Cork property developer Owen O'Callaghan has secured leave from the High Court to bring proceedings aimed at preventing the Mahon tribunal further inquiring into or making any findings on allegations made against him by developer Tom Gilmartin.
Those inquiries were due to continue in the tribunal's Quarryvale Two module, scheduled to open today.
Mr O'Callaghan claims the tribunal had ignored "glaring" inconsistencies between Mr Gilmartin's private statements to its lawyers and his evidence on oath and says he no longer has faith in the fairness of the tribunal's process.
Mr O'Callaghan has claimed Mr Gilmartin has made preposterous and entirely untrue allegations in private to the Mahon tribunal, including claims that Mr O'Callaghan had made offshore payments to senior politicians.
He says those allegations were never mentioned in evidence by Mr Gilmartin at the tribunal's public sessions and were concealed by the tribunal.
He alleges the treatment by the tribunal of Mr Gilmartin's evidence in its Quarryvale One module indicates "objective bias" against him and in favour of Mr Gilmartin. He also claims the tribunal had sought to protect Mr Gilmartin from the consequences of the disclosure of various statements made by him and had deprived Mr O'Callaghan of that material.
On these and other grounds, he says the tribunal should be restrained from further inquiring into those allegations in its Quarryvale Two module.
Mr O'Callaghan claims the alleged objective bias is evident from the tribunal's failure to disclose to him - until ordered to do so by the High Court earlier this year - statements made by Mr Gilmartin to tribunal lawyers which were inconsistent with Mr Gilmartin's direct evidence to the tribunal.
Paul Gallagher SC, with Paul Sreenan SC, for Mr Gilmartin, told Mr Justice Henry Abbott yesterday that documents disclosed on foot of the High Court order showed "glaring" and "significant" inconsistencies between Mr Gilmartin's statements to tribunal lawyers during 36 private contacts with them and Mr Gilmartin's evidence to the tribunal.
He said the existence of private statements made by Mr Gilmartin to tribunal lawyers had only come to light as a result of cross-examination by Mr O'Callaghan's legal team. The tribunal had initially refused to disclose in complete and unredacted (unedited) form documents sought by Mr O'Callaghan's team and did so only after being ordered by the High Court.
The tribunal had not appealed against that High Court order.
Mr Gallagher argued that the tribunal had failed to treat Mr O'Callaghan and Mr Gilmartin equally.
After Mr Justice Abbott said he was satisfied a case had been made for judicial review, Mr Gallagher said that given the judicial review application was made on an ex parte basis (only one side represented), he would not at this stage be applying for an injunction to restrain the tribunal from proceeding with its investigations into the allegations made by Mr Gilmartin against Mr O'Callaghan and his companies.
He believed the tribunal should have an opportunity to consider the situation and how it would proceed. Mr Gallagher said his side had indicated to the tribunal in recent correspondence its belief that it was acting unfairly but that his team would, without prejudice to that position, participate in the tribunal. However, that position may have been overtaken by events, he added.
As well as granting leave to Mr O'Callaghan to seek an order restraining the tribunal from proceeding with its inquiry, the judge said Mr O'Callaghan could apply for a stay on such an inquiry pending the outcome of the judicial review. He returned the review proceedings to January 12th.
The proceedings have been taken against the tribunal by Mr O'Callaghan; John Deane, a solicitor and a partner in O'Callaghan Properties; Riga Ltd, Lavitt's Quay, Cork and Barkhill Ltd, the company which developed Liffey Valley shopping centre in Dublin.
The High Court hearing arose after the Supreme Court earlier yesterday granted an application by lawyers for Mr O'Callaghan to lift a High Court order of last July which provided that documents made available to Mr O'Callaghan by the tribunal could only be used for cross-examining Mr Gilmartin and for no other purpose.
In the Supreme Court, lawyers for Mr O'Callaghan said they wanted to use the documents to support a judicial review application aimed at restraining the tribunal from further investigating allegations made by Mr Gilmartin.
Michael Collins SC, for the tribunal, conceded that the documents had been wrongly withheld from Mr O'Callaghan and that had they been made available to him in March 2004, when Mr Gilmartin was giving his evidence, they could have been used to ground a judicial review application.
