Anthony Fox v Judge Alan Mahon and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 24 July 2014
• Neutral Citation: [2014] IEHC 397
• Court: High Court
• Date: 24 July 2014

Fox v Judge Mahon & Ors (Planning Tribunal)

BETWEEN

ANTHONY FOX

APPLICANT

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY AND JUDGE GERALD KEYES, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS

[2014] IEHC 397

[No. 938 J.R./2013]

THE HIGH COURT

False evidence – Corrupt payments – Award of costs – Applicant seeking to challenge the finding of the Tribunal of Inquiry into Certain Planning Matters and Payments – Whether the Tribunal fell into error in relying on substantive findings

Facts: The respondent, the Tribunal of Inquiry into Certain Planning Matters and Payments, found as a fact in its final report that the applicant, Mr Fox, had received payments from Mr Dunlop which were improper and/or corrupt payments. Mr Fox gave sworn evidence to the Tribunal in the course of ten separate modules in which the Tribunal was seeking to establish whether the money was solicited by and/or paid to elected Dublin County Councillors in the course of the consideration of certain matters relating to rezoning of certain lands. Mr Fox was an elected Councillor, and to that extent, was not merely a witness for the purposes of the Tribunal's inquiry, but was himself identified by Mr Dunlop as a person who had received money in return for his vote in the rezoning of identified land. The evidence given by Mr. Dunlop was contested by the applicant who gave evidence over numerous days. Findings in ten of the eleven modules were made by the Tribunal that payments were made to the applicant by Mr. Dunlop and that these payments were corrupt. The Tribunal having published its substantive Report, then invited submissions in relation to costs, and submissions were delivered by the applicant in 2012. The respondent communicated in 2013 its finding that the applicant had not co-operated with the Tribunal in relation to certain matters identified in ten separate chapters of the report and/or knowingly gave false and/or misleading evidence to the Tribunal. The applicant challenged the 2013 decision of the respondent before the High Court, arguing that he did not co-operate on the grounds that the Tribunal purported to make a finding which is inherently and logically linked to its substantive finding and in breach of the legal principles outlined in Goodman v. Hamilton [1992] 2 IR 542, and Murphy v Flood [2010] 3 IR 136. The respondents argued that the Tribunal had regard to the fact that false evidence was given by Mr Fox during the course of its hearings, and that in coming to its decision it was entitled to have regard to the fact that the evidence he gave was expressly contradicted by evidence from other witnesses.

Held by Baker J that the Tribunal has power under s. 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 to make awards of costs, a decision which must be separated from the substantive decisions of the Tribunal itself, following Goodman. She held that the Tribunal, in assessing the conduct of a witness for the purpose of its deliberation must fairly assess his conduct before the Tribunal, and to the degree of pre and post hearing engagement had with a person; it must confine itself to that conduct and not to its substantive finding that Mr Fox did receive corrupt payments, referring to Murphy. Considering whether the tribunal fell into error in relying on the substantive findings in coming to its conclusion, Baker J held that the Tribunal in its final Report did make it possible to sever its substantive findings from those that made an actual finding that Mr Fox had failed to co-operate. She held that it made certain findings with regard to the credibility of his evidence and that of other witnesses, and fully explained its analysis and the elements that led to this conclusion; the Tribunal did make it clear that it came to its conclusion not based on its the substantive finding of corruption but on its actual finding that Mr. Fox had not been truthful and the reasons it came to that conclusion. She held that the Tribunal did not make the finding of non-cooperation based in any way on the finding that Mr Fox had been in receipt of corrupt payments, but on its finding as to the veracity of the evidence and the balance of that evidence against other evidence adduced to it.

Baker J held that the Tribunal did not fall into error and while it did come to its conclusion on non-cooperation from certain findings of credibility contained in the substantive Report, its conclusion was not based on its substantive findings on the subject matter of the Tribunal, the corrupt payments found to have been received by Mr Fox, but its actual and analysed findings that Mr Fox's evidence was to be disbelieved. Baker J held that the applicant is not entitled to the order sought.

Application refused.

CHAWKE v JUDGE MAHON & ORS (PLANNING TRIBUNAL) UNREP BAKER 24.7.2014 2014 IEHC 398

GOODMAN INTL v HAMILTON 1992 2 IR 542 1992 ILRM 145 1991/12/2903

MURPHY & ORS v FLOOD & ORS 2010 3 IR 136 2010/38/9563 2010 IESC 21

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S6

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S3

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1979 S6(1)

HAUGHEY v MORIARTY 1999 3 IR 1

1 1. This judicial review is a challenge by the applicant to the decision of the respondent, made on 31 ^st October, 2013, that the applicant failed to co-operate with the Tribunal and/or knowingly gave false and/or misleading evidence to the Tribunal.

2 2. On the 24 ^th day of July, I delivered judgment in a related case of Chawke v. Judge Alan Mahon & Ors [2013 No. 299 J.R.] where somewhat similar, but not identical, matters arose for consideration. Those two cases were not heard sequentially and there was some time between the hearings, the above case having been heard by me first. The applicant in each case had different legal representation, but the respondent was represented by the same counsel. Some common factors arise.

3 3. The Tribunal of Inquiry into Certain Planning Matters and Payments, ("the Tribunal") was established by instrument of the Minister for the Environment and Local Government on 4 ^th November 1997, to enquire into certain alleged payments to politicians or others with a decision making role in planning matters. The Terms of Reference of the Tribunal were amended by various instruments between then and 3 ^rd December, 2004, and inter alia, required the Tribunal to inquire into and make findings and recommendations in regard to the identity of all recipients of payments made to political parties or members of either House of the Oireachtas or members or officials of the Dublin local authorities or other public officials named, and to inquire whether the persons so receiving the monies were influenced directly or indirectly by the offer or receipt of any such payments or benefits. Paragraph C (b) of the Tribunal's Terms of Reference enable the Chairperson of the Tribunal to make decisions relating to applications for costs by individual parties and these applications were made and considered after the final Report was published on 22 ^nd March, 2012.

4 4. The evidence of Mr. Fox was taken in respect of several of the modules of the Tribunal's hearings. The Tribunal found as a fact in its final Report that the applicant had received money from Mr. Frank Dunlop and that such payments were improper and/or corrupt payments. Mr. Fox gave sworn evidence to the Tribunal in the course of ten separate modules in which the Tribunal was seeking to establish whether the money was solicited by and/or paid to elected Dublin County Councillors in the course of the consideration of certain matters relating to rezoning of certain lands in County Dublin. Mr. Fox was an elected Councillor, and to that extent, was not merely a witness for the purposes of the Tribunal's inquiry, but was himself identified by Mr. Dunlop as a person who had received money in return for his vote in the rezoning of identified land. The evidence given by Mr. Dunlop was contested by the applicant who gave evidence over numerous days. Findings in ten of the eleven modules were made by the Tribunal that payments were made to the applicant by Mr. Dunlop and that these payments were corrupt.

5 5. The Tribunal having published its substantive Report, then invited submissions in relation to costs, and submissions were delivered by the applicant on 15 ^th May, 2012. The respondent communicated on 31 ^st October, 2013, its finding that the applicant had not co-operated with the Tribunal in relation to certain matters identified in ten separate chapters of the report.

6 6. It is that finding that is challenged in this application. The applicant also sought a declaration that the findings of the respondent were ultra vires the power of the respondent, but that ground was not argued before me.

The basis of the challenge and the response

7 7. The applicant challenges the finding of the Tribunal that he did not co-operate with the Tribunal on the grounds...