Bailey & Bovale Developments Ltd v Flood(Planning Tribunal)

JurisdictionIreland
JudgeMr. Justice Frederick Morris
Judgment Date06 March 2000
Neutral Citation[2000] IEHC 169
CourtHigh Court
Docket NumberNo.J.R. 47/2000
Date06 March 2000

[2000] IEHC 169

The High Court

No.J.R. 47/2000
BAILEY & BOVALE DEVELOPMENTS LTD v. FLOOD(PLANNING TRIBUNAL)
Judicial Review

Between

Thomas Bailey Caroline Bailey Bovale Developments Limited
Applicants

and

Mr. Justice Feargus Flood The Sole Member of the Tribunal of Inquiry into Certain Planning Matters
Respondent
Contents, Introduction and Factual Background
Pages 1–21
judgment
Pages 21–33
BAILEY & BOVALE DEVELOPMENTS LTD v. FLOOD(PLANNING TRIBUNAL)

Synopsis

Tribunals

Tribunal of inquiry; terms of reference; constitutional rights; hearing of evidence otherwise than in public; judicial review; certiorari; standard of review; respondent had decided that evidence of the applicants” financial affairs should be heard in public; applicants challenging this decision; whether applicants entitled to rely on privilege against self-incrimination; whether under terms of reference respondent could have undertaken preliminary investigation in private; whether proposed examination of applicants relevant to the work of the Tribunal under terms of reference; whether evidence it is proposed to admit is relevant; whether evidence ought to be admitted; whether respondent has jurisdiction to take evidence in private; proportionality; whether decision of respondent unreasonable; ss.1 & 2, Tribunals of Inquiry (Evidence) Act, 1921; s.5, Tribunals of Inquiry (Evidence) (Amendment) Act, 1979; s.2, Tribunals of Inquiry (Evidence) (Amendment) Act, 1997.

Held: Application refused.

Bailey v. Mr. Justice Flood - High Court: Morris P. - 06/03/2000

The applicants had initiated judicial review proceedings challenging the decision of the respondent refusing to make an order to hear evidence of the financial affairs of the applicants in private. The applicants in addition had asserted that the evidence in question was not relevant to the work of the tribunal.. Morris P held that decision by the respondent to examine the evidence could not be said to be an improper one. The evidence sought to be examined was relevant to the matters being investigated by the tribunal. It was of fundamental importance that where possible the work of the tribunal be conducted in public. The reliefs sought by the applicants would be refused.

Introduction
Mr. Justice Frederick Morris
Delivered on the 6thof March 2000
1

The applicants in these proceedings are Mr. Thomas Bailey and Mrs. Caroline Bailey, who are husband and wife, and Bovale Developments Ltd (henceforth "Bovale), a company of which Mr. Bailey is a director. The respondent is the Hon. Mr. Justice Feargus Flood, the Sole Member of the Tribunal of Inquiry into Certain Planning Matters (henceforth "the Sole Member"). This is an application for judicial review of a decision of the Sole Member dated the 8th February, 2000, refusing to make an order pursuant to section 2 of the Tribunal of Inquiries (Evidence) Act, 1921, to hear the evidence of the applicants” financial affairs otherwise than in public. On the 10th February, 2000, the High Court (Carney J.) gave leave to apply for various reliefs by way of judicial review and the matter has come before this Court accordingly.

Factual background
2

The background is as follows. The Tribunal of Inquiry into Certain Planning Matters was established by instrument dated the 4th November, 1997, of the Minister for the Environment, as amended by a further instrument dated the 15th July, 1998, in order to inquire urgently into and report and make such findings and recommendations as it should see fit on the definite matters of public importance set out in a resolution (the "Terms of Reference") passed by Dáil Éireann on the 7th October, 1997, and by Seanad Éireann on the following day. The Terms of Reference were extended by further resolutions passed by Dáil Éireann on the 1st July, 1998, and by Seanad Éireann on the 2nd July, 1998. Clause 4(a) of the Terms of Reference, to which much reference was made in the course of argument, requires the Tribunal to inquire into:

"The identity of all recipients of payments made to political parties or members of either House of the Oireachtas, past or present, or members or officials of a Dublin local authority or other public official by Mr. Gogarty or Mr. Bailey or a connected person or company within the meaning of the Ethics in Public Office Act,1995, and the circumstances, considerations and motives relative to any such payment".

3

The "Mr. Gogarty" referred to here is Mr. James Gogarty, a witness before the Tribunal, and "Mr. Bailey" is Mr. Michael Bailey, the brother and fellow Bovale director of Mr. Thomas Bailey.

4

In a sworn statement to the Tribunal dated the 12th October, 1998, Mr. James Gogarty made certain allegations against Mr. Michael Bailey, among others. For the purposes of the present proceedings, two of those allegations are of particular importance. The first relates to an alleged payment to Mr. Raphael Burke by Mr. Michael Bailey, and the second to an alleged payment made by Mr. Michael Bailey to Mr. Gogarty himself.

5

The first of these allegations may be summarised as follows, which I stress is no more than what is alleged by Mr. Gogarty. At a meeting in the offices of Mr. Gogarty's employer, Joseph Murphy Structural Engineering Ltd (a company in the Murhpy Group, henceforth "JMSE"), held in early June, 1989, attended by Mr. Gogarty, Mr. Michael Bailey, Mr. Joseph Murphy Jnr. and another person, Mr. Bailey had participated in the discussion of a proposal whereby he would acquire a 50 per cent interest in all Murphy Group lands in North County Dublin in return for securing the rezoning and planning permissions required in order to allow the lands to be developed. Mr. Bailey said that he would be prepared to spend up to £2,000 per acre to obtain the necessary planning permissions and that the money would be used through Mr. Raphael Burke, then a T.D. and Government minister, to ensure that the rezonings were passed by the requisite majority of members of Dublin County Council. Mr. Bailey held himself out as a major contributor to Mr. Burke. Subsequently Mr. Bailey agreed to pay the sum of £40,000 to Mr. Burke on the basis that the Murphy Group would make a similar payment. On the 8th June, 1989, Mr. Bailey drove Mr. Gogarty and Joseph Murphy Jnr. from the JMSE premises in Santry to Mr. Burke's home, where Mr. Gogarty passed a brown envelope containing £30,000 in cash and a cheque for £10,000 to Mr. Burke and Mr. Bailey handed over another brown envelope that Mr. Gogarty assumed also contained £40,000 as his previously agreed equal contribution. I shall refer to this alleged payment as "the Burke payment".

