Court overturns tribunal order

The Supreme Court has unanimously overturned a refusal of costs to two directors of a building firm over their dealings with the Planning tribunal.

The decision sets out important parameters for assessing entitlement to costs of dealing with tribunals.

The five judge court today ruled findings by former tribunal chairman Mr Justice Feargus Flood that two directors of Joseph Murphy Structural Engineers (JMSE) - Joseph Murphy Junior and Frank Reynolds - had “obstructed and hindered” its enquiries were outside the tribunal’s terms of reference, unlawful and invalid and could not form a basis for refusing them their costs of participating in the tribunal.

The court stressed the tribunal had been dealing only with an application by the JMSE side for its costs and had not addressed any applications for costs against JMSE. It also stressed a tribunal is entitled to take into account lack of co-operation by a party with it when addressing costs.

The court ruled, because the findings of obstruction and hindrance were inextricably linked with the tribunal’s substantial finding of corruption against the JMSE directors (which they had not appealed), and was therefore linked with a criminal offence, those findings were unlawful as the tribunal does not constitute the administration of justice.

While a tribunal can investigate whether a criminal offence has been committed, the planning tribunal’s terms of reference did not refer to hindering and obstructing and a finding of such behaviour, which this tribunal had described as a criminal offence, was not within its scope.

The tribunal appeared to have equated obstructing and hindering with the giving of evidence by the JMSE side which it disbelieved, Mr Justice Nial Fennelly said. The findings of obstruction and hindering were validly reached.

The court also ruled the tribunal’s decision breached fair procedures because it gave no notice to JMSE of its intention to address the issues of obstruction and hindrance and they had no opportunity to make submissions on that.

In a judgment, Mr Justice Fennelly stressed costs might be disallowed because of the conduct of a party before the tribunal but not by reference to substantive findings on the subject matter of its inquiry.

A tribunal of inquiry is established to service the public interest and it was in the public interest all with relevant information should co-operate with it, which could expose them to very substantial legal expenses. Anyone living in Ireland over

the past 20 years “could not be unaware” of the cost of tribunals.

The ordinary presumption should be in favour of reimbursement of those costs, he said.

Ms Justice Susan Denham said the issue is whether a party has co-operated with a tribunal so to be entitled to their costs. A person found to be corrupt “who fell on his sword” and fully co-operated with a tribunal would be entitled to assume, unless there were other relevant factors, they would get their costs. This was to facilitate the running of a tribunal.

The tribunal, in reports by Mr Justice Flood of 2002 and 2004, had found Mr Murphy Junior and Mr Reynolds, repsectively chairman and managing director of JMSE were involved in making corrupt payments to former Minister Ray Burke and former Dublin City Council chairman George Redmond.

Mr Justice Flood found they obstructed and hindered the tribunal by giving a false account of relevant events and falsely constructing an untrue alibi.

Dealing with costs in 2004, new tribunal chairman Mr Justice Alan Mahon said he had to have regard to the reports’ findings and was firmly of the view that meant the findings of corruption.

The findings of obstructing and hindering were so serious any reasonable person was entitled to conclude they were intent the tribunal would not discover the truth, he also said. Their conduct in dealing with the tribunal was unlawful and disreputable and he would refuse them costs.

Ms Justice Susan Denham said the costs ruling arose from the findings of obstruction and hindrance which in turn was inextricably linked with the substantive finding of corruption against the appellants. The corruption finding had not been appealed.

The context for an analysis of the law of costs is the tribunal does not constitute the administration of justice, she said. The tribunal did not have jurisdiction to make findings of obstruction and hindrance in the context of a reference to a criminal offence and was not entitled to determine that, in fact, criminal offences occurred.