Charles Chawke v Judge Alan Mahon and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 24 July 2014
• Neutral Citation: [2014] IEHC 398
• Court: High Court
• Docket Number: [2013 No. 299 JR]
• Date: 24 July 2014

Chawke v Judge Mahon & Ors (Planning Tribunal)

JUDICIAL REVIEW

BETWEEN

CHARLES CHAWKE

APPLICANT

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY AND JUDGE GERALD KEYES, MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS

[2014] IEHC 398

[No. 299 J.R./2013]

THE HIGH COURT

Judicial review – Tribunals & inquiries – Mahon Tribunal – Finding of failure to co-operate with Tribunal by applicant

Facts: The Mahon Tribunal had called the applicant as a witness into the ongoing proceedings regarding planning matters and payments. The Tribunal had notified the applicant that it considered he had given false evidence to the Tribunal, and proposed to make a finding of non-cooperation in respect of this. The applicant was therefore only awarded a proportion of his costs, and now sought judicial review of the finding of non-cooperation.

Held by Baker J, that earlier case law confirmed that witnesses were not strictly entitled to fair procedures. However, the Court was satisfied that an inquisitorial process could often require compliance with the rules of natural justice. Having considered the Tribunal"s questioning of the applicant, together with the correspondence between the parties, the Court held that the lack of notification of certain matters to the applicant amounted to a lack of fairness. Boyhan & Ors v The Tribunal of Inquiry into the Beef Processing Industry [1993] 1 IR 210 and Re Haughey [1971] IR 217 considered.

The application would therefore be granted.

The Tribunal

1 1. This judicial review is a challenge to the decision of the respondents of the 29 ^th January, 2103, to make a finding that the applicant had failed to co-operate with the Tribunal and/or knowingly gave false or misleading information to the Tribunal in the course of its hearings.

2 2. The applicant is a publican and was a witness in one module of the Tribunal of Inquiry into Certain Planning Matters and Payments, ("the Tribunal") conducted into certain alleged payments to politicians or others with a decision making role in planning matters. The Terms of Reference of the Tribunal originally appointed by instrument of the Minister for the Environment and Local Government on 4 ^th November 1997, were amended by various instruments between then and 3 ^rd December 2004, and inter alia, required the Tribunal to inquire into and make findings and recommendations in regard to the identity of all recipients of payments made to political parties or members of either House of the Oireachtas or members or officials of the Dublin local authority or other public officials named, and to inquire whether the persons so receiving the monies were influenced directly or indirectly by the offer or receipt of any such payments or benefits.

The Quarryvale II module

3 3. Mr. Chawke's evidence was given in the Quarryvale II module involving an inquiry into the personal finances of Mr. Bertie Ahern, who was, during the relevant times, a Minister of Government. For that purpose the Tribunal investigated certain lodgements into bank accounts of Mr. Ahern, including a composite lodgement of IR£22,500 on 30 December 1993. Mr. Ahern himself had, through his accountant, provided the Tribunal with a report that ten contributions of IR£2,500 each had been received from identified individuals, one of whom was Mr. Chawke. The Tribunal, inter alia, was investigating whether payments were made to Mr. Ahern and whether these were potentially corrupt in that the persons making them or were led to believe that they would receive certain advantages in planning matters. The evidence of Mr. Chawke was broadly speaking that he had lent to Mr. Ahern the sum of IR£2,500 to assist him in defraying certain legal bills and that this money had been repaid.

4 4. On 22 ^nd March 2012, the Tribunal issued its Report in which it, inter alia,made a finding that no payment had in fact been made to Mr. Ahern and which expressly rejected the evidence of Mr. Chawke and various other witnesses that these payments had been made to Mr. Ahern and repaid by him.

Chronology of the involvement of the applicant with the enquiry

5 5. The applicant gave evidence over two hours on 7 ^th December 2007, and prior to this had engaged in some correspondence with and had meetings with members of the Tribunal. He had furnished documentary evidence and a written statement prior to formally being called to give evidence before the Tribunal in December 2007. The first involvement of the applicant in the process of the Tribunal arose as a result of a letter on 4 ^th May, 2006, from the Tribunal addressed to him in which it stated that it had been informed that Mr. Chawke had contributed to payments made to Mr. Ahern in December 1993, and which asked him to provide a comprehensive narrative setting out his involvement and all relevant details of the transaction including documentary evidence of these payments. Mr. Chawke made a written statement on 30 ^th May, 2006, describing events by which he says he was approached by certain friends to contribute to the fund for Mr. Ahern's legal expenses.

