Finnegan v Flood Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 25 July 2001
• Neutral Citation: [2001] IEHC 113
• Date: 25 July 2001
• Court: High Court
• Docket Number: [2001 No. 453 J.R.]

[2001] IEHC 113

THE HIGH COURT

No. 453JR/2001

FINNEGAN v. FLOOD (PLANNING TRIBUNAL)

JUDICIAL REVIEW

BETWEEN

JOHN FINNEGAN

APPLICANT

AND

MR JUSTICE FERGUS FLOOD THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENT

Citations:

HAUGHEY, RE 1971 IR 217

BAILEY V FLOOD UNREP SUPREME 14.4.2000

LAWLOR V FLOOD 1999 3 IR 110

CONSTITUTION ART 40.3.2

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

KEEGAN V STARDUST TRIBUNAL 1986 IR 632 1987 ILRM 202

Synopsis

TRIBUNALS

Tribunal of inquiry

Constitutional law - Fair procedures - Whether failure by tribunal to vindicate applicant's reputation - Whether tribunal obliged to accede to applicant's request for preliminary examination - Whether constitutional rights infringed - Bunreacht na hÉireann, 1937 article 40.3.2° (2001/453JR - Kearns J - 25/7/01)

Finnegan v Flood Tribunal - [2002] 3 IR 47

The applicant sought relief by way of judicial review in respect of certain rulings made by the Chairman of the Flood Tribunal. The applicant had sought to have his affairs examined in a preliminary fashion by the tribunal which was refused. In addition the applicant complained that the tribunal had failed to protect his reputation. Kearns J held that there had been no want of fair procedures in the approach adopted by the tribunal. There was no reason to quash the decision of the Chairman to refuse to hold a preliminary inquiry.

1 Mr. Justice Kearns delivered the 25th day of July, 2001.

2 In these proceedings the Applicant seeks relief by way of Judicial Review in respect of certain rulings made in the proceedings of the Tribunal of Inquiry into Certain Planning Matters and Payments (hereinafter referred to as the "Flood Tribunal"), appointed by instrument of the Minister for the Environment and Local Government dated 4th November, 1997 as amended by instrument dated 15th July, 1998.

3 The Amended Terms of Reference of the Flood Tribunal provide, inter alia, that the Tribunal shall inquire urgently into and report to the Clerk of the Dail and make findings and recommendation as it sees fit in relation to the following definite matters of urgent public importance:-

"E1. Whether any substantial payments were made or benefits provided, directly or indirectly to Mr. Raphael Burke which may, in the opinion of the sole member of the Tribunal, amount to corruption or involve attempts to influence or compromise the disinterested performance of public duties or were made or provided in circumstances which may give rise to a reasonable inference that the motive for making or receiving such payments was improperly connected with any public office or position held by Mr. Raphael Burke, whether as Minister, Minister of State, or elected representative. E2. Whether, in return for or in connection with such payments and benefits, Mr. Raphael Burke did any act or made any decision while holding any such public office or position which was intended to confer any benefit on any person or entity making a payment or providing a benefit referred to in paragraph 1 above, or any other person or entity, or procured or directed any other person to do such an act or make such a decision."

4 Because it is a point which was in part relied upon in the course of submissions made on behalf of the Applicant, it is perhaps pertinent to refer also to the Amended Terms of Reference insofar as they indicate the manner in which the Tribunal has been requested to conduct its inquires. They include provisions -

5 i "(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 in paragraphs E1 and E2 above to warrant proceeding to a full public inquiry in relation to such matters

6 (ii) To inquire fully into all matters referred to in paragraphs E1 and E2 in relation to which such evidence may be found to exist

7 (iii) In relation to any matters where the Tribunal finds that there is insufficient evidence to warrant proceeding to a full public inquiry, to report that fact to the Clerk of the Dail..."

8 In the course of inquiry into the affairs of Mr. Tom Brennan and Mr. Joe McGowan (the Brennan and McGowan Module) of the Tribunal's inquiry, it emerged that a company controlled by Mr. Raphael Burke, Caviar Limited, was paid two payments, the first on the 21st November, 1984 amounting to £60,000.00 and the second in April 1985 amounting to £15,000.00 from a company called Canio Limited which is registered in Jersey. This is a company in which the Applicant has a one third interest, each of the other thirds being owned by Mr. Tom Brennan and Mr. Joe McGowan via Jersey based companies, Kalabraki Limited and Gasche Limited. Mr. Finnegan's company was known as Foxtown Investments Limited and was Guernsey based. It is not in dispute that monies generated by a property transaction in Sandyford by means of a loan from Lombard & Ulster Bank were drawn down in favour of Canio, whereof £60,000.00 was transferred from Canio to Mr. Burke's company two days later, the remaining balance being divided between the trust companies representing Messrs. Brennan and McGowan and the Applicant. In April 1985 a further sum of £15,000.00 was transferred to the account of Caviar Limited and it has been established that this sum was similarly a payment made by Canio Limited.

