O'Callaghan & ors -v- Judge Alan Mahon & ors, [2007] IESC 17 (2007)

Docket Number:398/06
Party Name:O'Callaghan & ors, Judge Alan Mahon & ors
Judge:Hardiman J. / Denham J. / Fennelly J.

JUDGMENT BY: Hardiman J.


Denham J. 2006/398

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.









JUDGMENT of Mr. Justice Hardiman delivered on the 30th day of March, 2007.

The respondents are the current members of the Tribunal of Inquiry into certain planning matters and payments. This Tribunal was established originally in October, 1997 with Mr. Justice Flood as its sole member. It was then to inquire into the planning history of specified lands in North Dublin. The terms of reference however were subsequently extended and in the upshot the Tribunal is still sitting. The original sole member has long since retired from it having published some reports on certain matters within its remit. The respondents are the current members of the Tribunal and they sit together to transact the Tribunal's business.

The nature of Tribunal and the present case.

The Tribunal was established by Instrument of the Minister for the Environment and local government dated the 4th November, 1997, as amended by a further Instrument dated the 15th July, 1998. These, in turn, followed resolutions of Dáil Éireann, resolving that it was expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, "to enquire urgently into and report to the clerk of the Dáil and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance…".

The Tribunal, accordingly, is intended and empowered urgently to carry out a public inquiry into matters specified in the resolutions which are regarded as being matters of urgent public importance. Notwithstanding this, however, the bulk of the Tribunal's work in the period, extending now to almost a decade, since its establishment, has been conducted in private. The nature of this work done in private, and the basis on which it is done, are central to the present case. The applicants complain that the Tribunal dealt intensively in private with a person whose hostility to them is manifest, Mr. Tom Gilmartin. He has made allegations against them which the Tribunal is investigating. They claim that these interactions, at least 36 in number, took place at meetings in Ireland and in the United Kingdom and in a series of immensely long telephone conversations. The applicants claim that they led, just before the public hearings of March, 2004 to the production of a statement of Mr. Gilmartin's proposed evidence which was notable (in hindsight) for the withholding of any information which might adversely affect his credibility or otherwise be of any use in cross-examining him. This course of action, however, did not have its desired effect because Mr. Gilmartin was simply incapable of confining his evidence to the terms of the statement which the Tribunal had circulated. In the course of and after an uncontrolled and possibly uncontrollable tirade of un-notified material from Mr. Gilmartin, it became clear that the Tribunal had far more by way of documentation from and relating to Mr. Gilmartin and his allegations than had been circulated. Furthermore, Mr. Gilmartin expressly conceded that this un-circulated material might contain information inconsistent with what he said at the public hearing.

This development led to the first judicial review proceedings in which Mr. O'Callaghan and the Tribunal have been involved, 2004/324 JR. As a result of these proceedings, and further proceedings in the High Court, the applicants are now in possession of a considerable volume, though not all, of the material previously withheld by the Tribunal. Having seen this material, for the first time, the applicants make a new case. Very broadly, they say that the nature and content of the withheld material is such that the Tribunal's act in suppressing it gives rise to the reasonable inference of prejudgment of certain important matters, notably the credibility of Mr. Gilmartin. They further say that this inference is strengthened by other aspects of the history of the case, to be discussed below. The Tribunal very strongly deny this. They concede that they made a grave error in withholding from Mr. O'Callaghan and the other applicants the material which they now have as a result of the previous judicial review proceedings. But the Tribunal says that, now that the applicants have it, they can proceed to use it to cross-examine Mr. Gilmartin and to make further inquiries. They argue that the mistake which they (the Tribunal) made in withholding the material was of a legal nature; this has now been corrected; there is no reason why they should not now proceed to hear and reach conclusions upon what Mr. Gilmartin has to say about Mr. O'Callaghan and his associates.