6

It was further alleged that an agreement for the sale of seven separate parcels of land or other property (henceforth "the Lands") by the Murphy Group to Mr. Michael Bailey and Mr. Thomas Bailey (per Bovale) for £2.3 million was eventually reached and that contracts were exchanged at the end of 1989. However, a dispute arose between the parties and at the end of July or early August, 1990, a meeting was held in the Swiss Cottage, Santry, attended by Mr. Gogarty, Mr. Michael Bailey, Mr. Thomas Bailey and Mr. Joseph Murphy Jnr. at which Mr. Michael Bailey offered to re-sell 50 per cent of the Lands to Mr. Joseph Murphy Jnr. for £8 million. This proposal was rejected but Mr. Murphy Jnr. said that he would discuss it further with his father, Mr. Joseph Murphy Snr.

7

The second of Mr. Gogarty's allegations relevant to these proceedings is this. Having fallen out with the Murphy Group over the terms of his severance package, Mr. Gogarty met with Mr. Michael Bailey in late August or early September, 1990, at the Skylon Hotel, Drumcondra, where Mr. Bailey expressed concern at the ongoing dispute between Mr. Gogarty and JMSE. He said that he wanted to avoid a court hearing because of the risk of publicity about the payment to Mr. Burke and expressed the worry that he would never again get planning permission for anything should such publicity erupt. As the meeting ended Mr. Bailey placed a small envelope in the breast pocket of Mr. Gogarty's jacket, which Mr. Gogarty discovered on returning home contained a cheque for £50,000 post-dated the 30th September, 1990, drawn in his favour. At the meeting Mr. Bailey had made it clear that he wanted Mr. Gogarty to forget the past and desist from his proceedings against JMSE and simply to enjoy life. I shall refer to this alleged payment as "the Gogarty payment". On Mr. Gogarty's version of events the Gogarty payment was made as what has been called "hush money" during the course of the proceedings.

8

Owing to his age, the state of his health and the seriousness of his allegations, the Sole Member decided to proceed to hear Mr. Gogarty's evidence immediately. By a letter of the 20th October, 1998, the Solicitor to the Tribunal, at the direction of the Sole Member, wrote to those persons affected by the contents of Mr. Gogarty's statement, furnishing them with copies of the statement and affording them the opportunity to reply. Such letters were sent to Mr. Michael Bailey and Mr. Thomas Bailey, the latter because (a) along with Mr. Michael Bailey he was a director of Bovale; (b) again with Mr. Michael Bailey, he was a signatory on the contracts for the acquisition of the Lands; (c) he was a person connected with Mr. Michael Bailey within the meaning of paragraph 4(a) of the Terms of Reference; and (d) he was alleged by Mr. Gogarty to have been present at the Swiss Cottage meeting where the re-sale of the lands to Mr. Joseph Murphy Jnr. was said to have been discussed. The letter stated that the Tribunal intended to deal with all matters concerning Mr. Gogarty's allegations before proceeding with any other aspect of its public work. This phase of the Tribunal's inquiry has become known as "the Gogarty Module". Mr. Thomas Bailey was informed that he would be allowed to attend at the sittings of the...

To continue reading

Request your trial
9 cases
  • Bailey & Bovale Developments Ltd v Flood(Planning Tribunal)
    • Ireland
    • Supreme Court
    • 14 April 2000
  • O'Brien v Moriarty (No 2)
    • Ireland
    • Supreme Court
    • 16 February 2006
    ...... Mr. Justice Michael Moriarty (Sole Member of the Tribunal of Inquiry into payments to Messrs. Charles Haughey and ... Cases mentioned in this report:- Bailey v. Flood (Unreported, High Court, Morris P., 6th March, ......
  • F.A. v Child and Family Agency
    • Ireland
    • High Court
    • 3 May 2018
    ...of judicial review proceedings is not to review the merits of a decision or to act as an appeal from a decision. In Bailey v. Flood [2000] IEHC 169, Morris P. observed:- “The function of the High Court on an application for judicial review is limited to determining whether or not the impug......
  • O'Brien v Moriarty
    • Ireland
    • Supreme Court
    • 12 May 2005
    ......JUSTICE MICHAEL MORIARTY (THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS. CHARLES HAUGHEY AND ... v FLOOD 1999 3 IR 79 1999 1 ILRM 241 BAILEY & BOVALE DEVELOPMENTS LTD v FLOOD (PLANNING TRIBUNAL) UNREP ......
  • Request a trial to view additional results
1 books & journal articles
  • 'Anxious Scrutiny' in the Irish Courts: Too Little, Too Late?
    • Ireland
    • Hibernian Law Journal No. 8-2008, January 2008
    • 1 January 2008
    ...(3rd ed) (Dublin: Round Hall Sweet & Maxwell, 1998) at p 648. 34 A notable exception being the decision of Morris P in Bailey v Flood [2000] IEHC 169 (Unreported, High Court, 6 March 2000) where the learned judge quoted the test laid down in Smith referred to above and said that he was prep......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT