The High Court has quashed a tribunal finding that publican Charles Chawke knowingly gave false or misleading evidence and failed to co-operate with the Tribunal of Inquiry into Certain Planning Matters and Payments. The court ruled that the process leading to the finding breached fair procedures.
The judgment, delivered by Ms Justice Baker on 24 July 2014, concerns the tribunal’s second-stage process on co-operation and costs. The finding challenged was made on 29 January 2013, after the tribunal had published its substantive report. The court set it aside; it did not revisit or quash the tribunal’s earlier findings about whether money was paid to Bertie Ahern.
In the tribunal’s Quarryvale II module, Mr Chawke said he had contributed IR£2,500 towards Mr Ahern’s legal bills and that the money was later repaid. The tribunal’s March 2012 report rejected that account and found that no payment had been made. It later concluded that Mr Chawke had known his evidence was untrue and had not co-operated.
Mr Chawke argued that, before the report, nothing had alerted him that the tribunal might reject his account. He said he would have acted differently, including considering representation and asking questions of other witnesses, had he known his evidence was in doubt. The respondents argued that he had been given an opportunity to make submissions before the non-co-operation finding and that the case was an attempt to challenge the substantive report after the time to do so had passed.
Justice Baker accepted that Mr Chawke was entitled to challenge the separate second-stage decision and was in time. She found that, as a witness, he had not been entitled to fair procedures during the tribunal hearings themselves. But once the tribunal considered a finding of knowing untruth and non-co-operation, with possible consequences for his reputation and costs, fairness required a reasonable opportunity to address the case against him.
The tribunal had invited written submissions after the final report. The judge held that this opportunity was inadequate in the circumstances: the non-co-operation finding followed deductively from the tribunal’s prior conclusion that no payment had been made. By then, Mr Chawke’s submissions could not change the premise or how his evidence was characterised. The judge said the tribunal should have given notice in time for him to engage with the issue before the report was finalised.
The tribunal had proposed awarding Mr Chawke 30% of his costs, but that remained a proposed decision. The High Court did not determine that costs question. Its order was limited to quashing the 29 January 2013 non-co-operation decision for breach of fair procedures.