Power to sit in private. The resolutions of Dáil Éireann mentioned above contain the following material:"And that the Tribunal be requested to conduct its inquiries in the following manner to the extent that it may do so consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 - 1998:

(i) To carry out such preliminary investigations in private as it thinks fit (using all the powers conferred on it under the Acts), in order to determine whether sufficient evidence exists in relation to any of the matters referred to… above to warrant proceeding to a full public inquiry in relation to such matters;

(ii) To inquire fully into such matters referred to [above] in relation to which such evidence may be found to exist; …".

It will thus be seen that the resolution of Dáil Éireann envisaged "preliminary investigations in private" for the purpose of determining whether sufficient evidence existed in relation to particular matters to warrant proceeding to a full public inquiry in relation to them. It is indisputable that the portion of the Tribunal's work carried out in private has gone far beyond that very restricted threshold issue. At the moment it is sufficient to say that amongst the things which occurred in private were interviews with people who are willing to be interviewed, the scrutiny of documents, the preparation of statements and, at least in one case, the preparation of an affidavit for a person who was intended to give evidence. In Mr. Gilmartin's case, as noted above, there was also a considerable number of telephone conversations, some immensely long, on topics relevant to the work of the Tribunal. Written material prepared by him and his then Solicitor was also received in private session. An immunity from prosecution was procured for Mr. Gilmartin from the D.P.P. through the Tribunal.

The Tribunal has been dealing with Mr. Tom Gilmartin at least since 1998. This gentleman was at one time involved in assembling parts of the land which constituted the Quarryvale site in West Dublin. In the course of this he came to have dealings with Mr. Owen O'Callaghan and Companies controlled by him. The latter is a director of the two corporate plaintiffs in the present application. Mr. John Deane is a well known solicitor who has participated with Mr. O'Callaghan in certain property developments.

The business dealings between Mr. O'Callaghan and his associates and Mr. Gilmartin did not end to the latter's satisfaction. As a result of this, as is quite clear from his evidence referred to below, Mr. Gilmartin bears a considerable animus against Mr. O'Callaghan and indeed against others who are not concerned in the present litigation. He has made allegations against those parties. All of these allegations are dramatic, and some of them are quite extraordinary. A number of them would clearly amount to breaches of the criminal law, if true.

The immediate background to the present action relates to the "Quarryvale 1" module of the Tribunal's public sittings. These took place in March, 2004. It was preceded by the circulation in December, 2003 of and "Explanatory Memo re Rezoning Module", a further Explanatory Memorandum of January, 2004 and an enormous "Brief" consisting of over 3,200 pages. The subject of the module was to be Mr. Gilmartin's business dealings in Dublin between 1987 and 1990. The brief included a statement of Mr. Gilmartin more than half of which, in the form in which it was served on Mr. O'Callaghan, was blacked out or "redacted".

Mr. Gilmartin's oral evidence commenced on the 3rd March, 2004, and did not, as far as Mr. O'Callaghan was concerned, at all correspond to the statement which had been circulated. Mr. Gilmartin publicly abused Mr. O'Callaghan, calling him a crook and a blackmailer. He then proceeded to make eight entirely un-prefigured allegations. These are as follows:(1) Mr. Gilmartin was shown by counsel for the Tribunal a written agreement into which he had entered with Mr. O'Callaghan on the 31st January, 1989. This was signed by him and his signature had been witnessed by his solicitor. His previous complaint had been that the agreement did not contain all the terms actually agreed between himself and Mr. O'Callaghan, and on which they had shaken hands. In evidence, however, he said that the agreement which he was shown was not the agreement which he signed and that it had been falsified by Mr. O'Callaghan and his (Mr. O'Callaghan's) solicitor so as to alter its terms.

(2) That at their first meeting of the 7th December, 1988, Mr. O'Callaghan told him that he had just come from a dinner for the launch of the Lee tunnel and that he had had the line of the tunnel altered so as to suit a named site that he owned.

(3) That one of the reasons why he had paid £50,000 to the then Minister for the Environment by way of a cheque in which he had left the payee blank was...

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