Lawlor v Planning Tribunal

JurisdictionIreland
CourtSupreme Court
JudgeMr. Justice John L. Murray
Judgment Date01 July 2009
Neutral Citation[2009] IESC 50
Docket Number[S.C. No.
Date01 July 2009

[2009] IESC 50

THE SUPREME COURT

Murray CJ.

Denham J.

Geoghegan J.

Fennelly J.

Kearns J.

[No. 376 of S.C./2008]
Lawlor v Members of The Tribunal of Inquiry into Certain Planning Matters and Payments

BETWEEN

HAZEL LAWLOR
APPLICANT/APPELLANT

AND

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

MAGUIRE v ARDAGH 2002 1 IR 385

LAWLOR v PLANNING TRIBUNAL UNREP O'NEILL 27.4.2007 2007/34/7015 2007 IEHC 139

REPORT OF THE ROYAL COMMISSION IN TO THE BUILDING & CONSTRUCTION INDUSTRY 2003 VOL 2 CHAP 5 PAR 9

REPORT OF THE ROYAL COMMISSION IN TO THE BUILDING & CONSTRUCTION INDUSTRY 2003 VOL 2 CHAP 5 PAR 10

BANCO AMBROSIANO SPA & ORD v ANSBACHER & ORS 1987 ILRM 669

GEORGOPOULUS v BEAUMONT HOSPITAL BOEAR 1998 3 IR 132

TRIBUNAL OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S5

LAWLOR v FLOOD 1999 3 IR 107

GOODMAN v HAMILTON 1992 2 IR 542

HAUGHEY, RE 1971 IR 217

LANGBEINS, ORIGINS OF ADVERSARY CRIMINAL TRIAL OXFORD UNIVERSITY

TRIBUNAL OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S6

TRIBUNAL OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S3

TRIBUNAL OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S6(1)

TRIBUNAL OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S3(1)

TRIBUNAL OF ENQUIRY (EVIDENCE) (AMDT) ACT 1979 S2

MCBREARTY v MORRIS UNREP PEART 13.5.2003 2003/39/9373

HEALY, STATE v DONOGHUE 1976 IR 325

CORCORAN v MIN FOR SOCIAL WELFARE 1991 2 IR 175

K SECURITY LTD & KAVANAGH v IRELAND & AG UNREP GANNON 15.7.1977 1977/5/886

CONDON v CIE UNREP BARRINGTON 16.11.84 1985/1/52

STEEL & MORRIS v UK ECHR UNREP 15.2.2005

TRIBUNALS

Tribunal of inquiry

Standard of proof - Proof beyond all reasonable doubt - Balance of Probabilities - Allegations against deceased person - Legal representation - Power of Tribunal to order costs - Provisions for costs in advance of finding by the tribunal - Goodman International v Mr Justice Hamilton [1992] 2 IR 542 and Goodman v Minister for Finance [1999] 3 IR 356 applied; In re Haughey [1971] IR 217 considered - Tribunals of Inquiry (Evidence) Act 1979 (No 3), ss 4 and 6 - Tribunal of Inquiry (Evidence) (Amendment) Act 1997 (No 42), s 3 - Tribunal of Inquiry (Evidence) (Amendment) Act 2004 (No 13), s 2 - Applicant's appeal dismissed (376/2008 - SC - 1/7/2009) [2009] IESC 50

Lawlor v Planning Tribunal

1

JUDGMENT of the Court delivered by the Chief Justice, the Hon. Mr. Justice John L. Murray on the 1st day of July, 2009

2

Judgment of the court delivered by Murray CJ.

3

This is an appeal brought from the judgment and order of the High Court (Murphy J.) delivered on 31 st July, 2008 whereby the plaintiff was denied certain reliefs which she had sought in relation to the procedures adopted by the respondents. The plaintiff had sought a declaration that the respondents could not make findings of serious misconduct against her late husband, Mr. Liam Lawlor, unless supported by evidence establishing them beyond any reasonable doubt. She had also sought an respondents to make all necessary financial arrangements to enable her to engage effective legal representation in the course of proceedings before the respondents.

