Notice Board

JUDICIAL REVIEW PROCEEDINGS INSTITUTED BY MR. JOSEPH MURPHY (RECENTLY RESOLVED)

1. Mr. Murphy instituted Judicial Review proceedings in the High Court against the Tribunal on the 10th May 2016 seeking, inter alia, Orders of Certiorari quashing certain findings relating to himself, as were contained in the 2002 Second and Third Interim Reports of the then Sole Member of the Tribunal, Mr. Justice Flood, on the grounds that certain statements made to the Tribunal by Mr. Gogarty in the period 1999 to 2001 were either not disclosed to him, or disclosed in partly redacted format. The practice of withholding such statements in whole or in part was successfully challenged in 2005 by Mr. Owen O’Callaghan in proceedings taken by him against the Tribunal.

2. Since the decision in the O’Callaghan case the said practice in relation to the provision of documentation was discontinued by the Tribunal, and its inquiries post 2002. In particular, the Tribunal’s inquiries relevant to its 2012 Final Report were fully compliant with the decision of the Supreme Court in O’Callaghan. It was not legally possible to reopen those parts of the Tribunal’s pre-2002 inquiries affected by the O’Callaghan decision for the purposes of recalling witnesses following upon such statements (or parts thereof) being made available to affected parties. In particular, Mr. Justice Flood had, alone, heard evidence from the relevant witnesses and he had retired in 2003. Also, Mr. Gogarty died in 2005.

3. Consequently, the Tribunal on 18th September, 2015 invited Mr. Murphy (in addition to other affected parties) to make written submissions to it in relation to any parts of the 2002 Second and Third Interim Reports which they believed ought to be removed in the interests of natural justice. Submissions were duly made by a number of parties, including Mr. Murphy. In March 2016, and prior to the institution of the Murphy proceedings, the Tribunal removed parts of the Second and Third Interim Reports and posted amended versions of those Reports on its website (where they remain for viewing). It also advised the Clerk of the Dáil as to the alterations in the Second and Third Interim Reports.

4. While the Tribunal accepted entirely the decisions of the Superior Courts in the O’Callaghan case and immediately altered its procedures importantly, it is important to stress the fact that Mr. Justice Flood in adopting and following these procedures in relation to the inquiries relevant to his 2002 Second and Third Interim Reports did so in good faith and in the honest belief that such procedures were legally sound.

5. The Tribunal has taken comprehensive steps to remove from Mr. Justice Flood’s Second and Third Interim Reports parts thereof, including some adverse findings in order to ensure that parties / witnesses who did not receive certain documentation from the Tribunal to which they were entitled (in the period 1998 to 2002) are not disadvantaged or remain the subject of legally unsound findings. The versions of the Second and Third Interim Reports on the Tribunal’s website are the result of this now completed review process.

EXPLANATORY STATEMENT MARCH 2016

The Tribunal has made alterations to its Second and Third Interim Reports (published respectively in 2002 and 2004) by removing certain parts of the Reports, including certain findings.  The Reports as so revised are available for viewing and downloading on this website.

What are the Second and Third Interim Reports?

Both Reports were prepared and written in 2002 by the then Sole Member, Mr. Justice Flood.  Originally, both were prepared and written as one Report.  However, because of a then pending criminal prosecution by the DPP of Mr. George Redmond, Mr. Justice Flood decided to divide his Report into two reports.  The larger part became the Second Interim Report and was published in September 2002, and the smaller part, relating to Mr George Redmond, became the Third Interim Report and was published in 2004 after the criminal proceedings involving Mr. Redmond had been concluded. 

Why are parts of the Second and Third Interim Reports being removed?

In the course of the inquiries undertaken by Mr. Justice Flood between 1998 and 2002, culminating in the public hearings of the Tribunal during this period, which in turn formed the evidential basis on which the Second and Third Interim Reports were prepared, written and published, certain prior statements of witnesses were not circulated, or were circulated in partly redacted format, to interested parties.  The decision to proceed in this manner was taken by Mr. Justice Flood in good faith and in circumstances where he believed that doing so was legally sound and was in the interests of conducting the complex inquiries then underway in as efficient a manner as was possible. While the Sole Member independently made this decision, he sought and received legal advice beforehand in relation thereto.

