consequences to the work which was carried out.

77. The only statutory power in this case was exercised by the Minister. The Respondents exercised no statutory powers. It is almost certain the Minister could have requested any practitioner in industrial relations matters to make a factual report without any statutory authority. The Respondents, however, have no statutory powers of any kind, and specifically no powers of compulsion, no powers of summoning witnesses, seeking documents or insisting upon co-operation. What they furnished to the Minister was a “mere report”.

78. Both the Respondents and Notice Party placed heavy reliance upon the decision of Kelly J in Flood -v- An Garda Siochana Complaints Board, [1997] 3 IR 321 and the passage therein (at p. 336) where Kelly J considered the necessary ingredients to premise a challenge to a decision and cited with approval the following extracts from the judgment of Henchy J in The State (Gleeson) -v- Minister for Defence , [1976] IR 280:-

79. Henchy J continued:-

80. The rights for which Mr. Shipsey contends are not in fact legal rights at all, nor do they influence the exercise of legal rights.

81. With regard to “mistake of fact” it is submitted that the Applicant is, in fact, seeking to have the Court rewrite the Report, or act as a Court of Appeal from its findings.

82. There is no dispute with the Applicant insofar as he states that the standard of unreasonableness or irrationality is that outlined in The State (Keegan) -v- Stardust Victims’ Compensation Tribunal, [1986] IR 642 and O’Keeffe -v- An Bord Pleanala , [1993] 1 IR 39.

83. The Applicant must prove that the decision “plainly and unambiguously flies in the face of fundamental reason and common-sense”.

84. As Finlay CJ stated in O’Keeffe -v- An Bord Pleanala , [1993] 1 IR 39, at p. 71, by way of alternative formulation of the high standard:-

85. Finlay CJ continued:-

86. Mr. Gleeson submits that this decision has been relied upon repeatedly over the years and specifically in the following cases:-

87. As stated by Finlay CJ in O’Keeffe -v- An Bord Pleanala , [1993] 1 IR 39 at p. 72:-

88. Another formulation of the principle was that elaborated by Lord Green in Associated Provincial Picturehouses Limited -v- Wednesbury Corporation , [1948] 1 KB 223 where at p. 230 he stated:-

89. The other well-known formulation is that of Lord Brightman in Chief Constable of The North Wales Police -v- Evans , [1982] 1 WLR 1155, where he stated at p. 1173-1174 as follows:-

90. It is a fundamental rule of administrative law that bodies entrusted with executive tasks are entitled to err within jurisdiction without having the High Court act as a Court of Appeal. Accordingly, the Court can only intervene where an error has as its consequence the making of an Order which the tribunal had no jurisdiction to make or the decision is wholly grounded on an erroneous view of the law.

91. The Enquiry was perfectly entitled to rely on the IPC Report as they were reputable consultants. The Enquiry’s responsibility was (a) to hire reputable consultants and (b) to ensure there was no manifest absurdity in the work product of those consultants.

92. Insofar as the IPC is concerned, it is one of the leading consultancy agents in the State, offering advice and practical assistance to businesses and other organisations in resolving issues, including management problems. It is an expert body and its expertise is not contested by Ryanair in these proceedings. The IPC strenuously rejects allegations that its Report contains errors.

93. It is further submitted that it would be inappropriate for the Court to involve itself in the exercise which it is invited to perform by Ryanair which would involve the Court reviewing in great detail the complex study undertaken by the IPC into pay comparisons among ground handling agents in Dublin Airport. Such a course would in effect convert the Court into a part-time Court of industrial relations acting, in effect, as external examiners to experts uniquely qualified to make judgments in complex and delicate matters. If any errors occurred in the instant case, which is vigorously denied, any such errors were within jurisdiction and there is no jurisprudence in Ireland to warrant Court intervention by way of judicial review to rectify errors made within jurisdiction.

94. It is further submitted that the Court should be extremely reluctant to interfere with the work of specialist bodies.

95. As stated by Finlay CJ in O’Keeffe -v- An Bord Pleanala , [1993] 1 IR 39 at p. 71:-

96. Similar views were expressed by Hamilton J in Henry Denny & Sons (Ireland) Limited -v- The Minister for Social Welfare , [1998] 1 IR 34 at p. 37:-

97. Further support for that proposition can be found in the reasoning of Barr J in ACD Shipping (PTE) Limited -v- Minister for the Marine , [1995] 3 IR 406 at p. 431:-

98. Mr. O’Donnell submits that it is clear, as stated by the IPC, that the comparisons made by the IPC between the conditions of employment of Ryanair ground handling agents and ground handling agents employed by other companies in Dublin Airport was a “highly complex” exercise and that it was necessary for the IPC to make “judgments... as to where equitable comparisons lie”. The Court should not substitute its judgment for that of the IPC.

