O'Callaghan and Others v Judge Mahon and Others

• Jurisdiction: Ireland
• Judge: O'Neill J.
• Judgment Date: 06 October 2009
• Neutral Citation: [2009] IEHC 428
• Court: High Court
• Date: 06 October 2009

[2009] IEHC 428

THE HIGH COURT

[No. 49 J.R./2009]

O'Callaghan & Ors v Judge Mahon & Ors

Owen O'Callaghan, John Deane, Riga Limited, Barkhill Limited, Aidan Lucey, Claire Cowhig and CHK Partnership

Applicants

And

Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys, Members of the Tribunal of Inquiry into Certain Planning Matters and Payments

Respondents

O'CALLAGHAN v JUDGE ALAN MAHON & ORS 2006 2 IR 32

PRENDIVILLE v MEDICAL COUNCIL 2007 IEHC 427

MURPHY v FLOOD TRIBUNAL 2006 IEHC 75

MAXWELL v DEPT OF TRADE & INDUSTRY 1974 2 AER 122

DESMOND v MORIARTY 2004 1 IR 334

BAILEY v FLOOD UNREP SUPREME 28.7.1998

HAUGHEY v MORIARTY 1993 3 IR 1

HAUGHEY, RE 1971 IR 217

PROCEDURES AT INQUIRES THE DUTY TO BE FAIR 1995 LQR 111 OCT 596

MURPHY v FLOOD TRIBUNAL 2006 IEHC 75

MAXWELL v DEPT OF TRADE & INDUSTRY 1974 2 AER 122

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

O'CALLAGHAN v JUDGE ALAN MAHON & ORS 2006 2 IR 32

MAXWELL v DEPT OF TRADE & INDUSTRY 1974 2 AER 122

BAILEY v FLOOD UNREP SUPREME 28.7.1998

TRIBUNALS

Tribunal of inquiry

Judicial review - Draft findings - Submissions invited by tribunal - Applicants seeking to compel tribunal to circulate draft findings prior to making submissions - No specific reference to applicants in terms of reference - Fair procedures - Audi alteram partem - Inquisitorial process - Public Inquiry - Whether entitlement to sight of provisional findings - Murphy v Flood Tribunal [2006] IEHC 75 (Unrep, Smyth J, 14/02/2006) followed; O'Callaghan v Mahon [2005] IESC 9, [2005] IEHC 265 [2006] 2 IR 32, Maxwell v Department of Trade and Industry [1974] 2 All ER 122, and In re Haughey [1971] IR 217 considered; Prendiville v Medical Council [2007] IEHC 427 [2008] 3 IR 122, Desmond v Moriarty [2004] IESC 3 [2004] 1 IR 334, Haughey v Moriarty [1999] 3 IR 1 and Bailey v Flood (Unrep, SC, 28/7/1998) distinguished - Tribunals of Inquiry (Evidence) Act 1921 - Relief refused (2009/49JR - O'Neill J - 6/10/2009) [2009] IEHC 428

O'Callaghan v Mahon

Facts The applicants sought by way of judicial review an order of certiorari quashing the decisions of the respondents refusing to furnish to the applicants a copy of any proposed draft findings referring to the said applicants to be incorporated in the report to be prepared by the tribunal of inquiry of which the respondents were members. The applicants also sought an order of mandamus directing the respondents to provide such draft findings to the applicants. The applicants had given evidence as witnesses before the tribunal and were subsequently invited to make submissions as they saw fit for the tribunal's consideration prior to its determination. Prior to the commencement of the tribunal the applicants were furnished with a brief containing statements from proposed witnesses. The applicants were also furnished with extracts from any relevant statements or documents relating to evidence that had the potential to adversely affect them and were given the opportunity to cross-examine witnesses.

Held by O'Neill J. in dismissing the application: That there was no question but that the applicants had amply notice of the evidence that was of individual concern to them and there was no question but that they had an ample opportunity to deal with it. Consequently, the applicants were not in any way impeded in making submissions or in dealing with additional facts that arose in evidence concerning them. Natural and constitutional justice did not require that the applicants be given the provisional findings of the tribunal in so far as they affected the applicants.

Reporter: L.O'S.

1. Relief Sought

2 1.1 Leave was granted by this Court (Peart J.) to the applicants to seek the following reliefs by way of judicial review on the 19 ^th January, 2009:-

1 An order of certiorari quashing the decisions of the 28 ^th October, 2008, the 19 ^th December, 2008, and the 22 ^nd December, 2008, whereby the respondents refused to furnish to each of the applicants a copy of any proposed draft findings referring to the said applicants to be incorporated in the report to be prepared by the tribunal of inquiry of which the respondents are the members.

