Hardiman J. of the Supreme Court would quash the Flood Tribunal’s 2004 decision refusing costs to Joseph Murphy, Frank Reynolds and Joseph Murphy Structural Engineers Limited, concluding that the Tribunal acted outside its remit when it found that members of the Murphy interests had obstructed and hindered its work.
The judgment, delivered on 21 April 2010, addressed a judicial review challenge to the costs decision. The appellants did not ask the Court to overturn the Tribunal’s substantive findings against them, and Hardiman J. said he would not interfere with those findings. His judgment dealt with costs and the related findings of obstruction and hindrance; it also left unresolved a separate constitutional challenge to the costs legislation.
The Tribunal had found the Murphy interests involved in corrupt payments and had said that some had obstructed and hindered its work. Its new chairman relied on those findings in refusing the appellants’ application for costs on 9 November 2004. The appellants had been required to participate in 163 sitting days and provide extensive discovery, according to the judgment.
Hardiman J. said the phrase “obstructed and hindered” was also used in legislation to define a criminal offence. The Tribunal’s terms of reference did not empower it to investigate that offence, he concluded. For costs purposes, it could consider whether parties had failed to cooperate. The judge said the Tribunal’s specific findings went further than necessary and were outside its powers.
He also found procedural defects. The appellants had not been given notice that the Tribunal was considering an obstruction and hindrance finding. In addition, material concerning allegations made by principal witness James Gogarty had been redacted from transcripts and withheld. Tribunal counsel accepted on appeal that the material should have been disclosed. Hardiman J. considered it relevant to Gogarty’s credibility and to the fairness of the process leading to the obstruction and hindrance findings. The judgment did not determine whether the separate allegations Gogarty reportedly made about third parties were true; it said there was no reason to believe them and presumed them false.
Hardiman J. also concluded that the costs refusal relied partly on the Tribunal’s substantive findings, contrary to the approach to costs set out in the Supreme Court’s earlier Goodman decision. Because the ruling did not specify what portion of the costs related to each basis, he said it could not be severed.
He would therefore quash the refusal of costs on the grounds that the obstruction and hindrance findings were outside the Tribunal’s remit and that the process was procedurally defective. This was Hardiman J.’s judgment in the Supreme Court; the source provided does not state the Court’s final order. He did not decide whether section 6 of the 1979 Act, as amended, was unconstitutional, saying that question was unnecessary to resolve the appeal.