Richardson v Judge Alan Mahon and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Dunne
• Judgment Date: 21 March 2013
• Neutral Citation: [2013] IEHC 118
• Court: High Court
• Date: 21 March 2013

[2013] IEHC 118

THE HIGH COURT

[No. 446JR/2012]

Richardson v Judge Mahon & Ors (Planning Tribunal)

BETWEEN

DES RICHARDSON

APPLICANT

AND

JUDGE ALAN MAHON, JUDGE MARY FAHERTY, AND JUDGE GERALD KEYS (MEMBERS OF THE TRIBUNAL OF INQUIRY INTO CERTAIN PLANNING MATTERS AND PAYMENTS)

RESPONDENTS

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701

KEEGAN, STATE v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 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 REVIEW 2ED 2009 338 4.162

HOGAN ADMINISTRATIVE LAW IN IRELAND 4ED 2010 10.1.32

RYANAIR LTD v FLYNN 2000 3 IR 240

AER RIANTA CPT v CMSR OF AVIATION REGULATION UNREP O'SULLIVAN 3.4.2003 2003 IEHC 168

CREEDON, STATE v CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

DONEGAN v DUBLIN CITY COUNCIL UNREP SUPREME 27.202012 2012 2 ILRM 233 2012 IESC 18

E v HOME SECRETARY 2004 QB 1044

KIRRANE v FINLAY UNREP KELLY 2.3.1998 (NO TRANSCRIPT AVAILABLE)

MURPHY v FLOOD 2010 3 IR 136

O'CALLAGHAN v MAHON 2008 2 IR 514

JRM SPORTS LTD T\A LIMERICK FOOTBALL CLUB v FOOTBALL ASSOCIATION OF IRELAND UNREP CLARKE 31.1.2007 2007/30/6126 2007 IEHC 67

DOWNES, IN RE 2006 NIQB 77

JUDICIAL REVIEW

Certiorari

Application for judicial review - Certiorari - Report of tribunal of inquiry - Fair procedures - Unreasonableness - Error of fact - Lack of candour - Whether findings flowed from evidence - Whether error of fact within jurisdiction - Meadows v Minister for Justice [2010] IESC 3, [2010] 2 IR 710; E v Home Secretary [2004] QB 1044; JRM Sports Limited v Football Association of Ireland [2007] IEHC 67, (Unrep, Clarke J, 31/1/2007) and In re Downes [2006] NIQB 77 considered - Ryanair v Flynn [2000] 3 IR 240 and O'Callaghan v Judge Mahon [2009] IEHC 428, (Unrep, O'Neill J, 6/10/2009) followed - Murphy v Judge Flood [2010] IESC 21, [2010] 3 IR 136 and In re Haughey [1971] IR 217 distinguished - Application refused (2012/466JR - Dunne J - 21/3/2013) [2013] IEHC 118

Richardson v Judge Mahon

Facts: The applicant sought by way of judicial review to quash the report of a Tribunal of Inquiry into certain matters and payments. The applicant challenged findings into payments, including adverse findings to the applicant, in the absence of an evidential basis and challenged also inter alia their irrationality and unreasonableness. The lack of candour of the applicant was considered by the Court.

Held by Dunne J. that this was not a case where judicial review should strictly be granted, but that the Court was of the view that if the Court was mistaken in this regard, there was a lack of candour on the part of the applicant which would have an effect on the weight of the evidence of the applicant. The applicant had alleged an error of fact which was not amenable to review. It was an artificial exercise to break down the findings and alleged irrationality or unreasonableness.

1 Judgment of Ms. Justice Dunne delivered the 21 day of March 2013

2 The applicant herein seeks an order of certiorari by way of judicial review quashing so much of the first and final report of the Tribunal of Inquiry into certain matters and payments (Mahon report) as reported on 22 ^nd March 2012, together with ancillary and declaratory relief.

3 The Tribunal was originally established in October 1997 to investigate planning matters in North County Dublin and its terms of references was subsequently expanded to empower it to investigate all improper payments paid to politicians in connection with the planning process. The Tribunal adopted a modular approach to its inquiry and one of those modules was the Quarryvale Module which inquired to the purchase, development and rezoning of approximately 180 acres to the West of Dublin city in the late 1980s and early 1990s.

4 The Quarryvale Module involved an inquiry by the Tribunal inter alia into allegations made by Mr. Tom Gilmartin, that in 1992, Mr. Owen O'Callaghan informed him that he, Mr. O'Callaghan had paid a total of IR£80,000 to Mr. Bertie Aherne between 1989 and 1992 when Mr. Aherne was a government minister. The Tribunal examined Mr. Aherne's finances to establish whether Mr. Aherne received any substantial sums of money from Mr. Owen O'Callaghan, whether directly or indirectly, as alleged by Mr. Gilmartin.