This decision by Mr. Justice Flood was not legally challenged by any of the parties referred to in the Second and Third Interim Reports either before, or in the years immediately following their publication.

The aforesaid practice continued in relation to the post October 2002 public hearings, until 2005 when it was successfully legally challenged by Mr. Owen O’Callaghan in respect of the Tribunal’s inquiries then underway, specifically in relation to prior statements made by Mr. Tom Gilmartin.  The prior statements in question were then released in full to interested parties, and the opportunity to recall and re-examine witnesses was offered to all those concerned.  It is therefore the case that the Tribunal’s inquiries post September 2002 have been conducted in full compliance with the Supreme Court decision in the O’Callaghan case. 

In relation to parties from whom such prior statements were (in whole or in part) withheld, the Tribunal has, having considered written submissions from those parties, removed parts of the Second and Third Interim Reports (including some findings). 

In 2010 Joseph Murphy, Frank Reynolds and Joseph Murphy Structural Engineers Limited successfully legally challenged Mr. Justice Flood’s findings of hindrance and obstruction made against them in his Reports, and the related refusal of the payment of all or some of their costs.  In respect of these parties, and the other parties against whom hindrance and obstruction findings were made by Mr. Justice Flood, such findings have been withdrawn, and, where appropriate, costs Orders have been revised.

Have the decisions in the O’Callaghan and Murphy cases been applied to affected parties other than those involved in those legal challenges?

Yes, the benefits of the Superior Court decisions in both the O’Callaghan and Murphy cases have been extended to all witnesses involved with the Tribunal.

Consequently:

(1)   All adverse findings have been removed in relation to Oliver Conlon, Jack Foley, Oliver Barry, James Stafford, John Mulhern, Joseph Murphy Snr, Joseph Murphy Jnr, Frank Reynolds, Thomas Bailey, Michael Bailey and Caroline Bailey.

(2)   Adverse findings remain in relation to Ray Burke, Tom Brennan, Joseph McGowan, John Finnegan, Tim O’Keeffe, Roger Copsey and John Bates.

(3)   In relation to George Redmond, adverse findings in the Third Interim Report have been removed, but a finding of corruption made against him in the Fifth and Final Report remains. (see below)

Is the Tribunal’s Final Report affected?

No.  The Tribunal’s Final Report, published in 2012, is unaffected by these changes or the reasons for them (save for certain passing references to deleted findings in the Second and Third Interim Reports, which have been removed).  With the exception of Mr. George Redmond there are no adverse findings in the Final Report which relate to those parties in respect of whom adverse findings have been removed from the Second and Third Interim Reports.  In the case of Mr. Redmond the finding of corruption made against him in the Final Report (at Chapter 2, Vol. 1, Paragraph 10-12 to 10-14) remains valid and subsisting.  The Final Report (and accompanying Recommendations) remains available to view and to download on this website.

Why has there been a delay in the conclusion of the process of amending the Second and Third Interim Reports?

The impugned practice of withholding all or parts of prior statements ceased in the aftermath of the O’Callaghan Supreme Court decision in late 2005 in respect of the Tribunal’s inquiries then underway, hence no relevant issues arise in relation to the Tribunal’s Final Report published in 2012. 

By 2005, Mr. Justice Flood had  retired from the Tribunal. (He retired in mid-2003).  The then (and current) Members of the Tribunal had no role in the inquiries conducted in relation to the Second and Third Interim Reports or in the writing of the Reports, and it was (and remains) their belief that no option existed for them to legally reopen those inquiries.  Furthermore, the principle witness whose prior statements were affected by the O’Callaghan decision, namely Mr. James Gogarty, died in 2005 and was no longer available for re-examination.

In 2004 Mr. George Redmond instituted proceedings seeking, inter alia, to quash certain findings made against him in the Second and Third Interim Reports.  The Tribunal successfully contested that case (on the grounds of delay) in the High Court.  Mr. Redmond appealed to the Supreme Court.  In 2014, during the course of the hearing of that appeal the Tribunal agreed that certain references in the Third Interim Report would be deleted.

