Tribunals are skating on thin ice

The judgment of Adrian Hardiman of the Supreme Court in the case taken by Cork property developer Owen O'Callaghan against the planning tribunal, chaired by Judge Alan Mahon, is of very considerable significance to the future workings of tribunals here and indeed to the work already conducted by the two main tribunals, the Mahon tribunal and the Moriarty tribunal.

First let me acknowledge that, in writing elsewhere about this judgment, I was mistaken in believing that Adrian Hardiman was speaking for a majority on the court. In fact the majority judgment was delivered by Hugh Geoghegan and the other three judges sitting in the case - Chief Justice John Murray, Susan Denham and Nial Fennelly - agreed with Hugh Geoghegan, rather than with Adrian Hardiman. It is relevant to point out, however, that in Hugh Geoghegan's judgment there is the assertion that, while he would prefer to base his opinion on the issues in the case on grounds more limited that those addressed by Adrian Hardiman, "this does no mean that I am necessarily disagreeing with anything said by Hardiman".

All five judges held that the refusal of the Mahon tribunal to divulge documents to Owen O'Callaghan relating to statements made in private to the tribunal by another property developer, Tom Gilmartin, was a breach of Owen O'Callaghan's constitutional rights. That decision on its own is of very considerable importance and challenges the procedures adopted by both the main tribunals in their conduct of their business and their treatment of witnesses. On the basis of that decision, it would be open to those against whom findings have been made and who were refused access to relevant documents to ask the courts to have the findings of tribunals quashed.

But on to Adrian Hardiman's judgment. The most significant aspect of this judgment was his contention that the Act underpinning tribunals requires that the work of tribunals be conducted in public. He asserted that there was a legitimate claim by tribunals to operate in private for the purpose of establishing whether there was a prima-facie basis for conducting inquiries into particular allegations, but that was the sum of it. Such inquiries were to be "a bare minimum". His line of argument suggested tribunals that conduct a significant proportion of their work or, as in the case of both the Mahon and Moriarty tribunals, the vast preponderance of their work in private, were open to challenge.

Now this is only a suggestion, both because Adrian Hardiman was in the minority on the court and also because his remarks on the issue were more in the realm of what is known as obiter dicta, comments made tangential to the issue at stake. But the comments are certainly reflective of his own view and, very probably, that of the courts as a whole, even though the other judges did not feel it necessary for them to go on the record with him. I say this because, in the manner the argument is presented by Adrian Hardiman, it seems persuasive.

If I am right about this - ie, that Hardiman's view on the proper functioning of tribunals would be upheld by a majority of the court were the issue raised explicitly - it seems that the work of the two main tribunals could be severely compromised or, arguably, scuttled.

More than likely this will emerge as an issue in a case soon to open in the High Court taken by JMSE against the findings of the previous chairman of the planning tribunal, Mr Justice Flood. That challenge will also open the way to a challenge to the procedures of the tribunal and the awarding of costs. Part of that challenge will be the finding that Joseph Murphy jnr was present at the fateful meting in the home of Ray Burke in June 1989 when James Gogarty gave Ray Burke £30,000 in cash.

The only person who asserted that was James Gogarty, but every other person involved - Joseph Murphy jnr himself, Michael Bailey and Ray Burke - said it was not so. How a finding could be made that Joseph Murphy jnr was present in the face of the countervailing evidence and in the absence of any corroboration has never been clear. The tribunal might reasonably have found that it could not decide on the issue (which, in any event was of no consequence). But to have found definitely on the basis of one person's evidence, especially when that person's evidence was found to have been mistaken on other related matters (eg, that a total of £80,000 was handed to Ray Burke that day) is stretching it. And so the courts may find.

There was a time when the courts were very reluctant to interfere with the work of tribunals and indeed Hugh Geoghegan in his judgment, supported by the other three judges, said "the courts should not lightly interfere [ with the work of tribunals]". But the intervention in relation to provision of documents itself shows a willingness to ensure that fair procedures are adhered to by tribunals. Adrian Hardiman's judgment opens further prospects of court intervention in a way that, for all the tribunals, could be profound.