6 6. After the written statement was furnished by Mr. Chawke, the Tribunal wrote to him through his solicitors on 3 ^rd November, 2006, requesting information as to what if any properties Mr. Chawke had which might have benefited from the Urban Renewal Act 1986 or any statutory amendment thereto. This letter came in the context of the Tribunal's inquiry as to whether Mr. Chawke had benefited from being a member of the group who made the monies available to Mr. Ahern. Mr. Chawke through his accountant replied to the Tribunal saying he had not obtained any tax relief or other benefits through the Urban Renewal legislation.

7 7. There was correspondence in April/May 2007 expressing the Tribunal's concern over the unauthorised disclosure in certain newspapers of confidential information of the Tribunal and an inquiry was made as to whether Mr. Chawke was the source of this. The matter of confidential information went no further after Mr. Chawke denied he had disclosed any documentation to any person.

8 8. On 4 ^th May, 2007, the Tribunal wrote to the solicitors for the applicant indicating that it had come to understand that the payments to Mr. Ahern had been repaid together with interest. That letter asked for information with regard to the repayment and referred expressly to "the monies paid for the benefit of Mr. Bertie Ahern ". Mr. Chawke made a handwritten and signed statement to the Tribunal on 23 ^rd May, 2007, with regard to the repayment by Mr. Ahern of the monies advanced to him and that Mr. Chawke had directly endorsed the cheque to a named charity.

9 9. Mr. Chawke was subsequently ordered on 30 ^th May, 2007, to make discovery and this was done by formal affidavit of discovery on 2 ^nd July, 2007.

10 10. In early January 2008, a further issue with regard to the alleged disclosure of confidential information was raised in correspondence and Mr. Chawke again denied he had any involvement in the disclosure of any such documents to third parties.

11 11. Approximately a year after Mr. Chawke gave formal oral evidence to the Tribunal he received a letter, which I am advised is a standard form letter issued by the Tribunal, on 13 ^th October, 2008, indicating that the Tribunal anticipated that it would conclude its public hearings of evidence shortly and that it would then commence the preparation of the report to the Oireachtas. Mr. Chawke was invited to make submissions as he saw fit prior to the conclusion by the Tribunal of its determination and the preparation of a final report. The letter contained a statement that the absence of submissions would not be taken by the Tribunal to amount to an acceptance by Mr. Chawke of the evidence of others or of any submissions made by others touching upon his evidence.

12 12. On 15 ^th October, 2008, the solicitors acting for Mr. Chawke wrote to the Tribunal in response to its letter pointing out that Mr. Chawke did not see a necessity for submissions but did make the following comment:-

"However, if the Tribunal has any adverse comment to make regarding our client or his evidence we would asked to be advised of same prior to the finalisation of its report so that our client will have an opportunity of clarifying any point which may require clarification and of defending any adverse accusation which could reflect on our client's good name and character."

13 13. In response to this letter, on 20 ^th October, 2008, the Tribunal merely confirmed that the contents of same had been noted. I return to this thread of correspondence later.

The power to award costs

14 14. The Tribunal has power under s. 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979, as amended by s. 3 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997, to make awards of costs. The primary power is contained in s. 6 of the Act of 1979 which enables a Tribunal to order that the part of the costs of any person appearing before the Tribunal by counsel or solicitor shall be paid to the person by any other person named in the order. The costs order may be an order that a person appearing before the Tribunal be awarded some or all of his or her costs, or that such person should pay some or all of the costs of any other person so appearing. The amending legislation added in parenthesis the relevant matters to which the Tribunal must have regard in coming to its decision on costs. The full amended s. 6(1) reads as follows:

2 2 "(1) Where a tribunal or, if the tribunal consists of more than one member, the chairperson of the tribunal, is of opinion that, having regard to the findings of the tribunal and all other relevant matters (including the terms of the resolution passed by each House of the Oireachtas relating to the...