Since then (and indeed since 2010/2011 in relation to the impugned hindrance and obstruction findings and related costs decisions) the Tribunal has been engaged in a process which has culminated in the removal of parts of the Second and Third Interim Reports.  That process has proved difficult and cumbersome and involved the opportunity to affected parties to make detailed written submissions.  Most, but not all, of the affected parties have extensively engaged with the Tribunal in this process and this engagement has proved time consuming.   The Tribunal has endeavoured to conduct the process of reviewing the Second and Third Interim Reports in a fair, comprehensive and expeditious manner having regard to the complexity of the issues, and its own reduced resources.  (The Tribunal’s staff numbers reduced to minimum levels in the aftermath of the publication of the Tribunal’s Final Report, and its Members have also since returned to full-time Court work in the intervening period).

What about the Tribunal’s estimate of its overall costs at approximately €159m?

The Tribunal’s 2012 estimate of its overall costs being in the region of €159m has not been altered.  That figure was calculated on the basis that all parties involved in the Tribunal’s inquiries since its establishment in November 1997 would receive their costs, subject to (unless agreed) taxation by a Taxing Master of the High Court.

25th March 2016

The Tribunal is concerned that some recent media reports have provided information relating to the Tribunal which is inaccurate or incomplete. The purpose of this information statement is to ensure that correct information is made available.

Statement of the Planning Tribunal:
1.    The Tribunal was established in late 1997, and commenced public
hearings in 1998. Mr. Justice Feargus Flood was appointed Sole
Member of the Tribunal in 1997 and remained as such until
September 2002, whereupon the Tribunal was reconstituted
to incorporate three Members. Mr. Justice Flood was the
Chairperson of the reconstituted Tribunal until his retirement
in June 2003, whereupon Mr. Justice Alan Mahon was appointed
Chairperson. Judges Mahon, Faherty and Keys comprised the
membership of the tribunal from 2003 onwards.

2.    Mr. Justice Flood, as Sole Member of the Tribunal, completed

public hearings into a number of modules of inquiry in late 2001.

He published his Report in September 2002, known as the 2nd

Interim Report (a section of that Report was withheld from

publication at the time because of pending criminal proceedings

against Mr. George Redmond, and was released in 2003, as

the 3rd Interim Report).

