The Supreme Court has allowed John Caldwell’s appeal over the Mahon Tribunal’s refusal to hear submissions on whether it should continue public inquiries into Phases 2 to 8 of its Carrickmines II and Related Issues Module.
In a judgment delivered by Macken J on 9 June 2011, the Court held that the Tribunal was wrong in law to refuse outright to consider submissions about exercising its discretion under amended terms of reference. The decision to continue particular inquiries could affect Caldwell’s interests, and he was entitled to make representations on the relevant criteria, at least in some form. The Tribunal could have limited submissions, including to written submissions of limited length.
The Tribunal had said its discretion was solely for it to exercise because it alone had access to the relevant information and documentation. It also raised the prospect that many people might seek to make submissions. The Court found neither reason justified refusing Caldwell a hearing. It distinguished the case from Redmond v Flood: that case concerned whether evidence was sufficient to warrant moving to public hearings, while this appeal concerned whether to continue particular investigations under criteria including likely duration, cost and probative value.
The Court said the appeal’s underlying subject matter had become moot because the Tribunal had already concluded the relevant oral hearings. Caldwell’s appeal nevertheless required consideration because he also sought to set aside the High Court costs order. The Court found that the High Court had wrongly rejected his fair procedures challenge.
The Court did not allow the appeal on the ultra vires ground. Although it said the High Court’s reasoning on the Tribunal’s powers was wrong, the amended terms of reference specifically covered the Carrickmines II Module and Phases 2 to 8, so the Tribunal could proceed with those inquiries.
The Court also rejected the Tribunal’s delay argument. The judicial review application followed within weeks of the late-November 2004 Oireachtas resolutions and the Minister’s December order amending the terms of reference, on which the fair procedures and vires issues materially depended. It was therefore within time and brought promptly.
The Court allowed the appeal and set aside the High Court judgment and order. The judgment does not state a separate costs order by the Supreme Court.