ANALYSIS:The decision will add millions to the already enormous expense of the planning tribunal, writes PAUL CULLEN
THE SUPREME Court’s decision on the planning tribunal’s attempt to withhold costs from two witnesses is a severe blow to the credibility of the inquiry as it prepares to deliver a final report in the coming months.
Coming after the recent revelations at the Moriarty tribunal, where the chairman has admitted making significant errors, it also amounts to another dent in the already battered image of the tribunal system.
The judgment of the three- person court, which was unanimous, is also a personal blow for the tribunal chairman, Judge Alan Mahon, who presided over the system for awarding and, in some cases, not awarding costs, and for the former chairman, Mr Justice Feargus Flood, whose actions in redacting or removing material from the transcripts attract particular criticism.
The decision will add millions to the already enormous expense of the planning tribunal, which is expected to cost at least €300 million, in the first place because the two successful appellants, Joseph Murphy jnr and Frank Reynolds, will now be paid their substantial costs from the public purse.
Lawyers representing both men and their companies were at the tribunal for 163 days of hearings and they themselves gave evidence for about 35 days, plus an additional 14 days when the inquiry packed itself off to Guernsey to take evidence on commission from Murphy’s father, also Joseph, who was too infirm to travel (he has since died).
On top of this, the tribunal spent a leisurely four days reading the Guernsey evidence into the record back in Dublin in an empty tribunal hall in Dublin Castle.
On this basis, it can be fairly estimated that the Murphy costs will run into tens of millions of euro rather than mere millions. No estimate has been submitted to the tribunal, but as Ms Justice Susan Denham remarks, they are likely to be “very substantial”.
There is also the possibility that others who had their costs withheld might seek now to have their decisions overturned in the light of this judgment.
So far, the inquiry has ruled that 20 witness have hindered or obstructed its work or failed to co-operate. Both Murphy and Reynolds were found to have been involved in corrupt payments and to have lied to the tribunal – findings which still stand, despite yesterday’s judgment – and yet they are now to receive their costs.
If involvement in corruption is no bar to getting costs, then why shouldn’t the likes of Ray Burke or George Redmond get their costs too? After all, it was only because the Murphy pockets are so deep – Joseph Murphy snr made millions in construction in the UK in the 1950s – that the two men were able to challenge the ruling on costs made by the tribunal as far back as November 2004.
Essentially, the Supreme Court judges have ruled that the tribunal has no authority to determine that any person has hindered or obstructed its work, because this is a criminal offence. It is up to the courts to decide such a matter.
It can, however, rule on co-operation or the lack of it – indeed, it has – because this does not involve a criminal offence. The inquiry is also faulted for failing to give the parties notice that it was considering such a finding, so that they could respond; this was found to be in breach of fair procedures.
Mrs Justice Denham says the action of Mr Justice Flood in redacting material from the documents is a cause for concern.
The then tribunal chairman ruled that this material, in which the star witness James Gogarty made allegations about four other people, was irrelevant.
Mr Justice Adrian Hardiman says the issue of this “concealed material” has come before the courts “very late indeed” and not through the fault of the Murphy interests. He is scathing about the allegations made by Gogarty.
“I have absolutely no reason to believe that the allegations said to have been made against the third parties have any truth whatever to them.” Both Gogarty and one of the people who figured in his allegation are dead now, so it is unlikely these events, so far now in the past, will be re-explored.
It is almost a decade now since the interim report was published in which Murphy and Burke figure so centrally. At the time, the public queued to buy it and it was both a critical and popular success.
Since then, however, the courts have gradually unpicked the report and the manner in which the tribunal operates. The costs incurred will be a millstone around our necks for years to come. Some 13 years after it was set up, the inquiry is now limping to a close.