4

The respondents are the members of the Tribunal of Inquiry into Certain Planning Matters and Payments. As is now well known the Tribunal was appointed by instrument of the Minister for the Environment & Local Government dated 4 th November, 1997, as amended by further instruments dated 15 th July, 1998, 24 th October, 2002, 7 th July, 2003, and 3 rd December, 2004. These instruments were made in pursuance of resolutions passed by Dail Eireann on 7 th October, 1997 and by Seanad Eireann on 8 th October, 1997, and by further resolutions passed by Dail Eireann on 1 st July, 1998 and by Seanad Eireann on 2 nd July, 1998, by Dail and Seanad Eireann on 28 th March, 2002, by Dail Eireann on 3 rd July, 2003 and by Seanad Eireann on 4 th July, 2003 and by Dail and Seanad Eireann on 17 th November, 2004.

5

The Hon. Mr. Justice Feargus Flood was appointed sole member of the Tribunal on 4 th November, 1997. On 24 th October, 2004 the composition of the Tribunal was changed. Mr. Justice Flood was appointed chairperson and two judges of the Circuit Court, His Honour Judge Alan Mahon and Her Honour Judge Mary Faherty were appointed as ordinary members of the Tribunal. In addition, Judge Keyes was appointed a reserve member of the Tribunal. Mr. Justice Flood resigned on 27 th June, 2003 and Judge Mahon replaced him as chairperson on 7 th July, 2003. Judge Keyes was appointed as a member of the Tribunal on the same date.

6

The terms of reference of the Tribunal require it:-

"(a) To enquire urgently into and report to the Clerk of the Dail and make such findings and recommendations as it sees fit, in relation to the following definite matters of urgent public importance."

7

The terms of reference material to the present application are set out at paragraph A(5) of the resolutions passed on 7 th October, 1997 and amended by resolutions passed by Dail Eireann on 1 st July, 1998 and Seanad Eireann on 2 nd July, 1998 and paragraph J(1) of the resolutions passed on 17 th November, 2004 and are in the following terms:-

"A(5) 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 involve attempts to influence by threats or deception or inducement or otherwise to compromise the disinterested performance of public duties, it shall report on such acts and should in particular make recommendations as to the effectiveness and improvement of existing legislation governing corruption in the light of its inquiries."

"J(1) The Tribunal shall, subject to the exercise of its discretion pursuant to J(6) hereunder, proceed as it sees fit to conclude its inquiries into the matters specified below (and identified in the Fourth Interim Report of this Tribunal) and to set out its findings on each of these matters in an interim report or reports or in a final report:-"

(a) The Carrickmines I Module.

(b) The Fox & Mahony Module.

(c) The St. Gerard's Bray Module.

(d) The Carrickmines II Module and related issues.

(e) The Arlington/Quarryvale I Module.

(f) The Quarryvale II Module.

(g) Those modules that are interlinked with the modules set out at paragraphs (a) to (f), and that are referred to in paragraph 3.04 of the Fourth Interim Report of the Tribunal."

8

Since its establishment on 4 th November, 1997, the Tribunal has published four interim reports, two of which, the second interim report (September, 2002) and the third interim report (September, 2002), have dealt with allegations of corruption in the planning process. The second interim report was concerned with allegations against Mr. Raphael Burke, a former Minister, T.D. and member of Dublin County Council. In this report the Tribunal made findings on the balance of probabilities that Mr. Burke received corrupt payments. The third interim report was concerned with allegations against Mr. George Redmond, former Assistant City & County Manager for Dublin. In this report the Tribunal made findings of fact, based on the balance of probabilities standard, that Mr. Redmond had received corrupt payments.

