O'Callaghan v Mahon
Jurisdiction | Ireland |
Judge | Denham J.,Mr. Justice Hardiman,MR JUSTICE FENNELLY |
Judgment Date | 30 March 2007 |
Neutral Citation | [2007] IESC 17 |
Court | Supreme Court |
Docket Number | [S.C. No. 398 |
Date | 30 March 2007 |
and
[2007] IESC 17
Denham J.
Hardiman J.
Geoghegan J.
Fennelly J.
Finnegan J.
THE SUPREME COURT
PRACTICE AND PROCEDURE
SUCCESSION
Tribunal of inquiry Fair procedures - Objective bias - Prejudgment - Whether bias can be inferred from pattern of previous decisions - Extent of prejudicial statements required to satisfy test for prejudgment - Whether objective bias established - Appeal dismissed (398/2006 - SC - 30/3/2007) [2007] IESC 17O'Callaghan v Mahon
Facts The applicants sought to stop the Tribunal from investigating further or making any findings against the applicants. They claimed that the Tribunal had not treated them fairly, in particular by not treating them impartially in comparison with a witness, Mr. Tom Gilmartin and secondly, that the Tribunal had behaved in such way as to give rise to a reasonable apprehension of objective bias.
Held by the Supreme Court (Denham, Hardiman, Geoghegan, Fennelly and Finnegan JJ) in dismissing the appeal that there was no basis upon which to stop the Tribunal from its work.
Reporter: R.W.
CONSTITUTION ART 40.3
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Judgment delivered the 30th day of March, 2007 by Denham J.
1. These are judicial review proceedings in which Owen O'Callaghan, John Deane, Riga Limited and Barkhill Limited, the applicants/appellants, hereinafter referred to as "the applicants", have appealed to this Court from the judgment and order of the High Court (Smyth J.) delivered on 10th October, 2006, which order refused the applicants the reliefs they sought. Judge Alan Mahon, Judge Mary Faherty and Judge Gerald Keys, are members of the Tribunal of Inquiry into Certain Planning Matters and Payments, and are hereinafter referred to as "the Tribunal".
2. In these proceedings the applicants seek to stop the Tribunal from investigating further, or making any findings against, the applicants, on the basis of bias, partiality and/or unfairness by Tribunal.
3. Inspite of the fact that these are judicial review proceedings, a significant feature of this case is the very high level of factual detail in the pleadings and in the submissions, as to the proceedings before the Tribunal. To address fully the issues submitted by the applicants I consider that it is necessary to refer in some detail to the allegations.
4. The applicants were granted leave to apply by way of judicial review for the following reliefs:
(i) an order of prohibition by way of judicial review prohibiting the Tribunal from further investigating or making any finding in relation to matters affecting the applicants;
(ii) an order of certiorari by way of judicial review quashing the decision of the Tribunal whereby the Tribunal refused to desist from further investigating or making any findings in relation to matters affecting the applicants.
5. The grounds upon which the applicants were granted leave to seek judicial review were lengthy, replete with facts, and as follows:
(a) The first named applicant is a property developer and is a director of Barkhill Limited having its registered office at Mahon Industrial Estate, Cork and Riga Limited having its registered office at Mahon Industrial Estate, Cork. The second named applicant is a solicitor acting as a consultant to the firm of Ronan Daly Jermyn, Solicitors, 12 South Mall, Cork and is a property developer and a director of Barkhill Limited and Riga Limited.
i (b) (i) The applicants have been granted representation at the Tribunal. The Tribunal was established by the Oireachtas in October 1997 and its terms of reference has been expanded on a number of occasions to investigate alleged improper payments to politicians in connection with the planning process. The Quarryvale I Module of the Tribunal commenced in public session on the 3rd of March 2004 being day 455 and is entitled "Arlington/Quarryvale and related matters". The said module was concerned with allegations of corruption relating to lands at Bachelor's Walk in Dublin City and Quarryvale in west County Dublin.
(ii) The Quarryvale I Module deals with the years 1987 to 1990.
(c) A further module of the Tribunal was due to commence on the 29th of November 2005 to deal with Quarryvale lands thereafter, from the years 1990 to 1996. The Tribunal had not yet commenced public hearings into the Quarryvale 2 Module and while the majority of the public hearings dealing with the first module have been completed, it was envisaged that the Tribunal would resume further hearings to complete outstanding issues.
(d) Prior to the commencement of the Quarryvale I module, the Tribunal caused to be distributed to relevant interested parties a brief containing statements and documents. The brief was accompanied by a letter from the Tribunal. This brief was intended to consist of all evidence to be adduced before the Tribunal for the first module and was distributed to the applicants before they were granted representation. The brief was subsequently thereafter supplemented by the Tribunal on a number of occasions.
(e) On the 12th of December 2003 the Tribunal circulated a document entitled "An explanatory memo re: Rezoning Module". This document purported to describe the procedure adopted by the Tribunal in the conduct of the inquiries in public. This indicated that relevant material would be circulated as part of the brief.
(f) The brief for the Quarryvale I Module was circulated to interested parties and contains statements from various proposed witnesses with relevant documentation. It included a lengthy statement from Tom Gilmartin dated the 25th of May 2001, large parts of which were redacted apparently on the basis that they did not concern that...
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