Minority judgment:The Mahon tribunal has treated property developer Owen O'Callaghan unfairly to date and, as presently constituted, is not likely to treat him or associated others fairly into the future, Mr Justice Adrian Hardiman said.
If the tribunal is permitted to continue with its inquiry and to make findings against the appellants, this would represent "a very marked coarsening of our standards of procedural fairness".
However, the inquiry could be conducted by a tribunal made up of other persons, he believed.
While he accepted the present members of the tribunal "sincerely believe" they could hear and make findings on the allegations made against Mr O'Callaghan and other appellants in a fair and unbiased manner, he could not accept, given all that has happened and especially after seeing documents withheld from the appellants, that either they or a reasonable observer could accept that.
He was giving the sole judgment allowing the appeal of Mr O'Callaghan, John Deane and two companies against the High Court's rejection of Mr O'Callaghan's challenge to the tribunal.
In his 127-page decision, Mr Justice Hardiman noted retired Canadian Supreme Court judge Peter Cory had said in another case that "the search for truth does not excuse the violation of the rights of individuals being investigated . . . no matter how important the work of an inquiry might be".
He regretted that Mr O'Callaghan, Mr Deane and the companies had not been seen to be treated fairly by the tribunal to date.
It was necessary to understand the nature of the documents not initially disclosed by the tribunal to Mr O'Callaghan, until ordered to do so by the courts, to understand the claim that he was unfavourably prejudged by the tribunal.
The tribunal had made objectively wrong and extraordinarily unfair decisions to withhold statements by Mr Gilmartin which directly contradicted allegations he was now making against Mr O'Callaghan.
The effect of withholding the various documents "was to protect Mr Gilmartin and to handicap those who dispute what he says".
The fact that those documents were now available did not end the complaint because Mr O'Callaghan would have to use the material in cross-examination before those who took the decision to suppress it and try and persuade them they were wrong in their previous private assessment of the material.
He could not accept as accurate the tribunal's explanation that the non-disclosure was a "mistake".
