The Supreme Court allowed an appeal by Joseph Murphy, Frank Reynolds and Joseph Murphy Structural Engineers Limited over a tribunal’s refusal to award them costs for their participation in an inquiry into planning matters and payments.
In a judgment delivered on 21 April 2010, Denham J. said the Tribunal of Inquiry was entitled to consider whether parties had co-operated when deciding costs. But it had no authority to find that they had committed obstruction or hindrance in the context of a reference to a criminal offence. The appellants had not challenged the Tribunal’s substantive findings of corruption, which therefore stood.
The appeal concerned the Chairman’s ruling of 9 November 2004 refusing the appellants’ costs. The Chairman relied on findings that they had given false evidence and hindered the Tribunal. He said he would have considered awarding some costs despite the corruption findings if they had fully and honestly co-operated, but refused the application in light of their conduct.
Denham J. said the Tribunal could make findings of non-co-operation, including that a party had failed to give truthful information. However, it could not determine that a person had committed a criminal offence. The Tribunal’s reports had used the terms “obstructed and hindered” after referring to obstruction and hindrance as criminal offences. The judgment held that the Chairman lacked power to make the costs decision in the context and terms used.
The Court also said the appellants had not received notice that obstruction and hindrance would be addressed in the costs ruling, or an opportunity to make submissions on those matters. Denham J. considered this a breach of fair procedures. The judgment further noted that material redacted from interviews with a witness had included serious allegations about other people and would have been material to cross-examination. The Court said the redaction was a cause for concern.
The Court extended time for the appellants’ challenge to findings in the Tribunal’s Second Interim Report, which had been published outside the usual time limit. It found that the challenges concerning the Second and Third Interim Reports were legally identical and that there was no relevant prejudice to the Tribunal.
The order proposed was to allow the appeal, declare that the Tribunal was not entitled to make the obstruction and hindrance findings against the appellants in the Second and Third Interim Reports, and quash the Chairman’s 9 November 2004 costs decision. The judgment did not award costs to the appellants or decide their constitutional challenge to the legislation. It also recorded that the Tribunal had not yet addressed whether to make a costs order against them.