Developer's challenge to tribunal rejected

THE HIGH Court has rejected a challenge by developer Owen O’Callaghan and other Cork-based individuals and companies to the Mahon tribunal’s refusal to give them, in advance of the tribunal’s final report, any draft findings relating to them which may be included in that report.

Mr Justice Iarfhlaith O’Neill ruled yesterday the refusal to given the applicants any such findings did not breach their rights to fair procedures and said those rights had, to date, been “fully vindicated” by the tribunal.

The challenge was brought by Mr O’Callaghan, Glen Farm Upper, Rochestown Road; John Deane, a solicitor and property developer, Invercairn, Monastery Road; Riga and Barkhill Ltd, with registered addresses at Lavitt’s Quay Cork; Aidan Lucey, Birchley, Model Farm Road; Clare Cowhig, Dunboige, Churchyard Lane, Well Road; and CHK Partnership, South Mall.

The case arose from evidence to the tribunal over Barkhill’s acquisition of an interest in the Quarryvale site in Co Dublin. Mr O’Callaghan and Mr Deane are directors of Riga and Barkhill and Mr Lucey is the secretary of both firms. Ms Cowhig, an accountant with CHK, gave evidence related to work done for the O’Callaghan companies.

In his judgment, Mr Justice O’Neill noted it was accepted no evidence had been given that had potentially prejudicial effects on the reputations of the last three applicants (Mr Lucey, Ms Cowhig and CHK).

He said the applicants had been given ample notice of the evidence which was of individual concern to them and had had ample opportunity to deal with it. They had not established they were in any way impeded in making submissions or dealing with additional facts that arose in the evidence.

Although the volume of the evidence made addressing it a burdensome task, that did not require the tribunal to give the applicants any provisional findings concerning them, he also found. There was no authority for such a procedure in the context of a full public inquiry.

Given the nature of the matters under inquiry, the participation of the applicants in the tribunal and the degree of disclosure to them by the tribunal, the judge said he found “somewhat unreal or unconvincing” the applicants’ apprehension they would somehow miss or misinterpret matters either adverse or of significance to them.

The point had now been reached where all the evidence had been heard and, subject to the tribunal’s consideration of submissions on that evidence, nothing remained but to leave the tribunal alone to make its findings and recommendations, he said.

He added the applicants appeared to equate the tribunal’s procedures with procedures in litigation but, in a tribunal, there was no “case” to be answered by the applicants. There was no want of fairness by the tribunal and while the applicants might be anxious they had missed something, the reality was there could not, in an inquisitorial process, be the same yardstick against which to measure evidence as there was in an adversarial process.

It was now up to the tribunal to make its findings and seeking disclosure now of any potential criticism of the applicants was “inappropriate and futile”. Such criticisms as may arise could only result from the findings of fact yet to be made.

In those circumstances, the orders sought by the applicants would in all likelihood result in “a repetitious and unnecessary prolongation” of the inquiry and he would refuse the orders.