Lawlor -v- Planning Tribunal, [2008] IEHC 282 (2008)

Docket Number:2007 80 JR
Party Name:Lawlor, Planning Tribunal
Judge:Murphy J.





RESPONDENTSJudgment of Mr. Justice Roderick Murphy delivered the 31st day of July, 2008.

The first issue which arises in this judicial review is the standard of proof required before findings of fact are made by the Tribunal. The second issue is effective legal representation in terms of provision for costs in relation to the anticipated hearings before the Tribunal. The application by way of Judicial Review was limited at the leave stage as appears below.

1. Standard of proof

The submissions on behalf of the applicant made by Mr. McGonigal S.C. related to the issue of standard of proof and, rather helpfully, the Court was given comprehensive overview of the issue dealt with by many inquiries and tribunals, both in this jurisdiction and elsewhere. It is clear, and indeed accepted by the applicant, that Tribunals of Inquiry deal with the finding of facts rather than with the administration of justice. The Court is asked to consider and to take into account the period of time that the present Tribunal has taken. One could probably contrast the earlier fact finding inquiries as being restricted to technical evidence and to findings of causation in the physical sense with the present Tribunal investigating planning matters, possible interference with matters relating to planning decisions and so forth which necessarily involve the reputations of witnesses, perhaps more fundamentally than the earlier Tribunals did.

Counsel referred to the terms of reference of the Tribunal, which included, inter alia:-

"In the event that the Tribunal in the course of its inquiries is made aware of any acts associated with the planning process, which, may,

in its opinion amount to corruption or which involved attempts to influence by threats or deception or inducements or otherwise, to compromise the disinterested performance of public duties, it shall report on such acts and shall in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries."The then chairman of the Inquiry, Flood J., on 21st October, 1998, indicated that "corruption" was understood as, "As including, destroying, injuring or perverting the integrity or fidelity of a person in the discharge of his duties or the abuse of influence or power or duty by any person or to bribe or to induce another to act dishonestly or unfaithfully or an attempt to do the same, or circumstances of control, influence or involvement with such person to the extent that it gives rise to reasonable inference of unequal accessive or favouritism or to a set of circumstances detrimental to his duties."Counsel said that it was understood that the allegations which the applicant's spouse, the late Mr. Liam Lawlor was facing were of the most serious kind in the sense that they could lead to findings of criminal behaviour.

Where there is a reference to standard of proof, the vast majority of Tribunal reports refer to civil standards of proof. The issue is not one of proof as in civil litigation, but rather of fact finding. The references by Chairman of Tribunals are to degrees of certainty and probability when dealing with more serious matters. The exception to that was the Beef Tribunal in relation to which a standard of proof beyond reasonable doubt was adopted.

The report of the Tribunal of Inquiry into the Beef Processing Industry at paragraph 10 stated:-"Because of the seriousness of the allegations and because of thepotential damage to the reputations and good names of the persons against whom the allegations were made, and the risk of personal hurt and injustice to any person involved in the inquiries, the Tribunal was from the outset, concerned and indeed obliged to have regard to the principles of natural justice in the conduct of its inquiries and to ensure that fair procedures were adopted by it." The Supreme Court in Goodman v. Hamilton had referred to the discretion of the Tribunal in relation to what standard it might adopt. Hederman J. held that it might not have been necessary for the Tribunal to set up a standard beyond a reasonable doubt. It was a procedural requirement which was well within the competence of the Tribunal to lay down. In Haughey v. Moriarty Hamilton C.J. stated that first of all, a preliminary investigation was required of the evidence available. Secondly, the Tribunal had to determine of what it considered to be evidence relevant to the matters in which it was obliged to inquire. Thirdly, such evidence had to be served on persons likely to be affected thereby. The fourth stage was the public hearing of witnesses in regard to such evidence and the cross-examination of such witnesses by or on behalf of persons affected thereby. Fifthly, was the preparation of a report and the making of recommendations based on the facts established at such public hearing. Probably the In re Haughey rights to which reference has been made on behalf of the applicant, that is to say the right to make submissions with regard to the findings could be added.

The question of the Medical Council cases and particularly Georgopoulus and O'Laoire v. Medical Council, appears to have moved the matter forward somewhat in relation to the question of the standard of proof. O'Flaherty J. examined the law in relation to the standard of proof and was minded to maintain a distinction between the two standards of civil and criminal trials, but said to attempt to introduce the procedures of a criminal trial into essentially civil proceedings served only to create confusion, echoing what Barrington J. had said in Mooney v. An Post. O'Flaherty J. then said:-"The common law panorama at this time gives the impression that there is but one standard of proof in civil cases though of necessity it is a flexible one. This flexibility will ensure that the graver the allegations, the higher will be the degree of probability that is required to bring home the case against the person whose conduct is impugned."In Georgopoulus, where the applicant was a medical registrar who argued that the Medical Council should have applied a criminal standard of proof in the employment inquiry, Hamilton C.J. said it was in essence a purely civil proceeding and did not involve in any way allegations of a criminal nature. He continued:-"It is true that complaints against the plaintiff involve charges of a great seriousness and with serious implications for the plaintiff's reputation. This does not, however, require that the facts upon which the allegations are based should be established beyond all reasonable doubt. It can be dealt with on the balance of probabilities bearing in mind that the degree of probability required should always be proportionate to the nature and gravity of the issues to be investigated."In re H (minors) [1996], the House of Lords referred to the establishment of principles regarding the standard of proof as follows:-"Where the law sought to define the degree of probability appropriate for different types of proceedings. Proof beyond a reasonable doubt in whatever form of words expressed is one standard. Proof on a preponderance of probability is another lower standard having the inbuilt flexibility already mentioned. If the balance of probability standards were departed from and a third standard was substituted in some civil cases, it would be necessary to identify what the standard is and when it applies. Herein lies a difficulty. If the standard were to be higher than the balance of probability but lower than the criminal standard of proof beyond a reasonable doubt, what would it be? The only alternative which suggests itself is that the standard should be commensurate with the gravity of the allegation and the seriousness of the consequences."A formula to this effect has its attraction but I doubt whether in practice it would add much to the present test in civil cases and it would risk causing confusion and uncertainty. As present advised, I think it better to stick to the existing established law on this subject. In that case, the House of Lords was dealing with litigation and not with a Tribunal of Inquiry or any form of investigation.

In B. v. Chief Constable of Avon and Somerset [2002] 1 W.L.R. 340 Bingham L.J. at 353-354 stated that:-"In a serious case such as the present the difference between the two standards is, in truth, largely illusory. I have no doubt that in deciding whether the conditions in section 2 (1)(a) is fulfilled, a magistrates court should apply a civil standard of proof which will for all practical purposes be indistinguishable from the criminal standard."That related to proceedings for the obtaining of the sex offender order.

References to other jurisdictions have no real bearing other than by way of analogy with the position here. Neither the Tribunal of Inquiries Act, 1921, nor the amending legislation touch on issues in relation to standard of proof.

The issue of the Plaintiff seeking to deal with her late husband's good name is a matter of course that has been canvassed and arguments have been made that that is an entitlement which the applicant has in relation to the defence of her husband's reputation. There are two matters which the Court will refer to. First of all, that leave was not granted in relation to those matters. Secondly, the question of defamation, notwithstanding recommendations for change of the Law Reform Commission, is a matter which is already settled in law.

The Court has regard to the submissions made on behalf of the respondents in this case and, in particular, the reference to beyond a reasonable doubt being confined in most cases except in very very limited...

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