Fitzwilton & Ors v Judge Alan Mahon & Ors, [2006] IEHC 48 (2006)

Docket Number:2005 1018JR
Judge:Laffoy J. / Feeney J.



2005 No. 1018 JR











Judgment of Miss Justice Laffoy delivered 16th February, 2006.

The substantive judicial review proceedings

The issues on this judicial review are primarily delimited by the order made on 21st September, 2005 by White J. In that order leave was given to the applicants to apply by way of application for judicial review for a declaration that the respondents have failed to comply with paragraph J(2) of the Tribunal's Amended Terms of Reference in relation to the holding of a public hearing in relation to the Fitzwilton £30,000 payment and that, accordingly, any such public hearing is ultra vires the respondents and in breach of the applicants' constitutional rights. The applicants were also given leave to apply for ancillary relief in the form of orders of Certiorari and Prohibition. Such leave was granted on the grounds set forth at paragraph E of the applicants' Statement grounding their application for judicial review.

The factual background to the proceedings is that the respondents are the members of the Tribunal of Inquiry into Certain Planning Matters and Payments (the Tribunal), which was established in 1997. Amongst the matters which the Tribunal has investigated since its establishment is what is described in the applicants' Statement as "a political contribution of IR£30,000 made to Fianna Fáil by the Fitzwilton Group in June, 1989 ('the Fitzwilton £30,000 payment')". The Tribunal first made inquiries in relation to the Fitzwilton £30,000 payment in April, 1998 and, as the applicant put it, has continued its inquiries sporadically since then. The applicants assert that they have at all times co-operated with the Tribunal's inquiries. By instrument dated 3rd December, 2004, executed on foot of a resolution passed by both Houses of the Oireachtas, the Terms of Reference of the Tribunal were amended by the addition of paragraph J. Paragraph J(2) provides:"The Tribunal shall, subject to the exercise of its discretion pursuant to paragraph J(6) hereunder, by 1 May, 2005 or such earlier date as the Tribunal shall decide, consider and decide upon such additional matters (being matters in addition to those set forth at J(1)(a) to (g) above and in respect of which the Tribunal has conducted or is in the course of conducting a preliminary investigation as of the date of the decision) that shall be proceeding to a public hearing and shall record that decision in writing and shall duly notify all parties affected by that decision at such time or times as the Tribunal considers appropriate." On 28th April, 2005 the respondents executed a document entitled "List of additional matters pursuant to paragraph J2 of the Amended Terms of Reference passed by Resolution of the Houses of the Oireachtas, on 17th November, 2004". The text of the document which preceded the list proper set out certain decisions which the Tribunal might take in relation to a matter on the list. It further stated that decisions as to whether or not any matter listed should continue to undergo private inquiry, or should proceed to public inquiry, would continue to be subject to review by the Tribunal in accordance with its Terms of Reference (as amended). The list contained 47 matters including a matter designated "Fitzwilton/MMDS/payment to Ray Burke by Rennicks".

By letter dated 4th July, 2005, the Tribunal responded to a submission which had been made by the applicants on 30th September, 2003, which had sought a private hearing of the applicants' submissions, stating that the Tribunal had shortly thereafter considered the request and decided that it would be inappropriate. The letter of 4th July, 2005 went on to state that the Tribunal was then currently reviewing all information and documentation in its possession relating to the Fitzwilton £30,000 payment. Notification to interested parties as to how the Tribunal intended to proceed would be effected as soon as it was deemed appropriate by the Tribunal. By further letter dated 15th July, 2005, the Tribunal informed the applicants that public hearings in the Fitzwilton £30,000 payment module would commence on 21st September, 2005 and were expected to continue for a period of three to four weeks thereafter. On 13th September, 2005, the Tribunal furnished to the applicants' solicitors a copy of the decision dated 28th April, 2005 from which all of the 47 matters listed on the J2 list other than the Fitzwilton £30,000 payment were redacted, stating that all of the contents which had been redacted comprised a list of decisions taken by the Tribunal to go to public hearing in matters other than the Fitzwilton £30,000 payment.