3.    Between 1997 and 2002 Mr. Justice Flood conducted his
investigations in accordance with procedures and practices
which he believed and understood were fair, appropriate
and in compliance with legislation and relevant decisions
of the Superior Courts, and did so with the benefit of legal
advice, both internal and external. One such practice
involved the redacting of some information in witness’
statements. This was done in an effort to confine lines
of inquiry to those relevant to the Tribunal’s Terms of
Reference and in the interests of the efficient investigation
of lengthy and complex investigations, and to avoid
revealing the identities of individuals who were not
immediately involved in the Tribunal’s inquires.
4.    New modules of inquiry commenced in late 2002,
and continued until late 2008. The current Chairperson
and Members of the Tribunal presided during this
period (as did Mr. Justice Flood until his retirement in
mid 2003).
5.    The same practice of redacting what was believed to be
irrelevant material was continued post 2002, until 2005 so that
portions of statements and records of telephone conversations
by the late Mr. Tom Gilmartin were redacted in the same way as
statements of the late Mr. Gogarty had been earlier. This practice was
legally challenged by Mr. Owen O’Callaghan, and in a decision of the
Supreme Court in March 2005, the Tribunal was directed to release Mr.
Gilmartin’s statements in their entirety (with some minor redactions
permitted by the High Court in July 2005) to Mr. O’Callaghan on the
basis that Mr. O’Callaghan, as an individual who was facing allegations
of wrongdoing by Mr. Gilmartin, should be entitled to use their content to
test Mr. Gilmartin’s credibility.
6.    Having regard to that decision of the Supreme Court, the Tribunal, over
a  number of months, took steps to ensure that Mr. O’Callaghan and all
other witnesses henceforth received full and un-redacted copies of
witness’ statements. Essentially the only statements captured by
the Supreme Court decision in the then current module of inquiry were
those of Mr. Gilmartin.  The tribunal however adopted the principle of
that decision and altered its procedures in relation to its inquiries
from 2002 onwards. All affected parties were provided with the
opportunity to recall or re-examine Mr. Gilmartin if they so wished
in order to question him in relation to previously redacted portions
of his statements.
7.    The current Tribunal did not at that time (i.e. late 2005) consider
Mr. Gogarty’s statements or revisit the modules of inquiry which had
been conducted by Mr.Justice Flood prior to his 2nd and 3rd Interim
Report, as it did not believe that it was required to do so, nor was it
legally entitled to reopen modules of inquiry which had been
conducted solely by Mr Justice Flood in the years prior to the
appointment of the current Tribunal.  Had the current Members of
the Tribunal decided to reopen modules of inquiry in which they
had had no role there would have not been an opportunity for
affected parties to re-examine Mr. Gogarty, as Mr. Gogarty was
by then seriously ill and died in October 2005. The Tribunal
proceeded to act upon the decision of the Supreme Court,
only in relation to its then current inquiries.
8.    In the case of Murphy –v-  Flood  [2010] the Supreme
Court quashed the non-cooperation findings of hindrance
and obstruction made by Mr. Justice Flood in his 2nd
Interim Report against the Murphy interests, and quashed
the subsequent 2004 costs orders refusing them their
costs, which had been made arising from the hindrance
and obstruction findings. The Tribunal has now applied
the benefit of that decision to a number of parties including
Mr. George Redmond, Mr. Ray Burke, Mr Oliver Barry, Mr
James Stafford, Mr Thomas Brennan, Mr Joseph McGowan,
Mr John Finnegan, and the Bailey Interests.  Those parties
are now deemed entitled to costs which had previously been
refused, and which they would have been entitled to in the
absence of such hindrance and obstruction findings.
9.    The Tribunal has also moved to withdraw adverse findings,
based on the evidence of Mr. Gogarty, made by Mr. Justice
Flood in his 2nd and 3rd Interim Reports against a number
of parties including Mr Ray Burke, Mr George Redmond, the
JMSE Interests and the Bailey Interests.It is not the case that Mr.
Justice Flood’s 2nd and 3rd Interim Reports have been
withdrawn in their entirety.
10.The current Tribunal Members published their Final
Report and Recommendations in late March 2012
following 589 days of public hearings conducted by
them since October 2002, and including the evidence
of 427 witnesses. Nothing in that report is affected by
the O’Callaghan or Murphy decisions and none of its
adverse findings have been withdrawn or altered as a
consequence of those decisions.   One party, Mr. Owen
O’Callaghan, has legally challenged certain adverse
findings made against him. That challenge failed in the
High Court, and has been appealed by Mr. O’Callaghan
to the Court of Appeal.
11.Arising from the Tribunal’s Final Report, some 305
costs orders have been made to date. 4 await completion. 
Of the orders made approximately 24 are orders for
reduced costs on foot of findings of non-cooperation
made as part of a separate process subsequent to the
publication of the Final Report.   Of this number, one
individual has successfully legally challenged his award
of reduced costs and another has unsuccessfully legally
challenged his award of reduced costs.  Furthermore no
party referred to in the Final Report has been refused his
or her entire costs, and the vast majority of parties have
been awarded their full costs.
12.The total cost of the Tribunal has been estimated
(in 2014) by the Tribunal at €159m. This figure was
calculated on the basis that all parties received all
their costs, as did previous estimates provided by the
Tribunal. The recent revision of costs orders will not
therefore increase this estimate.
26th January 2015

RECENT MEDIA REPORTS REGARDING THE TRIBUNAL’S COSTS

Some recent media reports have speculated that the Tribunal’s estimate of its total costs (€159m) incurred between its establishment and the completion of its work which figure is inclusive of its estimate of total outstanding Third Party costs of € 48.5 million ( both as of May 2014 ) ,are  no longer accurate as a consequence of the outcome of the legal challenge taken by Mr. George Redmond to the 2002 Report of the Tribunal’s then Sole Member, Mr. Justice Flood, and the associated costs decisions arising therefrom.  Such speculation is incorrect. 

