Lawlor (plaintiff) v Members of the Tribunal of Inquiry into certain planning matters and payments

 
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[2007] IEHC 139

THE HIGH COURT

DUBLIN

[No. 80 J.R./2007]
LAWLOR v PLANNING TRIBUNAL

BETWEEN

HAZEL LAWLOR
PLAINTIFF

AND

THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS
DEFENDANTS

AND

IRELAND AND THE ATTORNEY GENERAL
NOTICE PARTY

2007/80JR - O'Neill - High - 27/4/2007 - 2007 34 7015 2007 IEHC 139

ADAMS v DPP & ORS 2001 1 IR 47 2001 2 ILRM 417 2001 1 57

ADAM & IORDACHE v MIN FOR JUSTICE & ORS 2001 3 IR 53 2001 2 ILRM 452

VOLUNTARY PURCHASING GROUPS INC v INSURCO INTERNATIONAL LTD & AGRICHEM LTD 1995 2 ILRM 145 1995 5 1695

HILLIARD v PENFIELD ENTERPRISES LTD 1990 1 IR 138 1990 DULJ 138 1990 3 768

MURRAY & GIBSON v COMMISSION TO INQUIRE INTO CHILD ABUSE & ORS 2004 2 IR 222 2004 33 7522

TRIBUNALS OF ENQUIRY ACTS 1921 TO 2002

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS

GEORGOPOLOUS v BEAUMONT HOSPITAL BOARD 1998 3 IR 132 1994 1 ILRM 58 1994 ILT 177 1993 12 3656

MCBREARTY v MORRIS & AG UNREP PEART 13.5.2003 2003/39/9373

TRIBUNALS

Tribunal of inquiry

Judicial review - Application for stay on tribunal hearing - Respondent's application for order setting aside grant of leave - Locus standi - Estate of deceased witness granted representation - Whether right of representation retrospective - Whether applicant had locus standi - Whether reputation of deceased person capable of protection - Test to be applied - Balance of convenience - Whether fair issue to be tried - Whether applicant moved with sufficient promptness - Whether applicant could seek commitment as to costs of representation at tribunal - Adams v DPP [2001] 1 IR 47; Adams v Minister for Justice [2001] 3 IR 53; Voluntary Purchasing v Insurco Ltd [1995] 2 ILRM 145; Campus Oil v Minister for Industry (No 2) [1983] IR 88; Georgopulus v Beaumont Hospital [1998] 3 IR 132; McBrearty v Morris (Unrep, Peart J, 13/5/2003) applied; Hilliard v Penfield Enterprises Ltd [1990] IR 138; Murray v Commission to Inquire into Child Abuse & Ors [2004] 2 IR 222 distinguished - Application for stay on tribunal hearing and respondent's application to set aside leave refused (2007/80JR - O'Neill J - 27/4/2007) [2007] IEHC 139

Lawlor (Hazel) v Mahon

1

JUDGMENT delivered by Mr. Justice O'Neill on Friday, 27th April, 2007

2

There are two motions before the Court, one for the applicant seeking a stay on the Quarryvale II Module hearing due to commence on 30th April of this year, next Monday, the other on behalf of the respondent seeking an Order setting aside the leave granted to the applicant by Peart J on 29th January 2007 to seek certain reliefs by way of Judicial Review.

3

The background to this matter is well known. The applicant is the widow of the late Liam Lawlor, a former TD and member of Dublin County Council who died tragically in a road traffic accident abroad in October 2005.

4

The respondent pursuant to its Terms of Reference is in the course of investigating certain matters concerning the Quarryvale development.

5

The late Liam Lawlor was the subject of some of that investigation and was a witness in the public hearings prior to his death.

6

The module in question though one was broken into two parts: Quarryvale I and Quarryvale II. Apart from some additional cross-examination of one witness, necessitated by the disclosure of material consequent on court challenges brought in recent times, the public hearing in Quarryvale I has been completed.

7

The public hearing in Quarryvale II commenced in November 2005. An opening statement was made by Counsel for the Tribunal whereupon an application was made to this court by Owen O'Callaghan for leave to challenge the continuing public hearing of that module.

