Tribunal breached rights, court rules

The High Court has declared that the refusal of the planning tribunal to give Cork property developer Mr Owen O'Callaghan access to various statements made by builder Mr Tom Gilmartin breached Mr O'Callaghan's constitutional right to fair procedures and unreasonably hampered his right to cross-examine Mr Gilmartin.

The decision may affect tribunal operations at their investigative stage.

The court disagreed with the tribunal's claim that it was entitled to withhold the documents on grounds they were received confidentially at the tribunal's private investigative stage and that disclosure might inhibit people from giving information.

Mr Justice O'Neill found the breach of rights was "not necessary for the protection of the public interest or justified by any reference to any public interest".

It would be "very damaging" to the public interest if the tribunal withheld disclosure of relevant material when a person affected by the allegations made in the inquiry might need that material to establish the truth and vindicate their good name, he said.

Where a public inquiry takes place, the public interest in the "full, public and untrammelled ventilation of all relevant and admissible evidence" so that the truth can be ascertained and rendered apparent "must supersede any public interest in the use of confidentiality to obtain information in the private investigative stage of the inquiry".

Addressing the tribunal's concern that disclosure at the public stage of an inquiry of material obtained at the private stage would adversely affect its work, the judge said there could hardly be a reasonable expectation of confidentiality regarding material given to the tribunal if that material was clearly relevant to the subject of the inquiry and particularly if it contained serious allegations affecting the good name of another person or was relevant to such allegations.

Looked at in this way, it was difficult to see why much weight should be attached to the public interest in the tribunal's ability to assure confidentiality to attract persons to come forward with information, the judge said. "One must further query whether indeed there is any public interest in the tribunal being available to receive, under a cloak of confidentiality, damaging allegations which potentially affect the good name and perhaps livelihood of persons affected by such allegations."

On foot of those findings, Mr Justice O'Neill yesterday granted a declaration that the tribunal's refusal to disclose to Mr O'Callaghan's lawyers documents made by Mr Gilmartin relevant to the current tribunal module breached Mr O'Callaghan's constitutional right to fair procedures. He also granted an order quashing the tribunal's refusal of access to the documents.

After being told by Mr John Finlay SC that the tribunal intended to appeal his decision, the judge said he would put a stay, pending that appeal, on the declaration and order.

On the application of Mr Paul Sreenan SC, for Mr O'Callaghan, the judge awarded costs to the Cork developer against the tribunal but deferred to next week a decision on who should pay Mr Gilmartin's legal costs in the matter. Mr O'Callaghan initiated the High Court action after the tribunal on March 24th refused to allow his lawyers access to documents which recorded oral and written statements made by Mr Gilmartin to the tribunal.

In his reserved judgment, Mr Justice O'Neill said Mr O'Callaghan's involvement with the tribunal arose from his acquisition, through Barkhill Ltd, of an interest in the Quarryvale site in west Dublin, now the site of the Liffey Valley Shopping Centre.

In 1989, Mr Gilmartin agreed to buy Mr O'Callaghan's interest in the site for £3.5 million. It appeared both men had proceeded to develop the Quarryvale site but had parted company in 1996 with Mr Gilmartin being bought out of the project for £7.76 million. Mr Gilmartin had made allegations to the tribunal regarding those transactions.

In a statement to the tribunal, dated May 25th, 2001, the only allegations made by Mr Gilmartin concerning Mr O'Callaghan suggested that Mr Liam Lawlor TD had advised Mr Gilmartin that it was essential Mr Gilmartin deal with Mr O'Callaghan as Mr O'Callaghan owned lands at Neilstown/Balgaddy. It was also suggested that Mr O'Callaghan was present in Buswell's Hotel when a named councillor had demanded £100,000 of Mr Gilmartin.

The judgment was welcomed by Mr Liam Lawlor who said in a statement it should be "given detailed consideration by members of the Oireachtas and the Minister for the Environment." The former TD said the documents at issue should be made available "to enable all witnesses to defend themselves against allegations".