9 Equally, it is not in dispute that of the said sum £60,000.00, £25,000.00 was paid by or on behalf of each of Messrs. Brennan and McGowan, and a further sum of £10,000 from Mr. Finnegan's Foxtown Investments, was paid over at the same time.

10 I should stress at the outset that the Applicant contends that the payment to Mr. Burke was made without his knowledge or authorisation and that at all material times it had been his understanding that the said sum of £10,000 was to be placed in a fund to which Messrs. Brennan and McGowan would contribute equivalent sums for the purpose of meeting architectural and other expenses and outlays likely to arise in the course of property development.

11 The Tribunal in the course of its hearings had originally been informed by Mr. McGowan in sworn testimony that monies paid to Mr. Burke were the proceeds of fund-raising events and activities hosted by him for Fianna Fail/Ray Burke. This evidence was supported by Mr. Brennan. Following an investigation by the Respondent, this version of events was retracted. Mr. Burke also retracted previous evidence given by him in relation to the £15,000. He had originally provided in evidence a detailed account of how this sum had been a re-lodgement of a previous withdrawal from an account of his. He accepted thereafter, both in correspondence and in evidence, that these monies originated from the same company that had paid the £60,000. Messrs. Brennan and McGowan also acknowledged the inaccuracy of evidence tendered by them to the Tribunal.

12 The Tribunal had come by the information in relation to Canio through documentation supplied by Messrs. Bedell Cristin, a Jersey based firm of solicitors. Following an analysis of this documentation, it became apparent that the land transaction giving rise to the particular payment was not an isolated occurrence, but rather part of a series of land transactions involving the same persons which had a number of similar features. Mr. Thomas Brennan, Mr. Joseph McGowan and Mr. John Finnegan through various corporate structures were involved in a series of transactions involving lands in Dublin at Monkstown, Donnybrook, Newtown Park Avenue, Mount Anville, Tritonville Avenue, 6/7 St. Stephen's Green and Sandyford. The essential common features of these transactions were:-

13 (a) All of the transaction involved an Irish Brennan and McGowan company and at least one off shore company jointly owned by Mr. Thomas Brennan, Mr. Joseph McGowan and Mr. John Finnegan

14 (b) Messrs. Brennan and McGowan either owned or held a substantial beneficial ownership in the Irish companies

15 (c) Messrs. Brennan and McGowan and Finnegan were equal one third beneficial owners of the Jersey companies

16 (d) Substantial sums of money, usually borrowed, were sent to Jersey and immediately distributed to the three beneficial owners after certain disbursements were made.

17 The Respondent decided in examining the context in which the Canio payments were made to Mr. Burke and in order to inquire into the reasons for such payments and into whether or not further payments were made to Mr. Burke that the Tribunal would inquire in the course of the evidence into the corporate infrastructure of which Canio was a part, the underlying transactions for which it was formed and also other similar land transactions in which the partners in Canio were involved with similar offshore infrastructures which it appeared had common features and which appeared to be interconnected.

18 One such transaction concerned lands at Monkstown the property of the Sacred Heart nuns. In 1976, it appears that the Applicant acting for the nuns had approached Messrs. Brennan and McGowan with a view to the possible purchase by Messrs. Brennan McGowan of the said lands. In August 1976, the leasehold interest in the lands was bought in trust for the sum of £210,000 for Green Isle Holding Trust Limited in which Messrs. Brennan and McGowan, but not Mr. Finnegan, were shareholders. The outstanding freehold title remained vested in the de Vesci estate. In June 1977, the Sacred Heart nuns, for some unexplained reason, were again involved when they entered into a contract with the de Vesci estate and paid £10,000 to acquire the freehold. Thereafter the freehold interest was assigned in July, 1977 for £10,500 to a Jersey company, Bouganville Investments, the beneficial owners of which were Messrs. Brennan, McGowan and...