8

Leave was granted in that case and in due course that module was stayed pending the determination of those Judicial Review proceedings. These proceedings were heard in the High Court over 15 days in April 2006. Judgement was given in July 2006 refusing the reliefs sought.

9

An appeal was taken by Mr. O'Callaghan and that was heard in January 2007, and judgments were given in March 2007 affirming the judgment and Order of the High Court.

10

When the Quarryvale II module was opened in November 2005, an application was made on behalf of the applicant in these proceedings for limited representation. That application was expressed in the following terms as revealed in the transcript of the Tribunal. It is as follows:

"The first is on behalf of Mrs. Hazel Lawlor for limited representation. As you are ware, Mrs. Lawlor is a witness in this module of the Tribunal. She has asked for limited representation in that regard.

My second application is in regard to the estate of Mr. Liam Lawlor. The family have met and have decided that they wish to defend Mr. Lawlor's name notwithstanding that he is bereaved and they have asked that his estate would be afforded limited representation on occasions when issues that are pertinent to Mr. Lawlor, such as those outlined in the opening statement by Ms. Dillon today, could be addressed and that his position as is known to the family and is documented could be put to certain witnesses.

On that regard, the application that I make is that his estate would be granted limited representation, again to deal with issues that are relevant to Mr. Lawlor."

11

In addition Counsel for the Applicant applied for an Order "covering her costs" in the Tribunal in the following terms:

"The final matter I wish to bring to the Tribunal is the issue of costs. Mrs. Lawlor is now a widow and the main support of the family was obviously Mr. Lawlor. Indeed already her pension is being reduced and she is in a position of limited means.

Now, I understand the Tribunal's attitude to costs has been to make a decision towards the end. What I would say in an application for costs on behalf of Mrs. Lawlor and the estate is that the Tribunal would have an inherent jurisdiction to visit this issue. And in the circumstances where Mrs. Lawlor is of limited current means to support both herself and her family, insofar as there is anyone dependant, that it would be something that the Tribunal could consider in exceptional circumstances that we find ourselves in.

Mr. Lawlor by all accounts is a central figure in this module and modules to come, and that is borne out by Ms. Dillon's opening statement. Mrs. Lawlor has asked me to make the application to you in the limited circumstances she seeks representation, that the Tribunal would consider covering her costs from here."

12

On the costs issue the Tribunal refused the application as follows, and this is what was said by the Chairman:

"In relation to costs, I think you know probably as well as anyone that our hands are tied. We are not in a position to provide for costs in advance of the conclusion of the module and in the normal course prepared and published. Even in circumstances where an individual is unable to pay for his or her legal representation, that particular issue, I think you know, has been well flagged and argued in another Tribunal and to some degree in this Tribunal before, but certainly to a greater extent in another Tribunal. And there is no legislative provision which would allow us direct that Mrs. Lawlor or the estate of Mr. Lawlor should get their costs at this stage or could in any way be guaranteed their costs."

13

The Tribunal granted representation to the applicant in her own right as a witness. In relation to Mr. Lawlor, the Tribunal granted representation in the following terms:

"Now, in relation to the estate of Mr. Lawlor, we have no difficulty in making a grant in favour of the estate. Presumably there has been no representation."

14

And it goes on later to say:

"Now, I think on that basis we will make a grant on behalf of Mrs. Lawlor acting on behalf of the estate, but on an interim basis. Your solicitor will have to satisfy the Tribunal, preferably before the end of this term but certainly early in the New Year, that in fact Mrs. Lawlor has taken steps to have herself appointed as the legal personal representative of the estate of Mr. Lawlor."

15

Following on that by a letter of 1st December 2005 from the Tribunal to the applicant the following was said in respect of representation, and I quote from the letter as follows:

"The Tribunal has also granted legal representation to Mrs. Hazel Lawlor in her capacity as the intended personal representative of the estate of the late Liam Lawlor.

This representation has been granted notwithstanding that a grant of probate has not yet...

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