O'Callaghan v Mahon (No 2)

JudgeO'Neill J
Judgment Date29 July 2005
Neutral Citation[2005] IEHC 265
CourtHigh Court
Date29 July 2005

[2005] IEHC 265


[No. 324 JR/2004]







Tribunal of inquiry

Fair procedures - Disclosure - Conduct of

tribunal - Right to good name - Prior

statements given by witness to 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 - Disclosure of unredacted statements ordered (2004/324JR - O'Neill J- 29/7/2005) [2005] IEHC 265

O'Callaghan v Judge Mahon

Facts: The respondents sought a declaration that they had complied with an order of the High Court requiring them to disclose certain documents to the applicant regarding prior oral and written statements made by a named individual (the notice party) to the Tribunal of Inquiry into Certain Planning Matters and Payments for the purposes of cross-examining the said individual, by providing to the applicant certain redacted documents. The applicant objected to all but 2 of those redactions and submitted that the redactions could only be justified on the basis that the material redacted was irrelevant to the credibility of the notice party.

Held by O’Neill J. in allowing some of the redactions to be made but refusing to permit others: That in order to vindicate the applicant’s good name, it was necessary that he should have access to the redacted material for the purpose of cross-examining the notice party. Accordingly, the order of the High Court extended to material relevant to the issue of the notice party’s credibility but not directly relevant to the factual allegations in the two modules of the inquiry.

Reporter: L.O’S.


JUDGMENT of O'Neill J. delivered the 29th day of July, 2005


The respondents are the moving party in this application which was initiated by notice of motion, in which the respondents seek the following reliefs:


1. A declaration that the respondents herein are in compliance with the order of the High Court dated the 14th July, 2004, in providing to the applicant the redacted documents as exhibited in the grounding affidavit of Susan Gilvarry sworn on the 15th April, 2005.


2. Further in the alternative and orders specifying the documents or parts thereof which are to be provided to the applicant herein by the respondents in compliance with the order of this on other court date of the 14th July, 2004.


The notice party was served with the notice of motion but there was no appearance by him or on his behalf at the hearing of this application.


The part of the order of this court of the 14th July, 2004 that is relevant to this application is in the following terms:

"The court doth declare 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 by counsel solely for their purposes 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 right to fair procedures and to natural and constitutional justice."


The following two passages from my judgment delivered on the 7th July, 2004, have been referred to as relevant to this application. The first of these is on p.26 of that judgment and is as follows:

"The tribunal also apprehended a threat to the management of its business by the mixing of material from one module to another. In this case we are concerned only with a very limited category of documents, and of those, only those parts relevant to the current module of the tribunal. In my view in these circumstances there is no risk of bringing the kind of chaos to the business of the Tribunal that has been mentioned."


The other passage occurs at p. 27 and is as follows:

"Accordingly I will grant the declaration sought in the applicant's statement of grounds but will amend the declaration as sought so as to confine the documents concerned to those documents which are relevant to the present or current module of the inquiry. I should make it clear, in this regard, also, that the declaration is not to include notes made by counsel solely for their own purposes, but is to include information recorded or transcribed from the notice party by counsel…".


My judgment was appealed to the Supreme Court and by its judgments delivered on the 9th March, 2005, the Supreme Court affirmed the order of this court made on the 14th July, 2004.


The factual background to this matter is fully set out in my judgment of the 7th July, 2004 and in the judgment of Hardiman J. of the 9th March, 2005, and does not require repetition here.


The following passages are from the judgment of Geoghegan J. with whom Murray C.J. and Denham and Fennelly J.J. concurred appear to bear on the issues arising in this application and they are as follows (at p.4):

"For the purposes of disposing of this appeal and bearing in mind these observations of Henchy J., I think it is sufficient to rely only on In Re. Haughey [1971] I.R. 271 and to state that the tribunal in this case did not comply with the requirements of the Supreme Court laid down in that case".


At p.5:

"The tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested and which may not be available to a court of law, it is always bound to ensure, as far as possible, compliance with constitutional rights and obligations and that, of course, includes the vindication of the person's good name. For all the reasons put forward by Hardiman J. much more eloquently than I would able to do, it was absolutely essential that the documents and materials which were sought for the purposes of carrying out a worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the tribunal against Mr. O'Callaghan and of which he had no prior notice, be duly produced…".