99. It is submitted that numerous authorities in recent years in Ireland increasingly support what might be termed the doctrine of “curial deference” for decisions of specialist administrative bodies.

100. On discretionary grounds alone, it is further suggested that the Court should not intervene because this is an industrial relations issue with its own sensitive mechanisms for resolution. It is not an adversarial issue.

101. Insofar as the Court feels compelled to consider factual material, the application must fail on the basis of the inadequacy of the evidence. No expertise is claimed, or established, by Mr. O’Leary or the other deponents on behalf of the Applicant.

102. Finally, the Applicant has complained that it ought to have been notified and given an opportunity to address any adverse conclusion which the Report might contain. However, this cannot be correct given that Ryanair met with IPC on a number of occasions and were afforded the opportunity of commenting on information contained in the IPC Report concerning Ryanair. At all times, it is submitted, the Enquiry Team and the IPC acted fairly and gave the Applicant a reasonable opportunity of commenting on relevant material. No greater duty was owed to the Applicant in all the circumstances.

103. I am satisfied in the instant case that the matter raised before this Court is not justiciable because there is no decision susceptible to being quashed in the sense that no legal rights of the Applicant are affected by what is a mere fact-finding Report. The Enquiry Team had an extremely limited function as was expressly recognised by the Applicant’s Solicitor by letter dated 13th March, 1998. At the Applicant’s own insistence, the Enquiry could not attempt mediation or dispute resolution. It could not impose duties, penalties, liabilities or consequences of any sort.

104. Accordingly, it seems to me the application fails both because there is “no decision” and secondly, even if there was, “no legal right of the Applicant was thereby affected”.

105. My conclusion would be in no way different even if I were to adopt the views expressed by Diplock LJ in R . -v- Criminal Injuries Compensation Board, Ex Part Lain , [1967] 2 QB 864 where he expressed at p. 884 recognition for legal rights which would be sufficiently comprehensive to include “merely one step in a process which may have the result of altering the legal rights or liabilities of a person to whom it relates”.

106. Insofar as the supposed rights contended for by Mr. Shipsey are concerned, the only possible legitimate concern would be the imposition of some adverse requirement on the Applicant by the Minister on foot of the findings contained in the Report. However, any such connection is entirely speculative. It can in no sense be described as a probable consequence or “next step”.

107. I do accept that the word “Report” is not conclusive if, of course, some decision is nonetheless made which imposes duties or liabilities.

108. However, it must also be stated that there can be decisions with adverse implications for the person affected thereby which nonetheless fall short of infringing their legal rights. In Murtagh -v- Board of Management of St. Emer’s National School , [1991] 1 IR p. 482, the Supreme Court found that a three day suspension of a pupil from a national school was an ordinary application of disciplinary procedures inherent in the school authorities which did not involve an adjudication or determination of rights and liabilities and therefore the remedy of certiorari did not lie.

109. Hederman J stated (at p. 488):-

110. It follows from the foregoing that there are, quite apart from the public law dimension (which was not an issue in Murtagh), two other requirements which must be fulfilled before the Court can intervene by way of judicial review, namely, there must be a decision, act or determination and it must affect some legally enforceable right of the Applicant. If the right is not a “legally enforceable right”, it must be a right so close to it as to be a probable, if not inevitable, next step that some legal right will, in fact, be infringed. While the Enquiry were under no obligation, it seems to me, to act judicially, I am nonetheless satisfied that both the Respondents and Notice Party were completely fair in the manner in which they discharged their remit in the sense that they met with all relevant parties, they provided the main protagonists with the opportunity to provide commentary upon material collated by them and invited and received submissions from all such parties. I do not accept they had any further obligation, for the reasons outlined above, to provide an opportunity to the Applicant to address any possible adverse findings which the ultimate Report might contain.

111. For these reasons, I would dismiss the application.

112. It seems clear that the cases where the Court can intervene by way of judicial review to correct errors of fact must be extremely rare.

113. The Court can only intervene to quash the decision of an administrative body or tribunal on grounds of unreasonableness or irrationality if it exhibits the characteristics identified by Henchy J in The State (Keegan) -v- Stardust Victims Compensation Tribunal , [1986] IR

114. The authorities opened to this Court by the Respondents and Notice Party overwhelmingly support the proposition that such bodies be allowed to get on with their work without undue interference.

