False evidence cited as Baileys' cost claim refused

The planning tribunal has refused an application for costs, believed to run into millions of euros, from the developers, Mr Michael Bailey and Mr Tom Bailey, and Tom's wife Caroline.

Judge Alan Mahon ruled yesterday that it would not be "fair or equitable" to award any costs to the Baileys because they gave false evidence and failed to co-operate with the tribunal. In a separate ruling, Judge Mahon awarded a solicitor, Mr John Caldwell, most of his costs in respect of his early dealings with the tribunal.

On the Baileys, the chairman said the tribunal's findings pointed to "a calculated and deliberate attempt to ensure that the tribunal would never find the truth". In those circumstances, the tribunal would have had to exonerate them from wrongdoing or else fail to reach any conclusion about the allegations they faced.

Having reviewed the correspondence between the tribunal and the solicitors for the Baileys, as well as the transcripts of evidence, Judge Mahon concluded: "It is more than apparent to me that the applicants' non-co-operation was widespread and did cast a shadow over the bulk of the evidence given by them on issues which were being properly investigated by the tribunal.

"The extent of their obstruction and hindrance necessitated and prolonged a detailed investigation into a variety of matters, with the consequence that it can be reasonably stated that the applicants were themselves responsible for incurring much of the costs which they undoubtedly incurred."

Smith Foy, the solicitors who represented the Baileys and their company Bovale Developments, have not submitted an estimate of their costs but Judge Mahon said yesterday these would be "undoubtedly substantial". Their interests were represented for 118 days at the tribunal by Mr Colm Allen SC, the late Mr Eamonn Leahy SC and Mr Garrett Simons, barrister.

Mr Allen argued earlier this year that the chairman, when deciding on costs, should take into account the fact that the Baileys were private individuals and their company was a private company.

Judge Mahon said yesterday he had taken into consideration the financial circumstances of each applicant for costs and the effect having to pay his/her own costs would have on the person.

The Baileys are among the biggest and most successful housebuilders in the Dublin area. Their company, Bovale, recorded profits of €55.3 million in the year to July 2003. The chairman said he had given special consideration to certain adverse findings made against the Baileys in tribunal reports. These were:

n Michael Bailey's claim that full co-operation with the tribunal was impossible because of the danger of leaks, when in fact he was responsible for these leaks;

n His false evidence;

n Collusion between the Bailey brothers to give false evidence on their dealings with Mr James Gogarty;

n Mr Thomas Bailey's failure to provide all financial records;

n Ms Caroline Bailey's provision of false information about alleged payments to Mr Gogarty.

The Baileys have started High Court proceedings against the tribunal, in which they argue that Judge Mahon is not empowered to decide on costs. The case is unlikely to be heard for some time.

To Mr Caldwell, who acted as solicitor to builders Brennan and McGowan, the chairman awarded his costs outside those incurred between June and November 2001, as well as 70 per cent of costs associated with his discovery of documents to the tribunal.

Mr Caldwell initially refused to give evidence, forcing the tribunal to take proceedings in the High Court. When these were settled, he attended to give evidence for one day in November 2001.

Judge Mahon said Mr Caldwell's failure to appear as a witness was a "real and substantial" failure to co-operate, but it was fair to award him a portion of his costs. All costs awarded are subject to taxation by the Taxing Master of the High Court.