Caldwell v Judge Mahon & Ors, [2006] IEHC 301 (2005)

Reporting Judge:Hanna J.
Docket Number:2004 1131JR
 
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2006 IEHC 301THE HIGH COURT [Record No. 2004/1131JR]BETWEEN JOHN CALDWELLAPPLICANT AND

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

JUDGMENT of Mr. Justice Hanna delivered on the 28th day of June, 2005

The applicant in this case is a former practising solicitor and managing partner of Binchys, solicitors. The respondents comprise the Chairman and Members of the Tribunal of Inquiry into certain planning matters and payments ("the Tribunal"), known colloquially as the Mahon Tribunal and formerly as the Flood Tribunal.

General Background The respondents' workings over the years since the Tribunal was established by resolution of Dáil Eireann in November, 1997, has kept it to the forefront of public awareness to such an extent that little time need be expended in elaborating on the background facts material to its day to day activity. Briefly, the Tribunal was established as a Sole Member Tribunal by resolution of Dáil Éireann and appointed by instrument of the Minister for the Environment and Local Government dated the 4th November, 1997. These terms of reference included, inter alia, the following provision at paragraph A(5):-"In the event that the Tribunal in the course of its inquiries is made aware of any acts associated with the planning process committed on or after the 20th June, 1985, which may in its opinion amount to corruption, or which involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it is required to report on such acts and to make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries." The terms of reference were subsequently amended on a number of occasions including extending the composition of the Tribunal to three members. The most recent amendment of the terms of reference was effected by statutory instrument signed by the Minister for the Environment, Heritage and Local Government on the 3rd December, 2004 pursuant to a resolution of the Oireachtas passed on the 17th November, 2004 and, subsequently, by act of the Oireachtas passed on the 15th December, 2004. These terms of reference provided, inter alia, at para. j(1) that:-"The Tribunal shall, subject to the exercise of its discretion pursuant to j(6) hereunder, proceed as it sees fit to conclude its enquiries into the matters specified below (and identified in the Forth Interim Report of this Tribunal) and to set out its findings on each of these matters in an interim report or reports or in a Final Report." Sub paragraph (d) of paragraph j (1) specifically refers to the Carrickmines II Module and Related Issues.

Finally, para. j(6) of the terms of reference expressly confers upon the Tribunal certain discretions, inter alia, to carry out such preliminary investigations as it thinks fit, to proceed or not to proceed to public hearing on any issue and to discontinue any private investigation upon which it had embarked prior to the commencement of any public hearing. Factors to be taken into account in the exercise of the Tribunal's discretion include matters such as the age and health of potential participants, the likely duration of a private investigation or public hearings and the likely cost of any investigation/hearing. I will set out part of paragraph J in greater detail later in this judgment.

This application arises from the Tribunal's investigations conducted in private, public hearings and future proposed public hearings of and concerning certain lands at Carrickmines, Co. Dublin and other lands. The Tribunal has engaged in the practice of dividing its enquiries into separate modules and, within those modules, separate sections or phases. The module with which we are concerned is referred to and known as the Carrickmines II and Related Issues Module. For ease of reference save where the context otherwise requires it I will describe it as the Carrickmines II Module. The lands the subject matter of this Module are specified in the latest amendment to the terms of reference. This Module follows on from the Carrickmines I Module which inquired into allegations of corruption in the planning process relating to certain lands. Public hearings in relation to this Module commenced on the 20th November, 2002, and continued until the 16th October, 2003. The Carrickmines II Module concerns the ownership of those lands and other specified lands. In the course of its enquiries, the Tribunal has examined and wishes to continue to examine the business affairs and inter-relationship (if such there be) of Mr. John Caldwell, the applicant herein, Mr. James Kennedy, a businessman and Mr. Liam Lawlor, a former TD.

