The High Court has found against John Caldwell on his claim that continuing public inquiries into the Carrickmines II Module breached his constitutional right to privacy. Mr Justice Hanna held that the common good outweighed any privacy right Caldwell had in his business affairs in the context of the Tribunal of Inquiry.
The judgment, delivered on 15 February 2006, supplements a ruling handed down on 28 June 2005. Hanna said the issue left open was whether the Tribunal’s continuing inquiries unjustifiably interfered with Caldwell’s privacy. He did not revisit his earlier findings on Order 84 of the Rules of the Superior Courts; his decision on that point stood.
The court had previously identified the challenged decision as the Tribunal’s November 2003 move from private inquiries to public hearings. Because the European Convention on Human Rights Act 2003 did not apply retrospectively to that decision, the parties accepted that it was not governed by the Act. Hanna treated later events in 2004 as reiterations of the 2003 decision, rather than new decisions.
Caldwell argued that the inquiries could disclose confidential business affairs and require him to attend public hearings unnecessarily. The judgment’s account of the background says Caldwell claimed to own half of the Carrickmines lands through a limited liability company, Jackson Way Properties, and that James Kennedy was the other half-owner. Caldwell denied that former TD Liam Lawlor had any interest in the lands. The judgment also recounts allegations made by Frank Dunlop about cash and rezoning; these are allegations described in the judgment, not findings in this ruling.
Hanna proceeded on the basis that business affairs could attract a constitutional privacy right, while describing such protection as distant from privacy’s intimate core. He held that the public interest in the Tribunal’s fact-finding work outweighed Caldwell’s privacy claim in these circumstances. He also noted that details of Caldwell’s business affairs had already entered the public domain through the Tribunal counsel’s opening statement on 20 January 2004.
On the Convention question, Hanna noted that the Act did not govern the November 2003 decision. He nevertheless set out a hypothetical view: if the Convention had applied and Caldwell had a protected right that was compromised, he would have considered the interference lawful, necessary in a democratic society, responsive to a pressing social need and proportionate. He said he would have refused the relief sought. The court’s operative privacy conclusion was that it found against Caldwell on that issue.