In his judgment Hardiman J. said the following commencing at p.46:

"I have already contrasted the situation which arose before the tribunal, where allegations of great gravity and involving (if true) great turpitude, and depending in large measure on the credibility of a single witness, were made without notice, with other situations which might arise before an inquiry of some sort. The requirements of natural justice will naturally vary depending on the gravity of what is alleged, whether or not personal responsibility is to be established, whether there is a “paper trail” or other body of uncontradicted evidence or corroboration available, whether the inquiry sits in public or in private and other matters. Enquiries which do not seek to fix individuals with responsibility for grave wrongdoing or which, like the Oireachtas DIRT enquiry, have a large volume of uncontradicted material before it, are in obvious contrast to what the facts of this case reveal. No doubt any Court, asked to review a procedural decision of such an enquiring body, would give full weight to those factors, and refrain from interfering lightly with their legitimate procedural discretions. But this tribunal is at another extreme, and features"


• - very grave allegations some of which, if true, would constitute breaches of the criminal law,


• - clear and obvious attacks on the good name of Mr. O'Callaghan which is constitutionally protected,


• - the personal credibility of Mr. Gilmartin as a vital factor,


• - little or nothing in the way of paper trail or corroboration.


• - immediate and extensive media coverage of un-notified allegations.


These features, even without the other procedural and substantive oddities and novelties set out in the first section of this judgment, seem to me to require all of the Re Haughey rights, and a very full scope for their exercise, on the part of a person impugned...."


Following upon the judgments and order of the Supreme Court the respondents conducted an extensive search to find documents which were required to be disclosed pursuant to the order of this court as affirmed by the Supreme Court. This search revealed a total of 54 documents which later became 56 documents because of the inclusion of 2 additional versions of the transcript of an interview between the notice party and his then solicitor.


The respondents now wish to make a very substantial number of redactions in these documents for a variety of reasons which are deposed to in the affidavit of Susan Gilvarry sworn on the 15th April, 2004. The several categories of redactions and the reasons therefore are set out in paras.6 to 16 of that affidavit inclusive and to each redaction is attributed a letter for identification purposes, i.e. A to K inclusive.


These paragraphs in the affidavit of Susan Gilvarry are as follows:


2 "6. The redactions marked with the letter “A” contain notes to file by counsel to the tribunal. The tribunal has made these redactions as this information was excluded by the terms of the...

To continue reading

Request your trial
9 cases
  • O'Callaghan v Mahon
    • Ireland
    • Supreme Court
    • 30 March 2007
    ...v MAHON & ORS (PLANNING TRIBUNAL) 2006 2 1R 32 O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP O'NEILL 29.7.2005 2005/46/9589 2005 IEHC 265 O'CALLAGHAN v MAHON & ORS (PLANNING TRIBUNAL) UNREP O'NEILL 7.7.2004 2004/37/8597 2004 37 8597 DPP v WALL UNREP CCA 16.12.2005 CRIMINAL PROCEDURE A......
  • Redmond v Mr Justice Fergus Flood and Others
    • Ireland
    • High Court
    • 28 March 2012
    ...Corporation [1995] 2 ILRM 561; Goodman International v Mr Justice Hamilton [1992] 2 IR 542 and O'Callaghan v Mahon [2005] IESC 9 & [2005] IEHC 265, [2006] 2 IR 32 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 27, r 1 and O 84, r 21 - European Convention of Human Rights Ac......
  • Health Services Executive v Judge White & Others (notice parties)
    • Ireland
    • High Court
    • 22 May 2009
    ...v Irish Land Commission [1981] IR 23, DPP v JB [2006] IESC 66 (Unrep, Supreme Court, 29/11/2006), O'Callaghan v Mahon [2005] IESC 9 & [2005] IEHC 265 [2006] 2 IR 32, Jespers v Belgium [1981] 27 DR 61, Rowe & Davis v United Kingdom (2000) 30 EHRR 1, DPP v Browne [2008] IEHC 391 (Unrep, McMah......
  • J & E Davy v Financial Services Ombudsman and Others
    • Ireland
    • Supreme Court
    • 12 May 2010
    ...1980). National Maternity Hospital v. Information Commissioner[2007] IEHC 113, [2007] 3 I.R. 643. O'Callaghan v. Mahon [2005] IESC 9, [2005] IEHC 265, [2006] 2 I.R. 32. O'Neill v. Irish Hereford Breed Society Ltd. [1992] 1 I.R. 431, [1991] I.L.R.M. 612. R. (Heather, Moor and Edgecomb Ltd.) ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT