Redmond v Mr Justice Fergus Flood and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Gilligan
• Judgment Date: 28 March 2012
• Neutral Citation: [2012] IEHC 253
• Court: High Court
• Date: 28 March 2012

[2012] IEHC 253

THE HIGH COURT

[No. 1367 P/2005]

Redmond v Justice Flood & Ors

No Redaction Needed

BETWEEN

GEORGE REDMOND

PLAINTIFF

AND

MR. JUSTICE FEARGUS FLOOD (THE FORMER SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), HIS HONOUR JUDGE ALAN MAHON, HER HONOUR JUDGE MARY FAHERTY AND HIS HONOUR JUDGE GERALD KEYES (THE MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS), IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

RSC O.27 r1

MURPHY v FLOOD 2010 3 IR 136

CALDWELL v MAHON TRIBUNAL UNREP SUPREME 9.6.2011 2011/7/1603 2011 IESC 21

RSC O.84 r21

O'DONNELL v DUN LAOGHAIRE 1991 ILRM 301

RSC O.84

ANGLO IRISH BEEF PROCESSORS LTD v MONTGOMERY 2002 3 IR 510

DESMOND v MGN LTD 2009 1 IR 737 2008/12/2410 2008 IESC 56

COMCAST INTERNATIONAL HOLDINGS INC & ORS v MIN FOR PUBLIC ENTERPRISE & ORS UNREP GILLIGAN 13.6.2007 2007/10/1913 2007 IEHC 297

STEPHENS v PAUL FLYNN LTD 2008 4 IR 31

PRIMOR PLC v STOKES KENNEDY CROWLEY 1996 2 IR 450

RAINSFORD v LIMERICK CORPORATION 1995 2 ILRM 561

GOODMAN INTERNATIONAL v MR JUSTICE HAMILTON 1992 2 IR 542

O'CALLAGHAN v MAHON 2006 2 IR 32

PRACTICE AND PROCEDURE

Delay

Application to dismiss proceedings for want of prosecution - Inordinate and inexcusable delay - Interests of justice - Statement of claim withheld pending delivery of related judgment - Notice of intention to proceed - Prejudice - Balance of justice - Planning tribunal - Plaintiff required to give evidence and make discovery - Application for costs refused - Findings of corruption - Finding that obstructed tribunal - Plaintiff seeking declaratory relief - Unconstitutionality - Judicial review more appropriate - Application of judicial review time limits to plenary proceedings - Pre-commencement delay - Tribunal acting ultra vires - Whether delay inordinate - Whether delay inexcusable - Whether balance of justice in favour dismissal - Caldwell v Judge Mahon [2011] IESC 21, (Unrep, SC, 9/6/2011); O'Donnell v Dun Laoghaire Corporation [1991] ILRM 301; Anglo Irish Beef Processors Ltd v Montgomery [2002] 3 IR 510; Desmond v MGN Ltd [2008] IESC 56, [2009] 1 IR 737; Comcast International Holdings Inc v Minister for Public Enterprise [2007] IEHC 297, (Unrep, Gilligan J, 13/6/2007); Stephens v Paul Flynn Ltd [2008] IESC 4, [2008] 4 IR 31; Primor plc v Stokes Kennedy Crowley [1996] 2 IR 450; De Roiste v Minister for Defence [2001] 1 IR 190; Rainsford v Limerick Corporation [1995] 2 ILRM 561; Goodman International v Mr Justice Hamilton [1992] 2 IR 542 and O'Callaghan v Mahon [2005] IESC 9 & [2005] IEHC 265, [2006] 2 IR 32 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 27, r 1 and O 84, r 21 - European Convention of Human Rights Act 2003 (No 20) - Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (No 3) - Tribunals of Inquiry (Evidence) (Amendment) Acts 1921-2004 (No 13) - Claim partially dismissed (2005/1367P - Gilligan J - 28/3/2012) [2012] IEHC 253

Redmond v Judge Flood

Facts: The plaintiff had been compelled to attend the Mahon Tribunal ("the Tribunal"), formerly known as the Flood Tribunal. A number of serious findings were made in relation to the plaintiff in respect of hindering the operation of the Tribunal, as well as corruption. The plaintiff was also refused his costs in respect of the Tribunal proceedings. The plaintiff began an action in 2005 claiming the relevant statutory provisions for the Tribunal, as well as the findings of the Tribunal, were unconstitutional. The defendants now sought to have the action dismissed due to the delays in advancing the claim, alleging want of prosecution.

Held by Gilligan J, that the respective submissions of the parties would be considered in the light of the relevant case law. The principles found in the case law would be applied to the facts in the instant case. O'Donnell v Dun Laoghaire [1991] ILRM 301, Rainsford v Limerick Corporation [1995] 2 ILRM 561 and Murphy v Flood [2010] 3 IR 136 applied.

