Thirty-nine grounds of appeal have been advanced against the High Court’s rejection of Mr Shatter’s challenge to barrister Sean Guerin’s report of May 2014.
The appeal concluded after a day-long hearing yesterday before Judge Sean Ryan, presiding, and Judges Mary Finlay Geoghegan and Mary Irvine. The court has reserved judgment.
Outlining the appeal, Paul Sreenan, counsel for Mr Shatter, argued the Guerin report reached conclusions which were “highly critical” of his client who was not afforded fair procedures or the right to be heard before it was given to the Taoiseach who later published it.
The report inflicted a “serious injustice” on the former minister, a holder of important constitutional office, career politician, and citizen with rights to his good name and to earn a livelihood, who had “no alternative” but to resign.
It was clear any adverse findings had potential to damage his good name and livelihood and there was “no compelling reason” not to give him the right to be heard on any proposed adverse findings.
While findings of the O’Higgins Commission that Mr Shatter acted properly at all times might go some way to alleviate the damage, the Guerin report directly caused Mr Shatter’s resignation and damage to his good name, he argued.
The report contained findings recognised by the Taoiseach among others as hard-hitting and described in the media as “explosive” and “damning” of Mr Shatter as minister, counsel said. Had Mr Shatter been heard, it was likely such findings would not have been included, he argued.
Mr Guerin clearly made findings of fact, including the only action the minister took on foot of the confidential report concerning the McCabe complaints was to seek a response from the Garda commissioner which he did not challenge in any meaningful way, he said.
Mr Guerin has denied any unfairness and argued that his report contained “observations”, not conclusions, based on documents provided for the review by the Department of Justice.
His counsel, Paul Anthony McDermott, argued Mr Guerin was asked by the Government of which Mr Shatter was then a part to prepare a “scoping” report and the consequences that flowed were a result of “purely political decisions”.
The High Court accurately described Mr Shatter’s case as “extraordinary” and said he was “rewriting history” in asserting the purpose of his case was not to mount a collateral attack on the O’Higgins Commission set up, in line with Mr Guerin’s recommendations, to inquire into the McCabe claims, counsel said. Mr Shatter had seemed to envisage a commission that would look at all aspects of the handling of the McCabe complaints except the role of his department, counsel said.
If, as was claimed, the Taoiseach only allowed Mr Shatter read three chapters (1,19, and 20) of the report, that was political and Mr Shatter had not read chapter three where Mr Guerin said he was not deciding anything, counsel said.
Mr Guerin gave Mr Shatter the fair procedures required of a “scoping exercise” such as this was and there was “ample basis” for the High Court’s finding against Mr Shatter on all grounds and describing several of his claims as “extraordinary and unstateable”.