The Supreme Court has allowed an appeal by Owen O’Callaghan, John Deane, Riga Limited and Barkhill Limited, finding a reasonable apprehension that the existing members of the Tribunal of Inquiry into Certain Planning Matters and Payments had prejudged issues involving the applicants.
The appeal concerned material the tribunal had withheld from O’Callaghan and others during its inquiry into planning matters. The material included earlier accounts by Tom Gilmartin that contradicted, or differed from, allegations he later made in public hearings. The Supreme Court had previously ordered disclosure after finding that the tribunal’s refusal to provide documents for cross-examination breached fair procedures.
In the present appeal, the applicants argued that the contents of the disclosed material, and the tribunal’s decisions to withhold it, gave rise to a reasonable apprehension of prejudgment. The tribunal accepted that its earlier approach to disclosure was wrong, but argued that the error was bona fide and that the applicants could now use the material to cross-examine Gilmartin.
Delivering judgment on 30 March 2007, Mr Justice Hardiman examined examples of the withheld material, including earlier accounts concerning a 1989 contract, a meeting at Buswells Hotel and events at Leinster House. He concluded that the material had clear potential to test Gilmartin’s credibility and that the tribunal had decided it was irrelevant or insufficiently inconsistent without hearing the applicants’ side. He said the resulting apprehension of prejudgment did not depend on any finding of ill will by the tribunal members.
The judgment also rejected the tribunal’s arguments that the proceedings were premature or that necessity required the existing members to continue. The relief was limited to the tribunal’s composition: Hardiman J said the ruling did not prevent further investigation of the applicants, but the current members could not continue to adjudicate on allegations involving them. He concluded by allowing the appeal and granting appropriate relief. The judgment does not record the precise form of that relief or a final determination of the underlying allegations.