The Court considered the plaintiff had been culpable of inordinate delay in prosecuting his claim. Further, the delay was inexcusable given the lack of communication with the defendants.

In respect of the costs decision, the balance of justice favoured the plaintiff's claim proceeding to trial, and the motion to dismiss this part of the claim failed. However, in respect of the substantive findings of the Tribunal the balance favoured dismissing his claim.

An order was made accordingly.

1 JUDGMENT of Mr. Justice Gilligan delivered on the 28th day of March, 2012

Introduction

2 1. Pursuant to a motion, dated the 4 ^th July, 2011, as brought by the first, second, third and fourth defendants (collectively, unless the context suggests otherwise, "the Tribunal Defendants"), orders are sought dismissing the plaintiff's action on a number of grounds, namely inordinate and inexcusable delay; the interests of justice or the public interest or both, and the jurisdiction under Order 27, rule 1 of the Rules of the Superior Courts 1986 (as amended) (the "R.S.C.") to dismiss an action for want of prosecution. The matter came on for hearing on the 17 ^th and 18 ^th January last.

3 2. While the fifth and sixth defendants ("the State Defendants") also brought a similar motion against the plaintiff ("Mr. Redmond") and submitted written submissions to the court, on the second day of the hearing the proceedings against the State Defendants were struck out without any order by agreement between all parties.

Factual Background

4 3. The Tribunal of Inquiry into Certain Planning Matters and Payments (otherwise the "Flood" and later the "Mahon Tribunal", or simply the "Tribunal" unless the context implies otherwise) was established by resolution of Dáil Éireann and appointed by instrument of the Minister for the Environment and Local Government dated the 4 ^th of November, 1997. The terms of reference of the Mahon Tribunal have been amended on four occasions since its inception.

5 4. As part of the Tribunal's inquiry, the plaintiff was required to attend public hearings, to give evidence and to make discovery of certain documentation in his possession. On the 15 ^th October, 2004, which was Day 528, at pp. 59 - 62, the Mahon Tribunal refused Mr. Redmond's application for costs (the "Costs Decision"). In the course of this decision, Judge Mahon made references to the findings of Mr. Justice Flood that Mr. Redmond had obstructed and hindered the Tribunal and also a number of findings of corruption which were made against him (the "Substantive Findings"). These are set out in The Third Interim Report of the Tribunal of Inquiry into Certain Planning Matters and Payments (the "third interim report") dated the 30 ^th September, 2002. The publication of the third interim report was delayed pending the determination of criminal proceedings against Mr. Redmond until the 21 ^st January, 2004, when it was then published.

6 5. Before turning to the plenary summons, it must be noted that Mr. Redmond was convicted on charges of corruption on the 19 ^th November, 2003, sentenced on the 19 ^th December, 2003, and imprisoned for a period of 12 months. The Court of Criminal Appeal quashed his conviction on the 28 ^th July, 2004, did not direct a re-trial and he was accordingly released. He was subsequently tried on two separate charges of corruption and in May 2008 the jury failed to reach a verdict on the first count, while he was acquitted on the second count.

7 6. The original plenary summons was issued on the 14 ^th April, 2005, and served the following day. The general endorsement of claim sought a number of reliefs. In particular the plaintiff sought substantive reliefs which were framed as declarations and can be paraphrased in the following terms:

8 (i) a declaration that provisions of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 (as amended) were unconstitutional;

9 (ii) a declaration that findings of the first defendant were invalid and void for lack of jurisdiction;

10 (iii) a declaration that the finding that the plaintiff had received a corrupt payment and that he had hindered and obstructed the Tribunal and therefore that he was not entitled to the costs of his legal representation amounted to a determination of criminal guilt and the imposition of a penalty which constituted the administration of justice and was therefore unconstitutional;

11 (iv) a declaration that the provisions of the Tribunals of Inquiry (Evidence) (Amendment) Acts 1921- 2004 which purport to authorise the Tribunal to compel the attendance of a person at public sittings and to make discovery of documents without providing for the reimbursement of expenses was unconstitutional;

12 (v) a declaration that the finding made against the plaintiff in circumstances where his right to cross examine was curtailed and where he was not permitted to call witnesses or to adduce evidence was unconstitutional;

13 (vi) a declaration that the manner in which the Tribunal conducted its investigation, the scope of that investigation and its scale were, in the absence of legal aid or a guarantee that costs would be reimbursed, an unjust attack on the plaintiff's good name;

14 (vii) a declaration that proceedings of the Tribunal (including inter alia the finding of a corrupt payment) constituted a contravention of the provisions of the European Convention of Human Rights Act 2003; and

15 (viii) a declaration that the plaintiff is now entitled to be indemnified by the State in respect of all costs incurred by him in his dealings with the Tribunal.

16 The plaintiff also sought damages under various headings, costs and "further or other relief". In essence, therefore, the plaintiff's claim is primarily targeted at the substantive findings made against him, as well as...