The applicant says that he is the owner, through a limited liability company, of 50% of those lands at Carrickmines upon which the Carrickmines 1 Module focussed, also known as Jackson Way properties. The applicant admits that his former firm acted for Mr. Kennedy and Mr. Lawlor in the past. Mr. Kennedy, he says, is the other half owner of the Carrickmines land. The applicant stoutly denies that Mr. Lawlor has any interest whatsoever in the said lands. So apparently does Mr. Lawlor. Mr. Kennedy has not cooperated with the Tribunal and has not attended to give evidence. Mr. Frank Dunlop, another person who has featured prominently before the Tribunal, has alleged that he received a substantial sum in cash from Mr. James Kennedy for the purpose of ensuring support for the rezoning of the lands at Carrickmines from agricultural to residential use and Mr. Dunlop further alleges that Mr. Kennedy told him that Mr. Lawlor had an interest in the said lands.

The Carrickmines II Module has been divided into eight phases. As already noted, Carrickmines II phase 1 dealt with the ownership of the Carrickmine lands. The other phases deal with lands at Coolamber House, Finnstown House, Somerton, Newcastle Road, Lucan, Willie Nolan Road, Baldoyle, Co. Dublin, Airlie Stud, Newcastle Road, St. Helens, Newcastle Road and Crockhouse.

The Issues The applicant contends that the respondents have acted ultra vires, in breach of the requirements of natural and constitutional justice and are in breach of the applicant's constitutional right to privacy and the right to respect for his privacy under Article 8 of the European Convention on Human Rights in that:-

· Phases 2-8 of the Carrickmines II Module are outside the terms of reference of the Tribunal.

· The holding of public hearings into phases 2-8 of the Carrickmines II Modules constitutes an unjustified, unnecessary and disproportionate invasion of the applicant's right to privacy under Article 40.3 of the Constitution and Article 8 of the European Convention on Human Rights.

· The Tribunal erred in holding that it did not have a discretion under the amended terms of reference not to proceed with the inquiry into phases 2-8 of the Carrickmines II Modules and/or in not considering whether to exercise that discretion.

· The Tribunal acted in breach of natural and constitutional justice in refusing to hear submissions from counsel for the applicant as to whether it should proceed with phases 2-8 of the Carrickmines II Modules.

The respondents dispute all of the foregoing.

· They assert they were acting intra vires.

· The applicant does not enjoy a right to privacy as far as his business and professional affairs are concerned either under the Constitution or the European Convention on Human Rights.

· If he did enjoy such a right then any interference with that right by the State is both proportionate and appropriate.

· The Tribunal had the discretion to proceed to public hearing in Carrickmines II and related issues and so notified the respondents on the 3rd November, 2003.

· The applicant has no right to challenge or question the work of the Tribunal during its private investigative phase nor was the Tribunal obliged to hear submissions of counsel in relation to same.

· The respondents say that Mr. Finlay was afforded every courtesy with regard to making oral submissions but that he could not question or challenge any matter leading to and including the decision to move into public hearing phase.

· Finally, the applicant's case must fail on grounds of delay for failure to comply with the provisions of Order 84 of the Rules of the Superior Courts. Material Facts The period of time with which this case is concerned covers approximately 12 months beginning in November/December 2003. It is within that time frame that we find the essential words, deeds and documents that have crystallised into matters now disputed by the parties. It is, therefore, necessary that I identify and describe those milestones which lead me to the conclusions I have reached in this judgment.

The respondents decided in November, 2003 to move, as it were, from the private phase of their investigations into Carrickmines II and related issues to the public phase. Affected parties were notified of this decision and a letter dated the 4th December, 2003, was sent to the applicant's solicitors. It advised that the Tribunal would commence a section or module of its public inquiry on or about the 20th January, 2004. The Tribunal said that Mr. Caldwell would be required as a witness for this and each subsequent section of the modules. This letter was responded to by letter dated the 8th December, 2003 from Messrs Miley and Miley, the solicitors for John Caldwell. This letter expresses the view that the matters which it was intended to inquire into would take most of the following year and requested the provision of materials and notice of issues to be dealt with at the earliest possible time in order to allow them and Mr. Caldwell to prepare. A letter in reply to this dated the 11th December, 2003 was written setting out the intended time scale of the inquiry and pointing out that the Tribunal...

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