Flood v Lawlor (Planning Tribunal)

• Jurisdiction: Ireland
• Judge: MR. JUSTICE T.C. SMYTH
• Judgment Date: 24 October 2000
• Neutral Citation: [2000] IEHC 198
• Court: High Court
• Date: 24 October 2000

[2000] IEHC 198

THE HIGH COURT DUBLIN

553 SP/2000

FLOOD v. LAWLOR (PLANNING TRIBUNAL)

MR. JUSTICE FEARGUS FLOOD, THE SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS

Applicant

-v-

MR. LIAM LAWLOR

Respondent

Citations:

TRIBUNALS OF INQUIRY (EVIDENCE) (AMDT) ACT 1997 S4

LAWLOR V FLOOD UNREP KEARNS 2.7.1999 1999/15/4583

LAWLOR V FLOOD 1999 3 IR 107

RULES OF SUPERIOR COURTS SI 15/1986

RULES OF SUPERIOR COURTS (NO 2) (DISCOVERY) 1999 SI 233/1999

RSC O.31 r12

RSC O.31 r13

RSC APPENDIX C FORM NO 10

GLACKEN V TRUSTEE SAVINGS BANK 1993 3 IR 55

HAUGHEY V MORIARTY 1999 3 IR 1

DUNNES STORES (IRL) CO V MALONEY 1999 3 IR 542 1999 1 ILRM 119

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963

TRIBUNALS OF INQUIRY (EVIDENCE) ACTS 1921 – 1998

KEEGAN V STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 632

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

REDMOND V FLOOD 1999 1 ILRM 241

WOODWARD V HUTCHINS 1977 1 WLR 760

BAILEY V FLOOD UNREP SUPREME 14.4.2000

R V LORD SAVILLE OF NEWDIGATE EX PARTE A 1999 4 AER 860

Synopsis:

Tribunals of Inquiry

Tribunals of inquiry; discovery; plaintiff seeking reliefs pursuant to s.4, Tribunals of Inquiry (Evidence) (Amendment) Act, 1997; defendant had been ordered by High Court to make discovery to the Tribunal of certain documents; Tribunal subsequently received a "statement" of discovery from the defendant; by letter the Tribunal indicated deficiencies in the documentation already furnished by the defendant and detailed matters to which it required the defendant to attend; defendant failed to comply therewith; plaintiff then made order for discovery; defendant failed to comply therewith; plaintiff issued two summonses pursuant to Tribunals of Inquiry (Evidence) Act 1921–1998 requiring defendant to attend before Tribunal to furnish certain documents and to give evidence thereto; whether order for discovery was within the jurisdiction and discretion of the sole member; whether order for discovery was sufficiently clear on its face; whether order for discovery both as to its scope and time was too wide; whether a reasonable time had been given for compliance with said order; whether plaintiff had jurisdiction to issue the summonses; whether it was unreasonable to issue same.

Held: Reliefs sought by plaintiff granted.

Flood v. Lawlor - High Court: Smyth J. - 24/10/2000

The Tribunal had ordered the respondent to attend before it in public session to give evidence in relation to certain documents it had ordered him to produce. The respondent claimed that since the Tribunal was still in an investigative mode and since he was unaware of the allegations against him he should not be compelled to attend a public sitting. The applicant sought to have the orders upheld. Smyth J held that the decisions of the Tribunal chairman were reasonable and were made within jurisdiction. The orders of the applicant would be affirmed.

1 MR. JUSTICE T.C. SMYTH ON TUESDAY, 24TH OCTOBER 2000

2 I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

3 Dorothy Woods

4 MR. JUSTICE SMYTH DELIVERED JUDGMENT, AS FOLLOWS, ON TUESDAY 24TH OCTOBER 2000.

5 Mr. JUSTICE SMYTH: In this matter, the Plaintiff seeks the following relief pursuant to Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997: Paragraph 6 of the Endorsement of Claim is to the following effect:

"The Plaintiff seeks the following relief pursuant to Section 4 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1997:-"

(i) An Order compelling the Defendant herein to comply with the Order of the Plaintiff made on the 8th June 2000, whereby the Defendant was ordered to make Discovery on Oath of and produce to the Plaintiff or before 23rd June 2000 the documents and records referred to in paragraphs (a), (b) and (c) of the said Order.

(ii) If necessary, an Order specifying a new date by which the Defendant must make Discovery on Oath of and produce to the Plaintiff the documents and records referred to at paragraphs (a), (b) and (c) of the said Order of 8th June 2000.

(iii) An Order compelling the Defendant to attend before the Plaintiff (as Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments at the Printworks Building, Lower Castle Yard, Dublin Castle, Dublin 2) on such date and at such time as this Honourable Court may direct and commanding the Defendant to have with him and there and then produce and hand over to the Tribunal the documents and records mentioned at paragraphs (a), (b) and (c) of the Order of the Tribunal dated 8th June 2000 served upon the Defendant.

