The High Court has allowed George Redmond’s challenge to the Mahon Tribunal’s refusal to award him costs to proceed, while dismissing his separate challenge to the tribunal’s substantive findings against him.
In a judgment delivered on 28 March 2012, Mr Justice Gilligan ruled on a motion by four tribunal defendants to dismiss Mr Redmond’s action for delay. The court did not decide the merits of either challenge. The State defendants had brought a similar motion, but the proceedings against them were struck out by agreement, without an order, during the hearing.
Mr Redmond’s plenary action, issued in April 2005, sought relief concerning both the tribunal’s findings and its refusal of costs. The tribunal had refused his costs application in October 2004, referring to findings that he had hindered and obstructed its work and to findings of corruption. The substantive findings were set out in the tribunal’s second and third interim reports.
The tribunal defendants argued that Mr Redmond had delayed excessively and without excuse, leaving them prejudiced and unaware of the case they had to meet. They also argued that the challenge to the substantive findings was, in effect, a judicial review brought outside the applicable time limit. Mr Redmond’s lawyers relied on the difficulties he faced, including limited resources and criminal proceedings, and argued that the balance of justice favoured allowing the action to continue. They also pointed to the Supreme Court’s 2010 decision in Murphy v Flood, which concerned the same tribunal and its treatment of costs and disclosure.
Mr Justice Gilligan found that the delay in prosecuting both parts of the action was inordinate and inexcusable. He nevertheless treated the two challenges separately. The costs challenge had been brought within the relevant time limit, raised a legal issue addressed by the Supreme Court in Murphy v Flood, and the tribunal defendants had not shown that allowing it to proceed would be unfair to them. The motion to dismiss that part of the action therefore failed.
The challenge to the substantive findings had been brought about 15 months after their publication, outside the applicable time limit, and had then remained unadvanced for years. The judge said the passage of time, the death of a key witness, the retirement of the tribunal’s former chairman and the nature of the issues created a substantial risk that a fair trial within a reasonable time was no longer possible. He dismissed that part of the claim.
The court’s order was limited: the costs challenge remains, while the claim concerning the substantive findings in the second and third interim reports was dismissed.