O'Callaghan v Mahon

JurisdictionIreland
JudgeMr. Justice Hardiman,Mr. Justice Geoghegan
Judgment Date29 July 2005
Neutral Citation[2005] IESC 9
Date29 July 2005
CourtSupreme Court
Docket Number[S.C. No. 360 of 2004] [2004
O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL)

Between:

OWEN O'CALLAGHAN
Applicant/Respondent

and

JUDGE ALAN MAHON S.C., JUDGE MARY FAHERTY

and

JUDGE GERALD KEYS, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS and PAYMENTS
Respondents/Appellants

and

TOM GILMARTIN
Notice Party

[2005] IESC 9

Murray C.J.

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

360/04

THE SUPREME COURT

TRIBUNALS

Tribunal of inquiry

Fair procedures - Evidence - Disclosure -Conduct of tribunal - Right to good name -Prior statements given by witness to the tribunal - Allegations of impropriety against applicant - Summary of statements given to applicant - Witness going beyond disclosed evidence - Whether necessary to disclose all prior statements of witness - Whether sufficient to give redacted statements -Whether limitations put on use of disclosed statements - In re Haughey [1971] IR 217,Stringer v Irish Times Ltd [1995] 2 IR 108and Kiely v Minister for Social Welfare [1977] IR 267 followed - Disclosure ordered(360/2004 - SC - 9/3/2005) [2005] IESC 9

O'Callaghan v Judge Mahon

Material contained in a written statement given to the tribunal by the notice party was furnished to the applicant in edited form with in excess of half of the content blanked out. Allegations subsequently made in oral evidence were not contained in the edited version and the tribunal refused to furnish the applicant with the original material on the ground of confidentiality. The High Court granted a declaration that such refusal constituted a breach of the applicant's constitutional right to fair procedures and ordered that the tribunal's decision be quashed.

Held by the Supreme Court (Murray CJ; Denham; Hardiman; Geoghegan and Fennelly JJ) in dismissing the appeal of the tribunal that a person whose reputation is impugned in proceedings before a tribunal of enquiry enjoys rights analogous to those of a defendant in a criminal trial. Amongst these rights are the right to cross-examine one's accuser and where a person has made a previous written statement and subsequently makes allegations in oral evidence some of which, of his admissions, are inconsistent with the material communicated privately to the tribunal, for the latter to deprive him of same amounts to a denial of natural justice to the person whose name has been impugned. The tribunal's claim to confidentiality cannot be maintained unless it can establish that the public interest in preserving the secrecy of the document overrides the public interest in providing the person impugned with fair procedures in his own defence. Further, to permit the tribunal to unilaterally adopt its own policy on the findings of material would be to allow it in effect to legislate for the deprivation of the rights of the applicant to which he is entitled.

Reporter: F. McE.

MAGUIRE & ORS v ARDAGH & ORS (OIREACHTAS JOINT COMMITTEE ON JUSTICE) [ABBEYLARA CASE] 2002 1 IR 385

HAUGHEY, IN RE 1971 IR 217FLOOD v LAWLOR 1999 3 IR 107

COMMON LAW PROCEDURE ACT 1854 S23

COMMON LAW PROCEDURE ACT 1854 S24

CRIMINAL LAW PROCEDURE ACT 1865

J (B) v DPP 2003 4 IR 525O'C (P) v DPP 2000 3 IR 87

AG v CRADDEN 1955 IR 130

MCGRATH EVIDENCE 2005

PEOPLE, AG v TAYLOR 1974 IR 97

R v COLL 1889 24 LR IR 522

O'C (J) v DPP 2000 3 IR 478

BLACKSTONE CRIMINAL PRACTICE 2002 1170

ROWE & DAVIS v UNITED KINGDOM 2000 30 EHRR 1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS 1950 ART 1

SPECIAL COMMISSION ACT 1888

KIELY v MIN FOR SOCIAL WELFARE 1977 IR 267

AG v GUARDIAN NEWSPAPERS (NO 2) 1990 1 AC 109

TOULSON & PHIPPS CONFIDENTIALITY 1996ALFRED CROMPTON AMUSEMENT MACHINES LTD v CUSTOMS & EXCISE COMMISSIONERS 1974 AC 405

R v CHIEF CONSTABLE OF WEST MIDLANDS POLICE 1995 1 AC 274

HAUGHEY & MULHERN v MORIARTY & ORS 1999 3 IR 1

NATIONAL IRISH BANK LTD & ANOR v RADIO TELIFIS EIREANN (RTE) 1998 2 IR 465

STRINGER v IRISH TIMES LTD 1995 2 IR 108

CONSTITUTION ART 34.1

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

T A MILLER LTD v MIN HOUSING 1968 1 WLR 992

R v DEPUTY INDUSTRIAL INJURIES COMMISSIONER EX PARTE MOORE 1965 1 QB 456

1

JUDGMENT of Mr. Justice Hardiman delivered the 9th day of March 2005.

