The Supreme Court has allowed an appeal by Joseph Murphy, Frank Reynolds and Joseph Murphy Structural Engineers Limited over costs arising from their participation in the Planning Tribunal. It declared that the tribunal was not entitled to make findings that the appellants had hindered or obstructed its work, and quashed its November 2004 decision refusing their applications for costs. The court did not itself award costs; the applications must be reconsidered.
The appeal concerned findings in the tribunal’s Second and Third Interim Reports. Those reports found that Mr Murphy had made corrupt payments to Ray Burke and George Redmond. The appellants did not challenge those substantive findings in these proceedings. The tribunal also found that Mr Murphy and Mr Reynolds had hindered and obstructed its work, principally through evidence it considered untruthful.
Writing for the court, Mr Justice Fennelly held that the tribunal’s statutory costs power did not authorise it to investigate obstruction and hindering as a separate matter in the way it had. The reports used language from a statutory provision creating a criminal offence, distinguished obstruction from failure to co-operate, and appeared to treat rejection of evidence on the underlying allegations as automatically establishing obstruction. The appellants had not received advance notice that such findings were being considered. The court held that people facing findings of that character should receive reasonable advance notice.
The tribunal chairman had relied on both the corruption findings and the obstruction findings when refusing costs. The Supreme Court held that the obstruction findings were invalid and could not lawfully be taken into account. As they were a major reason for the decision, the costs refusal had to be quashed.
The court also addressed whether substantive findings of corruption could be considered in deciding costs. It held they could not. Interpreting the costs provision in light of the Supreme Court’s earlier decision in Goodman v Hamilton, the court said the tribunal could consider conduct at or in connection with the inquiry, but not its substantive findings on the matters under investigation. The judgment did not determine what costs the appellants should receive.
The court extended the time to challenge the Second Interim Report, despite the delay, because the two reports and the combined costs decision were closely linked. It allowed the appeal and ordered certiorari quashing the tribunal’s 9 November 2004 costs decision.