Caldwell v Mahon and Others

• Jurisdiction: Ireland
• Judge: MR JUSTICE HANNA,Mr. Justice Hanna
• Judgment Date: 15 February 2006
• Neutral Citation: [2006] IEHC 86
• Court: High Court
• Docket Number: 2004/1131JR.,1131JR/2004,[2004 No. 1131 JR]
• Date: 15 February 2006

[2006] IEHC 301

THE HIGH COURT

1131JR/2004

CALDWELL v JUDGE MAHON & ORS (PLANNING TRIBUNAL)

CALDWELL v JUDGE MAHON & ORS (PLANNING TRIBUNAL)

BETWEEN

JOHN CALDWELL

APPLICANT

AND

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

RESPONDENTS

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

CONSTITUTION ART 40.3

RSC O.84

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

HAUGHEY, IN RE 1971 IR 217

REDMOND v FLOOD 1999 3 IR 79 1999 1 ILRM 241

FLOOD v LAWLOR UNREP SUPREME 24.11.2000 2000/9/3450

BAILEY v MIN FOR FLOOD UNREP SUPREME 14.4.2000 2000/2/491

LAW REFORM COMMISSION CONSULTATION PAPER ON PUBLIC INQUIRIES 2003

FINNERTY v WESTERN HEALTH UNREP CARROLL 5.10.1998 1998/19/7047

BROWNE v TRIBUNE NEWPAPERS PLC T/A SUNDAY TRIBUNE 2001 1 IR 521 2001 2 ILRM 424

AG v HITCHCOCK 1847 1 EX 91

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

DUBLIN CITY COUNCIL v FENNELL 2005 2 ILRM 288

RSC O.84 r21(1)

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT & SGS (IRL) LTD 2003 2 IR 270 2003 2 ILRM 210

O'DONNELL v CORPORATION OF DUN LAOGHAIRE 1991 ILRM 301

RSC O.84 r21

TRIBUNALS:

Tribunal of inquiry

Terms of reference - Interpretation by tribunal - Investigation into ownership of certain lands - Discretion to proceed to public hearing - Whether decision ultra vires - Whether irrational - Whether disproportionate infringement on applicant's right to privacy - Tribunals of Inquiry (Evidence) Act 1921(11 & 12 Geo 5, c 7) - Constitution of Ireland 1937, Article 40.3 - Relief refused (2004/1131JR - Hanna J -28/6/2005) [2006] IEHC 301 Caldwell v Judge Mahon

The applicant contended inter alia that the respondents had acted ultra vires and in breach of the applicant’s constitutional right to privacy in that: phases 2-8 of the Carrickmines II Module were outside the terms of reference of the Tribunal; the holding of public hearings was unjustified, unnecessary and disproportionate; the Tribunal erred in holding that it did not have a discretion under the amended terms of reference not to proceed with an inquiry; and the Tribunal acted in breach of natural justice in refusing to hear submissions from counsel for the applicant.

Held by Hanna J. in refusing the applicant relief that in seeking to review the Tribunal the applicant had a great mountain to climb and while it was by no means unassailable one would need to stare irrationality in the face before it could be surmounted. The applicant’s case must fail for reasons of delay.

Reporter: R.W.

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

2 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

3 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."

4 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."

5 Sub paragraph (d) of paragraph j (1) specifically refers to the Carrickmines II Module and Related Issues.

6 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.

7 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.

8 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.

9 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

10 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:-

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

12 · 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.

13 · 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.

14 · 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.

15 · The respondents dispute all of the foregoing.

16 · They assert they were acting intra vires.

17 · The applicant does not...