5 One item examined in respect of Mr. Aherne's finances related a lodgement of £22,500 to a bank account in the name of Mr. Aherne on the 30 ^th December 1993. The applicant herein gave evidence to the Tribunal in the course of its investigation into the source of the funds used for that lodgement on days 789, 790, 791 and 861 of the public sittings. The evidence in relation to the sum of £22,500 was that it was made up of a sum of £15,000 in cash, a sum of £5,000 in the form of a bank draft payable to the applicant in the name of Roevin Ireland Limited and a cheque for the sum of £2,500 payable to cash dated the 22 ^nd December 1993 drawn on the account of Will Dover Limited at Bank of Ireland in Montrose, Dublin 4 (an account controlled by the applicant and which cheque was signed by the applicant).

6 There was a significant dispute in the course of the evidence as to the source of the sum of £5,000 in the form of the bank draft. In order to explain precisely the issue that arose in this regard it is necessary to explain that there was evidence from a number of witnesses before the Tribunal including the applicant herein that the sum of £15,000 was the result of a "whip around" among Mr. Ahern's close friends, which was organised jointly by the applicant and a Mr. Gerry Brennan, the solicitor for Mr. Ahern in family law proceedings. Mr. Ahern gave evidence that he accepted the whip around as a loan from his friends. The applicant herein in his evidence in relation to the sum of €5,000 testified that he solicited a contribution from Mr. Padraig O'Connor who was in 1993, the managing director of NCB Group ("NCB Stockbrokers") and that he sought this sum on the basis that he believed that Mr. O'Connor and Mr. Ahern were friends. Mr. O'Connor testified that in December 1993, the applicant told him that Mr. Ahern's constituency office was seeking to raise a sum of approximately £20,000 to £25,000 to fund its annual running costs and that the applicant solicited a contribution of £5,000 from NCB Stockbrokers towards that fund. Mr. O'Connor gave evidence that NCB Stockbrokers agreed to make the donation but wished to keep it private and undisclosed. He also added that while he and Mr. Ahern had a friendly professional relationship at that time, they were not close personal friends.

7 The applicant then testified that as a result of the confirmation by Mr. O'Connor that he would contribute the sum of £5,000 to the £22,500 fund, he purchased a bank draft for £5,000 at the Bank of Ireland branch in Montrose in December 1993, and this bank draft represented Mr. O'Connor's contribution to the fund. Initially he stated that the source of funds that purchased the £5,000 draft was the Willdover account, because a cheque of £5,000 was drawn in that account on the 22 ^nd December, 1993, the same day as the draft was purchased. On receipt of further information from Bank of Ireland, the Tribunal put to the applicant and he accepted that the source of funds used to purchase the bank draft was in fact a company called Roevin Ireland Limited. The Roevin account had been opened in October 1992, at Bank of Ireland, Montrose, Dublin 4, with a lodgement of £39,000. The £5,000 Roevin bank draft was drawn from that account.

8 It appears that NCB Stockbrokers did make a payment on the 16 ^th March, 1994, of £6,050 (representing £5,000 plus VAT at 21%) to Euro Work Force Limited. That company was operated by Mr, Des Maguire, a business associate of the applicant. The payment was in respect of a fictitious invoice dated the 14 December, 1993, from Euro Work Force Limited to NCB Group for a health and safety survey of the premise at Mount Street, Dublin, which never took place. The payment was intended to be for the benefit of Mr. Ahern. The Tribunal found that the applicant did not disclose to the Tribunal the true source of the funds which purchased the £5,000 draft, a finding that is not challenged by the applicant.

The findings challenged by the applicant.

9 The applicant herein is challenging the following paragraphs of the final report. The text which is emphasised in bold is the text being challenged in these proceedings:-

10 2 "4.162 The Tribunal noted that the Roevin Ireland Limited bank account from which Mr. Richardson purchased the IR£5,000 draft payable to himself, and which ultimately ended up with Mr. Ahern, was opened on the 9 ^th October, 1992, a time when, from Mr. Richardson's account of events Roevin Ireland Limited had ceased operating business in Ireland. The applicant claimed not to have any knowledge of the source of the IR£39,000, which opened the account in October 1992, or why there was a debit of IR£2,000 one month later (16 ^th November, 1992). The Tribunal rejected the applicant's evidence in this regard."

11 The second paragraph under challenge is as follows:-

12 3 "4.163 The Tribunal found it incredible that the applicant, who, without difficulty appeared able to access the account of Roevin Ireland Limited on the 22 ^nd December, 1993, and to use its funds to obtain a draft payable to himself, was unable to account to the Tribunal for the origins of the funds in the account. The Tribunal did not believe that applicant in this regard, and concluded that the applicant, in all probability, knew thereason why the account was opened and its purpose, and that he...