2 An order of mandamus directing the respondents to provide to each of the applicants a copy of any proposed draft findings referring to the said applicants to be incorporated in the report to be prepared by the tribunal of inquiry of which the respondents are the members and to provide the said applicants with a reasonable opportunity of being heard thereon.

3 A declaration that each of the applicants are entitled to copies of any proposed draft findings referring to the said applicants which the respondents propose to incorporate into their report, for the purpose of making a submission thereon to the respondents.

2. Factual background

2 2.1 The first, second, fifth and sixth applicants are witnesses who gave evidence at the Tribunal of Inquiry into certain Planning Matters and Payments (" the tribunal"), which was established by resolution of the Oireachtas in October 1997 to investigate the planning history of 726 acres of land in North County Dublin. Its terms of reference were later extended by a number of instruments to empower it to investigate all improper payments made to politicians in connection with the planning process. The tribunal initially conducted its investigations in private and then began public hearings, extending over 900 days.

3 2.2 The involvement of the first named applicant with the tribunal arises from an acquisition by the fourth named applicant of an interest in the Quarryvale site in West County Dublin. The first named applicant is a property developer and a director of the third and fourth named applicants. The second named applicant is a solicitor and property developer and a director of the third and fourth named applicants. The fifth named applicant is secretary of the third and fourth named applicants and employed by them. The sixth named applicant is an accountant in practice in the seventh named applicant. All of the applicants, with the exception of the fifth named applicant, have been granted legal representation at the tribunal. The first, second, fifth and sixth named applicants have given evidence to the tribunal. The first named applicant has provided fifteen statements to the tribunal and the second named applicant has provided three statements to it. The fifth and sixth named applicants have each furnished one statement to the tribunal. In addition, the first and second named applicant has sworn eleven affidavits of discovery and has provided in excess of 35,000 documents to the tribunal. The seventh named applicant has produced more than 8,930 documents to the tribunal by way of discovery.

4 2.3 By letters dated the 13 ^th October, 2008, and the 23 ^rd October, 2008, the tribunal invited the applicants to make submissions as they saw fit for its consideration prior to its determination, which could include the following:-

2 2 "1. Reference to any issues which your client believes arises in the context of the module in which he gave evidence;

2 2. Reference to any evidence which your client believes supports his evidence to the Tribunal;

3 3. Reference to any evidence which your client believes establishes that the evidence of the other witnesses should be rejected on any particular issue;

4 4. Reference to the relevance of any particular evidence to any of the issues raised in the module;

5 5. Reference to any acts or omissions relevant to the issue of cooperation with the Tribunal by your client or by others."

5 2.4 The applicants enquired on the last day of the public tribunal hearings, that is, the 22 ^nd October, 2008, as to whether or not draft findings or criticisms would be made available to them in order for them to make submissions on them. The tribunal indicated that it would not be circulating copies of draft findings. It confirmed this position in correspondence dated the 28 ^th October, 2008. The third and fourth paragraphs of that letter read as follows:-

"All relevant parties have had access to the evidence given by witnesses in the course of the public hearings, and all parties have been provided with the opportunity to cross-examine witnesses where appropriate. Furthermore all parties whose evidence may be referred to in the Tribunal's Report have been provided with an opportunity to furnish written submissions to the Tribunal.

In arriving at its said decision, the Tribunal has had regard to the similar approach adopted by this Tribunal in relation to its Second and Third Interim Reports in 2002 and 2003 respectively, the approach adopted by most Tribunals of Inquiry in this country in recent years, and the Judgment of Smyth J. in Joseph Murphy & Ors. -v- Mahon (delivered 14.2.2006)."

6 2.5 The applicants, through their solicitors, again sought draft findings by letter dated the 17 ^th December, 2008. Paragraphs 24 and 26 of that letter outlines the applicants' position in the following terms:-

"Our clients have been involved in a lengthy and time consuming process before the Tribunal. They have co-operated fully, made discovery and given oral evidence. They now wish to make written submissions to the Tribunal. It is possible to divine from the evidence of Mr. Tom Gilmartin and Mr. Eamon Dunphy allegations which may concern wrongdoing on the part of our clients. Our clients will, insofar as they can identify them, make written submissions concerning these allegations. However, it is unduly burdensome and oppressive to have to make submissions in the absence of knowledge of any other allegations being investigated by the Tribunal concerning our clients. Much of the evidence did not deal with issues raised by Mr. Tom Gilmartin or Mr. Eamon Dunphy and yet our clients are being...