THE WAY has been cleared for the planning tribunal to publish its final report after the Supreme Court threw out the last remaining legal challenge to the inquiry.
The court yesterday disallowed an appeal by developer Owen O’Callaghan and other Cork-based individuals and companies against a High Court decision upholding the tribunal’s refusal to circulate draft findings before publication of its report.
The tribunal had refused to say when its report would be published until the O’Callaghan case was concluded. According to one estimate, it may take up to six months for the long-awaited report to appear.
Chief Justice John Murray said Mr O’Callaghan had failed to provide any grounds to show that the tribunal would not comply with the law and fair procedures. He awarded costs in both the High and Supreme Court cases against the developer.
Lawyers for Mr O’Callaghan had argued that the tribunal should be required to provide their client with details of any finding critical of him which they proposed to make in the report. Failure to do so would breach their right to fair procedures and to their good names, it was claimed.
The tribunal, in its legal submissions, claimed there was no basis for Mr O’Callaghan’s concern as his legal and constitutional rights were not infringed.
Mr O’Callaghan was a major witness during the tribunal’s hearings into allegations of planning corruption at the Quarryvale site, which was part-owned by one of his companies. The court heard that Mr O’Callaghan gave evidence for 33 days of the 257 days of the Quarryvale hearings at the tribunal. He first gave evidence in 2004 but was first contacted by the inquiry six years before this, according to his counsel, Paul Sreenan SC.
The case was brought by Mr O’Callaghan, John Deane, Riga and Barkhill Ltd, Aidan Lucey, Clare Cowhig and CHK Partnership, all with addresses in Cork. Mr O’Callaghan and Mr Deane are directors and Mr Lucey is secretary of Riga and Barkhill. Ms Cowhig is an accountant with CHK, which carried out work for the O’Callaghan companies.
Mr Sreenan said all his clients were seeking was “some help” in relation to any matters they might need to concern themselves with at the end of the inquiry. If the tribunal planned to make any findings that were critical of his clients, they should be given the opportunity to address these before the report was published.
At similar inquiries in the UK, people against whom findings were about to be made were given the opportunity to be heard first, he said.
Mr Sreenan said there was no closing statement drawing together what tribunal counsel saw as the main issues. Judicial review of the tribunal report would not be an adequate remedy, particularly after a report was published with great publicity.
Mr Justice Nial Fennelly said it would be a gross breach of duty by the tribunal to make a finding on a matter which had not been put to a witness. Yet this was what the applicants were asking the court to presume the tribunal would do.
Michael Collins SC, for the tribunal, said there was no evidential basis for Mr O’Callaghan’s concern. Tribunals were different from adversarial litigation and did not make allegations. There were no charge-sheets or statements of claim and when fresh allegations were made those concerned were notified.
Delivering the court’s judgment, Mr Justice Murray said the appeal was based on a hypothesis that the tribunal would fail to observe principles of natural justice by making adverse findings about parties without notifying them in advance.
While the future conduct of the tribunal was being questioned on a hypothetical basis, it was duty bound to proceed in accordance with principles of fair procedures. The appellants had failed to show that the inquiry wouldn’t comply with these principles and there were no grounds for making the order requested.
Mr Justice Murray said this didn’t prevent the tribunal from exercising discretion.
MAHON TRIBUNAL INQUIRY HAS €250m PRICE TAG
THE PLANNING tribunal has sat for more than 900 days since it was established in 1997 to examine planning irregularities.
The first phase of the inquiry investigated allegations concerning former Fianna Fáil minister Ray Burke, former Dublin county manager George Redmond and a number of builders and developers.
Since 2004, however, most of its investigations have stemmed from allegations made by former lobbyist Frank Dunlop about planning corruption in the Dublin area.
The inquiry was originally chaired by Mr Justice Feargus Flood until his retirement in 2002. He was then succeeded by a new chairman, Judge Alan Mahon, along with two other members, Judge Mary Faherty and Judge Gerald Keys.
Evidence has been taken from more than 420 witnesses. But proceedings have been interrupted frequently by legal challenges, more than 30 of which have been through the courts.
The latest official estimate of the cost of the inquiry stands at about €250 million, though many regard this as an underestimate as the final cost of third-party legal bills has yet to be determined.