(iv) An Order compelling the Defendant to attend before the Sole Member of the said Tribunal at the aforesaid place and on a date and at a time to be fixed by this Honourable Court and then give evidence to the Tribunal in relation to the documents and records mentioned in paragraphs (a), (b) and (c) of the Order of the Tribunal dated 8th June 2000." And certain other reliefs.

Background:

6 In Judicial Review proceedings between the parties hereto, the Defendant herein being the Applicant therein (hereinafter referred to as Mr. Lawlor) and the Plaintiff herein being the Respondent therein (hereinafter referred to as the Sole Member), Kearns J. by judgment delivered on 2nd July 1999 determined that an Order dated 26th April 1999 (made by the Sole Member) directing Mr. Lawlor to make discovery and produce to a solicitor acting for the Tribunal certain documents, should stand good. An appeal was taken to the Supreme Court by the Sole Member on certain grounds but neither party, and more particularly Mr. Lawlor, did not appeal against the refusal of Kearns J. to strike down the Order directing Discovery referred to by Kearns J. at page 49 of his judgment as "the second Order" of the Sole Member, and which in the judgment of Hamilton C.J. at page 11 of his judgement handed down on 8th October 1999 refers to thus:

"The learned Trial Judge refused the reliefs sought in respect of the third Order and there is no appeal from such refusal."

7 As is clear from the judgment of the Chief Justice at pages 4 and 5, what he refers to as the third Order is what Kearns J. refers to as the second Order.

8 Notwithstanding the unappealed judgement, insofar as Mr. Lawlor was concerned, having been delivered on 2nd July 1999, it was apparently some three months before the Sole Member received a "statement" of discovery from Mr. Lawlor on 7th October 1999 (a fact recorded in a letter dated 19th May 2000 addressed to Mr. Lawlor's solicitor from the solicitor to the Tribunal.) There is a clear distinction drawn by Kearns J. in his judgement between an Affidavit as to facts (at page 71 of his judgement) and an Affidavit of Discovery. The Order of Kearns J. has not been put before the Court, but in general it can be safely stated that when the Court is moved directly or indirectly on appeal from the Master (and by analogy on a reference from a Tribunal) to confirm, compel or direct a person to make Discovery, it does so within the terms of the Rules of the Superior Courts (S.I. No.15 of 1986) as amended by substitution or insertion by S.I. No. 223 of 1999 and in particular O. 31 R.12 and 13 and having Form No. 10 Appendix C of the Rules in mind.

9 In or about the 19th May 2000, the Tribunal's solicitor had reason to write two letters dealing with:

10 (1) The Tribunal's request for a voluntary statement.

11 (2) Accounts in banks and other financial institutions.

12 Both letters are lengthy and set out in considerable detail the matters of concern to the Tribunal. The letters make it quite clear what it is that is required of Mr. Lawlor. Equally, it is clear that the Tribunal would wish to receive the information in respect of (1) above on a voluntary basis and seeks a response by 2nd June 2000. In regard to the topic "Accounts in banks and other financial institutions", the Tribunal indicates deficiencies in the documentation already furnished by Mr. Lawlor and notes specifically:

"Despite having been repeatedly requested to do so, your client refused to provide a sworn Affidavit of Discovery in the conventional form to the Tribunal. In documents which have been discovered to the Tribunal, your client has stated that he availed of a tax amnesty. In view of the matters into which the Tribunal is enquiring involving your client (which are set out in my other letter to you of even date with the heading: "Liam Lawlor T.D. - Tribunal Request for a Voluntary Statement."), it appears to the Sole Member of the Tribunal that it is appropriate that he be informed of the source or sources of the funds in respect of which such amnesty was claimed and the identity of the account or accounts in which they were held."

13 I am quite satisfied that Mr. Lawlor and his solicitors were well aware of what was required, for it appears from the transcript of the Tribunal hearing on 10th October 2000 at page 21, lines 16 to 23, from Exhibit G of the Affidavit of Ms. Howard sworn on 16th October 2000 that Mr. Lawlor's solicitors wrote on 20th September 1999 stating that it would not be possible to have "an Affidavit of Discovery" prior to 1st October and asking for an extension to 6th October 1999.

14 The letter of the 19th May 2000 then details some six matters that the Tribunal wish Mr. Lawlor to attend to. To facilitate Mr. Lawlor in progressing the matter, the Tribunal enclosed appropriate letters of authority. It then proceeded:

"In the event that Mr. Lawlor is not in a position to provide such information and to provide such authority to the Tribunal, the Sole Member has asked me to inform you that he will on 29th day of May 2000 consider whether or not it is necessary for the purposes of his functions to make the following orders:"

15 There then follow four...