The High Court rejected John Caldwell’s challenge to the Mahon Tribunal’s inquiry into the Carrickmines II module and related land issues, finding that the Tribunal was entitled to proceed and that Caldwell’s judicial review case was brought outside the time limit. The court did not decide his privacy claim in this judgment and said it would hear further submissions on that issue.
Caldwell, a former practising solicitor and managing partner of Binchys, argued that phases 2 to 8 of the inquiry fell outside the Tribunal’s terms of reference. He also claimed the hearings would unjustifiably interfere with his privacy, that the Tribunal had failed to consider its discretion to discontinue inquiries, and that it was unfair to refuse submissions on that discretion. The Tribunal disputed those claims.
The proceedings concerned the Tribunal’s decision, made in November 2003 and notified to Caldwell’s solicitors on 4 December, to move from private investigation to public hearings. The hearings began in January 2004. The High Court held that the Tribunal’s terms of reference allowed it to investigate acts associated with the planning process that might amount to corruption, and that the amended terms specifically included the Carrickmines II module and related issues.
The judge found a rational basis for examining other land transactions. The Tribunal said evidence about those transactions could help it assess the relationships between Caldwell, businessman James Kennedy and former TD Liam Lawlor, as well as ownership and possible benefit connected with the Carrickmines lands. The judge concluded that Caldwell had not shown the inquiry to be irrational or outside the Tribunal’s authority.
The court also found that the Tribunal was entitled to limit oral submissions on 26 November 2004. Caldwell’s lawyers had been invited to make submissions, but not on how the Tribunal should exercise its discretion to move from private investigation to public hearings. The judge said the relevant decision was the one made in November 2003; later exchanges did not create a new decision.
On the amended terms of reference, the judge said the Tribunal could discontinue private preliminary investigations into individual remaining phases, but that discretion could not be used once public hearings of evidence had begun in a phase. The court was not satisfied that the Tribunal had misunderstood its powers concerning the Coolamber phase.
The judge found the case was late because the grounds arose no later than December 2003, and possibly by July 2004, while the proceedings began in December 2004. No extension of time had been sought. The case therefore failed for delay.
The judgment left the privacy issue open. Because a Supreme Court decision delivered after the hearing raised a question about the application of the European Convention on Human Rights Act 2003, the judge postponed that part of the decision and invited further submissions.