115. As was pointed out by Morris P recently in Bailey -v- Flood Tribunal , (judgment delivered on the 6th day of March, 2000):-

116. Mr. O’Donnell has urged upon the Court that the concept of “curial deference” should be brought to bear on cases where the Court is asked to review the work of specialist bodies and tribunals which have all the expertise needed for the proper discharge of their functions.

117. The appropriateness of exercising judicial restraint in relation to the decisions of expert administrative tribunals has, as the case cited by Mr. Gleeson show, been recognised in a significant number of cases in Ireland, so that there is nothing novel or new in the application of the principle in judicial review. Even where appeals from, rather than judicial review of, decisions of such tribunals take place, the Court, in my view, should be extremely reluctant to substitute its view for that of a specialist body and that was the view taken by this Court in M&J Gleeson & Company & Ors. -v- The Competition Authority , [1999] 1 ILRM 401, and by Macken J in Orange Communications Limited -v- Director of Telecommunications , [1999] 2 ILRM 81.

118. There is no body of jurisprudence in this jurisdiction which suggests that it would be desirable for the Courts to interfere where errors within jurisdiction are made. Indeed, the author cited by Mr. Shipsey in support of such a supposed new doctrine also states:-

119. It seems clear to me on the authorities that a very high threshold must be met, at least in this jurisdiction, before the Court can or should intervene.

120. The limits of the remedy of Judicial Review were cogently addressed by Murphy J in Devlin -v- Minister for Arts , [1999] 1 ILRM at p. 462 when he said at p. 474:-

121. Assuming the threshold laid down in Keegan and O’Keeffe is met, no particularly difficulty will arise on an application to Court where the facts are simple or straightforward or even agreed. However, very considerable difficulties can and do arise when the dispute is in a specialised area and the facts themselves are in dispute and the subject matter of claim and counterclaim. In the instant case not merely are the facts in dispute, but differences of opinion exist as to the appropriate methodology for establishing the facts and as to the inferences to be drawn therefrom. When, as suggested by the Enquiry Report, the issue of pay comparability caused staff both in Ryanair and members of SIPTU considerable confusion, that is of itself a reason suggesting the Court should be slow to enter the arena of fact finding. When that confusion is added to by the claims and counter claims of those who profess superior knowledge and insight into the situation, it strongly suggests that the Court should not engage in fact finding where mistake of fact is alleged unless it is absolutely necessary to do so. When placed in such a situation, it is my view that the Court should first determine whether or not the application is capable of being resolved on discrete and separate grounds as its first task.

122. I so decided because, having read the Affidavits and exhibits in the case, I am satisfied that I could not find the facts with any degree of certainty on the material before me. I believe I would require the assistance of expert oral testimony before facts might be established with sufficient clarity to enable the Court to determine whether manifestly unreasonable or irrational errors of fact had occurred.

123. Such difficulties, if nothing else, go to discretion. Further, as a matter of discretion, I must have regard to the fact that this entire complaint falls within the realm of an ongoing industrial dispute. It cannot, in my view, be wise or prudent for this Court to effectively intervene and make findings of fact against such a background. While one of Mr. Shipsey’s complaints on behalf of the Applicant is that the Report, if uncorrected might premise some further claim by SIPTU against his clients, what of the corollary? If the High Court were to intervene and make its own findings of fact (an exercise for which it has no special expertise or competence) then such findings in time might well become part and parcel of the dispute and might indeed serve to aggravate it further. This discretionary consideration seems to me overwhelming, quite apart from the other legal issues to which I have referred.

124. For these reasons, I have not conducted a minute analysis of comparative pay structures with a view to ascertaining the facts in relation to this primary issue as so identified by Mr Shipsey in his submission.

125. Mr. Shipsey argued, however, that whatever difficulties may exist in relation to the ascertainment of facts in relation to the pay issue, no such comparable difficulty exists in relation to time off and benefits, in respect of which he alleges there was no proper evidence or material to justify the findings made by the Enquiry.

126. Mr. Gleeson and Mr. O’Donnell submit that once one aspect of the assertion by Ryanair cannot be established, then the essential findings of the Report must be correct. In other words, if the Applicant cannot discharge the onus of establishing its contention in relation to the pay issue, then the Report of the Enquiry in relation to the Ryanair statement of the 7th January, 1998 must stand.

127. I have come to the conclusion that, as the pay issue has to be seen as the main element of factual controversy to which the issues of time off and benefits are incidental and subsidiary, and having regard to the present inability to make findings in relation to that main issue, it would make no sense for the Court to express a view in isolation on the subsidiary issues which are so inextricably linked and interwoven with the main pay issue.