2

This is the appeal of the appellants, the members of the tribunal mentioned in the title ("the tribunal"), against the judgment and order of the High Court (O'Neill J.) delivered on the 7th July, 2004, and perfected on the 27th July, 2004. By that order, the Court granted a declaration:

"... That the refusal by the respondents to permit the applicant through his legal representatives access to the documents which are relevant to the present or current module of the inquiry (and not to include notes made by counsel solely for their purpose but to include information recorded or transcribed from the notice party by counsel) recording prior oral and written statements by Tom Gilmartin to the Tribunal of Inquiry into certain planning matters and payments, for the purpose of cross-examining the said Tom Gilmartin, amounts to a failure by the respondents to observe and protect the applicant's rights to fair procedure and to natural and constitutional justice".

3

The Court further ordered, in lieu of making an order of certiorari, that the tribunal "forthwith send before the Court here for the purpose of being quashed the aforesaid decision made by them on the 24th March, 2004 and all records and entries relating thereto and that same be quashed without further order,"

4

The tribunal was originally established in October, 1997. Its original remit was to investigate the planning history of some lands in North County Dublin. However, its terms of reference were widened in June, 1998, to enable it to investigate all improper payments made to politicians in connection with the planning process. The tribunal is currently investigating certain matters which took place in the period between 1987 and 1990. According to the statement of the chairman, Judge Mahon, at the opening of this module on the 3rd March, 2004, the module is entitled "Arlington/Quarryvale and related matters." The chairman stated that the module "is essentially concerned with allegations of corruption relating to lands at Bachelors Walk in Dublin City and Quarryvale in West County Dublin."

5

The applicant, Mr. O'Callaghan, is a property developer and a director of a number of companies in that line of business. He has been so engaged for upwards of 35 years. He has property development interests in Cork, Dublin and the UK, some of which are partnerships with other persons or companies. He is an Irish citizen and he and his family reside in Cork. His relevance to the present module arises from the fact that a company which he controls acquired an interest in a site at Quarryvale, where the Liffey Valley Shopping Centre now is. He did not have any interest in the Bachelors Walk site.

6

In October, 1987, through another company, he acquired lands at Neilstown/Balgaddy in West Dublin and subsequently entered into an agreement dated the 31st January, 1989, whereby Mr.Tom Gilmartin agreed to purchase the site for a sum of £3.5 million payable by instalments. Mr. O'Callaghan says that because of the default of Mr. Gilmartin in completing this agreement, he, Mr. O'Callaghan, eventually acquired an interest in Barkhill Limited, which was a company used by Mr. Gilmartin to acquire lands at Quarryvale. Thereafter Mr. O'Callaghan and Mr. Gilmartin proceeded to develop Quarryvale until, in 1996, Mr. Gilmartin was bought out of the project for £7.76 million.

7

A lucid summary of these transactions is to be found in the judgment of the learned High Court judge under the heading "Background". I gratefully adopt this summary. However, a short account of the procedural background to the tribunal's decision which Mr. O'Callaghan challenges is necessary to place in context the central event giving rise to these proceedings.

Procedural background.
8

Mr. Gilmartin, for his part, has chronicled his involvement in the above-mentioned sites and in a separate site at Bachelors Walk in Dublin City centre. Arising out of these matters he has made allegations which are, inter alia, now the subject matter of the investigation being carried out by the tribunal. For the sake of efficiency, the chairman said, this investigation is taking place in two modules, the first concerning the period between 1987 and 1990 and the second the period thereafter.

9

Both Mr. O'Callaghan and Mr. Gilmartin have had various interactions with the tribunal before it went into the present public phase. Mr. O'Callaghan says, without contradiction, that he has made an extensive statement at the tribunal's request and provided four further statements on specific matters in relation to his dealings with Tom Gilmartin and other persons. This has involved him in substantial costs and the expenditure of substantial amounts of his own personal time. He has also made discovery of some 35,000 pages of documents.

10

Mr. Gilmartin, though a notice party to these proceedings, has not taken any part in them and his counsel sought and were permitted to withdraw both in the High Court and in this Court. No affidavit has been sworn by him or on his behalf. However, it is clear that he too had significant interactions with the tribunal before it went into public hearing. The precise circumstances of this interaction are far from clear, because Mr. Gilmartin has said nothing relevant and the tribunal has observed a studied and at times Delphic economy of disclosure on the topic. It appears however that it led to the generation of three sorts of documentary material viz (though not necessarily in this order):

11

(a) Counsel's notes of Mr. Gilmartin's response to questions put to...

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