 

The Tribunal’s estimate of outstanding Third Party costs in the amount of € 48.5 million  was provided to the Department of the Environment in May 2014.   This estimate was based on the assumption that all third parties (including Mr. Redmond) received their full costs, following (where appropriate) an adjudication of those costs by the Taxing Master of the High Court.  The recent Redmond case decision does not alter this estimate of € 48.5 million  nor the estimate of € 159 million in relation to the total cost of the Tribunal since its inception. 

 

The Tribunal’s estimates are based  on actual costs paid, or likely to be paid, and not amounts claimed for costs. It has been the experience of the Tribunal that in very many cases, third party claims for costs have been grossly exaggerated and bear little relevance to the costs actually paid or likely to be paid following negotiation and /or the Taxation process.

The Final Report of the Tribunal Vol. V – Carrickmines Module is now available for download. To download the report please click here

The Final Report of the Tribunal is now available for download. To download the report please click here

Notice : The Final Report of the Tribunal is now available in hard copy from Government Publication Sales Office, Molesworth Street, Dublin 2. Tel 01-6476879 – Cost: €25

CORRECTIONS – RE : MAHON TRIBUNAL FINAL REPORT

  1. On page lvi of the table of content and on page 2502 Chapter seventeen, of the Tribunal’s final report,  Mr Conor Haughey’s name is mistakenly stated instead of Mr Ciaran Haughey.  Mr Conor Haughey had no involvement with the Tribunal inquiries. The Tribunal has unreservedly  apologised to Mr Conor Haughey for this error. The error was corrected at 2:30pm on Friday the 23rd March, 2012.
  2. On page 2504 of the Tribunal’s final report (Chapter Seventeen), Mr Niall Kenny is mistakenly referred to as Mr Michael Kenny. This error has been notified to the Tribunal by Mr Niall Kenny’s Solicitors on 24 April 2012.
  3. Correction of error in the Tribunal’s Final Report relating to Mr. Des Richardson:
  • In the course of the Tribunal’s public hearings in the Quarryvale Module, Mr. Richardson (together with others) was questioned extensively in relation to a payment of IR£5,000 to Mr. Bertie Ahern in late December 1993 and, in that context, the operation by Mr. Richardson of a bank account held in the name of Roevin Ireland Limited (Roevin).
  • In its Final Report the Tribunal made a number of findings relating to Mr. Richardson and the operation of the Roevin bank account, (at Paragraphs 4.162 to 4.167, Chapter Two, Part 10). Paragraph 4.162 erroneously indicated that Mr. Richardson has claimed not to have knowledge of the origin of IR£39,000 which opened the Roevn bank account in October, 1992. In fact, in the course of the extensive questioning of Mr. Richardson in relation to the operation of the Roevin bank account, he was not specifically questioned as to the source of the said IR£39,000. Therefore, all such reference to the said IR£39,000 in the Final Report, including any criticism of Mr. Richardson for failing to identify the origin of this sum are withdrawn.

CORRECTIONS – RE : MAHON TRIBUNAL FINAL REPORT – CHAPTER 19 – CARRICKMINES

  1. Please note the following amendment on page 137, paragraph 25.05 of the Tribunal’s final report (Chapter Nineteen – Carrickmines),

The sentence;

“He told the Tribunal that the only landowner that he ever met while in Dun Laoghaire/ Rathdown County Council was Mr O’Halloran.”

is replaced by;

“He told the Tribunal that the only landowner that he ever met in the context of the County Development Plan while in Dun Laoghaire/ Rathdown County Council was Mr O’Halloran.”

Tribunal Statement 7th March 2012

The Tribunal has recently received a number of media queries relating to the use of electronic video/audio recording of evidence given by witnesses in the course of its public hearings. The purpose of this statement is to deal with such queries.
1.       Evidence at public hearings has been electronically video/audio recorded since 2002 for internal use only. Such electronic recording has proved useful on a number of occasions in correcting errors in the stenographically recorded transcripts of evidence. A number of such errors were corrected at the request of witnesses.
2.       References were occasionally made to such electronic recording in the course of the public hearings. Furthermore the camera recording the witnesses giving evidence was clearly visible at all times.
3.       These electronic recordings have never been shown or released to any third party, and will not be in the future.

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