The High Court has rejected Anthony Fox’s challenge to a finding by the Tribunal of Inquiry into Certain Planning Matters and Payments that he failed to co-operate with it by knowingly giving false or misleading evidence.
In a judgment delivered on 24 July 2014, Ms Justice Baker held that the Tribunal’s decision was based on its assessment of Fox’s evidence and conduct, not on its substantive finding that he had received corrupt payments. Fox had sought judicial review of the Tribunal’s decision of 31 October 2013. He also sought a declaration that the finding was outside the Tribunal’s powers, but that ground was not argued.
The Tribunal’s final report, published on 22 March 2012, found that Fox had received improper or corrupt payments from Frank Dunlop. Fox, an elected councillor, had denied receiving payments and gave sworn evidence in ten modules of the inquiry. The judgment records that the Tribunal found payments had been made to him in ten of the eleven modules. Fox did not challenge those substantive findings.
The court explained that the Tribunal’s costs process was separate from its inquiry findings. Under the governing legislation, the Tribunal had to consider whether a person failed to co-operate or knowingly gave false or misleading information when deciding whether there were equitable grounds to award costs. A finding of false evidence alone was not enough: the Tribunal had to consider whether the person knew it was false or misleading.
After inviting written submissions on a proposed non-cooperation finding, the Tribunal deferred its decision until certain criminal matters had been dealt with. In October 2013 it confirmed the proposed finding. It relied on Fox’s repeated, emphatic denials that he had sought or received money from Dunlop, made on matters within his personal knowledge, and concluded that Fox knew the denials were false and misleading.
Baker found that Fox’s evidence was central to the inquiry and that he had been given the opportunity to present his account and respond to other accounts. The Tribunal’s analysis, she said, identified why it disbelieved his evidence and found that he had intended to frustrate or hinder the inquiry. The court distinguished that conduct assessment from the underlying finding that Fox had received corrupt payments.
The court concluded that the Tribunal had not erred by relying on its analysis of Fox’s truthfulness and conduct. It held that Fox was not entitled to the order he sought. The judgment does not state a separate order on costs in the judicial review.