Lawlor -v- Members of the Tribunal of Inquiry into Certain Planning Matters & Payments,  IESC 50 (2009)
|Party Name:||Lawlor, Members of the Tribunal of Inquiry into Certain Planning Matters & Payments|
THE SUPREME COURT
[S.C. No. 376 of 2008]Murray CJ.
THE MEMBERS OF THE TRIBUNAL OF INQUIRY
INTO CERTAIN PLANNING MATTERS AND PAYMENTS
JUDGMENT of the Court delivered by the Chief Justice, the Hon. Mr. Justice John L. Murray on the 1st day of July, 2009
This is an appeal brought from the judgment and order of the High Court (Murphy J.) delivered on 31st 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 order directing the respondents to make all necessary financial arrangements to enable her to engage effective legal representation in the course of proceedings before the respondents.
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 4th November, 1997, as amended by further instruments dated 15th July, 1998, 24th October, 2002, 7th July, 2003, and 3rd December, 2004. These instruments were made in pursuance of resolutions passed by Dail Eireann on 7th October, 1997 and by Seanad Eireann on 8th October, 1997, and by further resolutions passed by Dail Eireann on 1st July, 1998 and by Seanad Eireann on 2nd July, 1998, by Dail and Seanad Eireann on 28th March, 2002, by Dail Eireann on 3rd July, 2003 and by Seanad Eireann on 4th July, 2003 and by Dail and Seanad Eireann on 17th November, 2004.
The Hon. Mr. Justice Feargus Flood was appointed sole member of the Tribunal on 4th November, 1997. On 24th 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 27th June, 2003 and Judge Mahon replaced him as chairperson on 7th July, 2003. Judge Keyes was appointed as a member of the Tribunal on the same date.
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."The terms of reference material to the present application are set out at paragraph A(5) of the resolutions passed on 7th October, 1997 and amended by resolutions passed by Dail Eireann on 1st July, 1998 and Seanad Eireann on 2nd July, 1998 and paragraph J(1) of the resolutions passed on 17th 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."
Since its establishment on 4th 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.
Mr. Liam Lawlor first became involved with the Tribunal in 1998. He was involved in the following modules:-
· Carrickmines I
· Carrickmines II and related issues
· Arlington/Quarryvale I
· Quarryvale II
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.
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 22nd 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 29th 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.
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.
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 of Inquiry. The Beef Tribunal did take, and Hederman J. acknowledged it was entitled to take, a higher standard of proof but that it wasn't necessary for it to do so. ... It does seem to me accordingly that the application for reliefs that the respondents may not make any findings of serious misconduct against the late husband of the applicant unless supported by evidence proven beyond reasonable doubt is not substantiated by the arguments and submissions made."In relation to the application directing the respondents to make all necessary financial arrangements to enable the plaintiff engage legal representation for herself in the course of proceedings before the respondents, the learned trial judge stated:-"The Court is conscious that the Tribunal has been ongoing for over a decade and, indeed, the affidavits filed on behalf of the applicant describe in considerable detail the complaints which the late Mr. Lawlor had with the Tribunal. The Court notes the opening of Mr. McGonigal's application to the Court that the Tribunal had made no findings against the late Mr. Lawlor. There was no evidence as to the responsibility for the length of the Tribunal's deliberations.
The current claim in relation to standard of proof and the question of costs of legal representation are both matters which could have been raised in Judicial Review proceedings by Mr. Lawlor in his lifetime. The bringing of this application years after his unfortunate death are outside the time fixed by Order 84, Rule 21 of the Rules of the Courts, and this should be the basis of the Court's discretion in refusing the relief." Murphy J. also noted that tribunals have no inherent power to provide for an applicant's costs and further noted that tribunals themselves have no funds or assets out of which such provision can be made. He further noted that the applicant had not sought to keep the State as a party in the proceedings for the purpose of seeking costs of representation. He noted also that the Tribunal was neither a criminal trial nor a civil trial and that there was no claim in the proceedings for a declaration that the legal provisions establishing tribunals of inquiry were incompatible with the European Convention. He further noted that no evidence had been adduced in relation to the applicant's financial means and for all of these reasons refused to direct the respondents to provide legal...
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