Developer fails to halt inquiries by tribunal

Cork property developer Owen O'Callaghan has lost on all grounds a bid to prevent the Mahon tribunal further inquiring into or making any findings on allegations made against him by developer Tom Gilmartin.

The tribunal proposes to continue those inquiries in its Quarryvale Two module.

Mr O'Callaghan had claimed Mr Gilmartin has made "entirely untrue" allegations in private to the tribunal, including claims that Mr O'Callaghan had made offshore payments to senior politicians. He claimed those allegations were never mentioned in evidence by Mr Gilmartin at the tribunal's public sessions and were concealed by the tribunal.

At the High Court yesterday, after dismissing the proceedings by Mr O'Callaghan and others, Mr Justice Thomas Smyth continued for another week, with the consent of the sides, a stay on the tribunal conducting public hearings in the Quarryvale Two module. The stay was continued to allow Mr O'Callaghan's lawyers consider whether to bring an appeal to the Supreme Court and the case was adjourned for mention to Wednesday next.

The proceedings against the tribunal were brought by Mr O'Callaghan; John Deane, a solicitor and a partner in O'Callaghan Properties; Riga Ltd, of Lavitt's Quay, Cork and Barkhill Ltd, the company which developed the Liffey Valley shopping centre in Dublin.

The tribunal had ignored "glaring" inconsistencies between Mr Gilmartin's private statements to its lawyers and his evidence on oath and he no longer has faith in the fairness of the tribunal's process, Mr O'Callaghan said.

He accused it of bias against him and in favour of Mr Gilmartin in relation to its treatment of Mr Gilmartin's evidence in its Quarryvale One module.

In his reserved judgment yesterday, Mr Justice Smyth rejected all of those claims.

He was satisfied, following court decisions requiring the tribunal to disclose certain documents to Mr O'Callaghan and to adhere to certain procedures, that the tribunal had adapted its policies and was anxious that Mr O'Callaghan and other parties be given the opportunity for a full and effective cross-examination.

While most of the public hearings connected with the Quarryvale One module may be complete, it was clearly the tribunal's intention to resume hearings to complete outstanding issues, he said. In his judgment, it was incumbent on the tribunal to recall Mr Gilmartin so as to allow the applicants, who now had all the necessary documents, to exercise the effective cross-examination of Mr Gilmartin which they claimed to have been denied in the past.

The Quarryvale Two module had not yet been embarked upon and, in that regard, the tribunal had followed the courts' guidance in relation to the circulation of documents and other matters, he also noted. Mr Justice Smyth said the applicants contended Mr Gilmartin had on many previous occasions made statements which were "glaringly and significantly inconsistent" with statements given by him in evidence.

Even if that was correct, it was the prerogative of cross-examining counsel to exploit any such inconsistency, he said. The applicants also contended Mr Gilmartin had made false allegations against them, the judge said.

If that was correct, their counsel now had the opportunity to satisfy the tribunal of such. It was also not unreasonable for the tribunal, when dealing with Mr Gilmartin, to approach its task with an open mind and assume that, in giving information, Mr Gilmartin was acting in good faith and honestly, the judge said.

While he was satisfied the claim of bias had not been made out, the judge said that, even if it was made out, he would reject the "unreal" claim that the Quarryvale One and Two modules should be restarted under a new tribunal.

The judge also rejected claims that Mr Gilmartin was accorded special or preferential status by the tribunal or that the tribunal's dealing with him, when compared with its dealing with Mr O'Callaghan, amounted to inequality of treatment.

Mr Justice Smyth said the tribunal had stated a number of times its members had not formed any view on the matters it was inquiring into and would remain open-minded until they had heard all the evidence in public. The tribunal had also stressed any such findings would be based only on the evidence heard in public and not on matters investigated during its private inquiry stage.

While the tribunal had made a mistake in not producing at an earlier stage to Mr O'Callaghan documents since produced to him, following court proceedings, such an error was not a determination in any way of the issues which had to be ultimately resolved by the tribunal, the judge found.