Insofar as they are relevant for present purposes, the grounds on which the applicants were given leave to seek judicial review are the following:

· That the J(2) List does not record in writing a decision by the Tribunal that the Fitzwilton £30,000 payment "shall be proceeding to a public hearing" and therefore does not comply with the mandatory requirements of paragraph J(2) of the Tribunal's Amended Terms of Reference (E(7)).

· That the Tribunal failed to -

§ consider, adequately or at all, whether the Fitzwilton £30,000 payment "shall be proceeding" to a public hearing in the period between 3rd December, 2004 and 1st May, 2005, as required by paragraph J(2) and

§ make a decision that it should within that period as required by paragraph J(2) (E(8)).

· That the J(2) List unlawfully purports to defer a decision as to whether or not to proceed to a public hearing in respect of the many matters apparently listed therein and/or to reserve to the Tribunal an ongoing discretion to make such decision in the future which is not contemplated or permitted by paragraph J(2), so that the Tribunal failed to exercise the power and/or discretion conferred by paragraph J(2) (E(9)).

The respondents' response to the foregoing grounds in their notice of opposition is as follows:

· In response to E(7) they refer to and explain the heading of the document of 28th April, 2005 and deny that the written record of the J(2) List does not record in writing a decision by the Tribunal that the Fitzwilton £30,000 payment "shall be proceeding to a public hearing" and does not comply with the requirements of paragraph J(2).

· In response to E(8) they deny that they failed to consider whether the Fitzwilton £30,000 payment "shall be proceeding" to a public hearing within the period between 3rd December, 2004 and 1st May, 2005 and they further deny that they failed to make that decision within the relevant period.

· In response to E(9) the respondents traverse the assertions made in that ground.

The respondents' statement of opposition is verified by an affidavit sworn on 29th September, 2005 by Dónall King, the solicitor to the Tribunal. In paragraph 18 Mr. King avers as to what he has been told by the Members of the Tribunal as to the creation of the J(2) List. The work of the Tribunal that was outstanding as of November, 2004 amounted to approximately 160 matters. In sub-paragraphs (e) to (g) Mr. King avers as to how the reduction to the 47 matters itemised in the J(2) List came about in the following terms:"(e) The members of the legal team provided the Members with relevant details relating to outstanding work within the period November, 2004 to April, 2005, so as to enable the Members fully and comprehensively consider a variety of factors relating to each matter, including, for example, (and only by way of example), the subject matter under inquiry, the extent of the private inquiry then underway, its likely length at public hearing, the availability of witnesses, its probative value, amongst other factors.

(f) Between November, 2004 and April, 2005, the Members received from their legal team reports and relevant information and documentation on the outstanding work. As these were received, the Members considered them and conferred among themselves in relation thereto and from time to time decided on matters which they considered should proceed to public hearing.

(g) At all times the Members were aware and conscious of the fact that their decision as to the additional matters for public hearing was required to be made on or before the first day of May, 2005. As that day approached they were compiling what was subsequently known as the 'J2 list'. The J2 list was typed on 28th April, 2005 and was then signed by each Member on this date. Prior to each of the matters being entered into the list, the Tribunal Members had considered each matter at various times between November, 2004 and April, 2005. As the Tribunal Members considered each matter and decided whether or not that matter should go to public hearing this review and decision-making process of necessity took a number of months given the number of outstanding matters. The 'Fitzwilton £30,000 payment' was one such matter that they decided in the course of this review should proceed to a public hearing. This 'J2 list' represents the record in writing of the decision in each matter, and having regard to the wording and intent of paragraph J2 of the Amended Terms of Reference, it does not have any other purpose." Mr. King also addresses an averment contained in the applicants' grounding affidavit to the effect that, in the Tribunal's letter of 4th July, 2005, "the Solicitor to the Tribunal also advised (or so the applicants understood that letter at the time) that the respondents were in the process of formulating their decision on whether or not to proceed to conduct public hearings relating to the £30,000 payment in question", in paragraph 19 of his affidavit, denying the applicants' assertion and stating that the fact of the matter is that...

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