9

Mr. Liam Lawlor first became involved with the Tribunal in 1998. He was involved in the following modules:-

10

· Carrickmines I

11

· Carrickmines II and related issues

12

· Arlington/Quarryvale I

13

· Quarryvale II

14

Mr. Lawlor's involvement in the Carrickmines I module stemmed from allegations made by Mr. Frank Dunlop that Mr. Lawlor assisted in the rezoning of land at Carrickmines Great, known as the Paisley Park/Jackson Way Lands and adjoining nearby lands in Carrickmines Valley. Mr. Lawlor's involvement in the Carrickmines II module stems from allegations made by Mr. Frank Dunlop that a Mr. Jim Kennedy told him that Mr. Lawlor had a share in the ownership of Jackson Way. Mr. Lawlor's involvement with the Quarryvale I and II modules stems from allegations made by Mr. Frank Dunlop and Mr. Tom Gilmartin that Mr. Lawlor was a key strategist in the Arlington/Quarryvale projects and that he received significant payments from Mr. Dunlop, Mr. Gilmartin and others allegedly connected with the projects.

15

No findings have been made against Mr. Lawlor by the Tribunal to date. The applicant is the widow of the late Mr. Liam Lawlor who died tragically in a road traffic accident in Russia on 22 nd October, 2005. Mr. Lawlor was a former member of Dail Eireann and Dublin County Council. As already noted, his involvement with the Tribunal commenced in 1998 and during the course of the Tribunal's proceedings a number of grave allegations of criminal nature have been levelled against him. Following his death, the applicant was granted limited legal representation by the Chairman of the Tribunal on 29 th November, 2005. At the time of the High Court proceedings herein, the applicant was a witness before the respondents in relation to the Quarryvale module.

16

From the brief historical summary of the proceedings outlined above, it is clear that the Tribunal in its proceedings to date has adopted the civil standard of proof, that is to say, the balance of probability test, in making findings of fact in relation to allegations of corruption in its two interim reports to which reference has already been made.

17

In delivering judgment in the High Court herein, Murphy J. concluded as follows in relation to the applicant's case that the standard of proof should be proof beyond reasonable doubt:-

"It does seem to me having regard to the submissions made and the case law which the Court has examined that there is no necessary standard of proof laid down in relation to Tribunals...

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6 cases
  • Purcell v Central Bank of Ireland
    • Ireland
    • High Court
    • 29 July 2016
    ...no obligation to fund the applicant's costs (see Lawlor v. Members of the Tribunal of Inquiry into Certain Planning Matters & Payments [2009] IESC 50). Secondly, the defendants argued that it is premature to attack the statute on the basis that the scheme contains a provision whereby the a......
  • Richardson v Judge Alan Mahon and Others
    • Ireland
    • High Court
    • 21 March 2013
    ...642 O'CALLAGHAN & ORS v MAHON UNREP O'NEILL 6.10.2009 2009/44/10977 2009 IEHC 428 HAUGHEY, IN RE 1971 IR 217 LAWLOR v PLANNING TRIBUNAL 2010 1 IR 170 MURPHY v FLOOD TRIBUNAL 2010 3 IR 136 R v UNIVERSITY OF CAMBRIDGE 1723 1 STR 577 MAHON v AIR NEWZEALAND 1984 AC 808 DE BLACAM JUDICIAL REV......
  • Sheehy v Board of Management of Killaloe Convent Primary School
    • Ireland
    • High Court
    • 9 May 2019
    ...Law Society v. Walker [2006] IEHC 387 and Lawlor v. Members of the Tribunal of Inquiry into Certain Planning Matters and Payments [2010] 1 IR 170 in arguing that the correct standard of proof which should have been applied by the Board in reaching its conclusions was the standard of ‘beyo......
  • McCaffery v Central Bank of Ireland
    • Ireland
    • High Court
    • 3 October 2017
    ...State must pay the cost of his defence.’ 112 Similar views were expressed by Murray C.J. in his judgment in Lawlor v. Planning Tribunal [2010] 1 I.R. 170 (at 189-90): ‘[54] What the case law does establish, in the context of the criminal law, is the right to be provided with legal represent......
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