The Supreme Court has dismissed an appeal by the Mahon tribunal against a High Court decision upholding the challenge by property developer Owen O'Callaghan to the tribunal's refusal to give him statements made by builder Tom Gilmartin.
In a decision with implications for the work of the planning tribunal and other inquiries, the court held the tribunal could not, by its own unilateral adoption of a "policy", confer confidentiality on any material which remained absolute unless and until the tribunal itself waived it.
Having regard also to the central importance of cross-examination in ensuring the rights of a person against whom allegations had been made, and the central importance for cross-examination of access to material showing inconsistency, Mr Justice Adrian Hardiman also held that the tribunal could not limit those rights by such a policy of confidentiality.
He dismissed arguments that the tribunal's status as "master of its own procedures" could permit interference with the vital constitutional right to cross-examine a person who made grave allegations against another at a tribunal of inquiry.
Mr O'Callaghan had argued he required certain documents in the possession of the tribunal to enable him to properly cross-examine Mr Gilmartin. He said those documents were accounts, or evidence of accounts, given previously by Mr Gilmartin of matters relevant to what Mr Gilmartin was now saying about Mr O'Callaghan. However, the tribunal refused to make them available of grounds of confidentiality.
Last July, the High Court said the tribunal's refusal to give Mr O'Callaghan access to various statements made by Mr Gilmartin breached his constitutional right to fair procedures and unreasonably hampered his right to cross-examine Mr Gilmartin.
The tribunal's appeal against that decision was heard by last December by a five-judge Supreme Court. In its reserved judgment yesterday, it unanimously upheld the High Court decision.
In the appeal, counsel for the tribunal had said the central issue related to the terms on which the tribunal communicated with potential witnesses during the tribunal's investigation stage. It was submitted that the policy of the tribunal was to communicate with such persons on a confidential basis and not to release such communications to third parties.
That policy was applied to Mr Gilmartin as it was to all witnesses.
Counsel for Mr O'Callaghan had argued that he was entitled to fair procedures and that the High Court decision should stand.
Mr Justice Hardiman yesterday said the central event giving rise to the proceedings was that in the course of public oral evidence to the tribunal in March 2004, Mr Gilmartin made grave and sometimes dramatic allegations against Mr O'Callaghan, which were wholly absent from his statement as circulated to Mr O'Callaghan.
This did not appear to be in dispute, although the tribunal's attitude was somewhat "nuanced", the judge said. Arising out of the making of those allegations, Mr O'Callaghan's representatives had requested sight of earlier versions of Mr Gilmartin's statements in whatever form in the possession of the tribunal. This was refused last March.
Mr Gilmartin's statement, in the redacted (edited) form in which it was available to Mr O'Callaghan and to the court, described the course of dealing between Mr Gilmartin and Mr O'Callaghan in relation to lands in west Dublin.
The only specific allegation linking Mr O'Callaghan in any way to improper payments was to the effect that he was with others in the public bar of a Dublin hotel when, in another part of the bar and outside his presence, a named county councillor made a financial demand of Mr Gilmartin, the judge said. The parties differed, however, as to their subsequent conversation about this.
Mr Justice Hardiman said he considered, in the circumstances of the case, material communicated privately to the tribunal which recorded or related to allegations made by Mr Gilmartin about Mr O'Callaghan - or evidencing an omission to make such allegations in appropriate circumstances - had a significant and proper potential use in cross-examination of Mr Gilmartin.
To deprive Mr O'Callaghan of this material would tend to undermine "the truth-eliciting processes of a confrontation which are inherent in an oral hearing".
"I therefore consider that Mr O'Callaghan is entitled to the material which he seeks, unless its provision to him is precluded, as to the tribunal claims, by confidentiality," the judge said.
Considering whether provision of the documents was precluded by a claim of confidentiality, the judge said the tribunal could not, by the unilateral adoption of a "policy" on its own part, "confer the quality of confidentiality absolute, unless the tribunal itself waives it, on any material."
To permit the tribunal to do so would be to allow it in effect to legislate for the deprivation of a party before it of rights to which he was entitled, the judge said. It would be gravely unjust to keep prior statements from an impugned party, he held.
In a judgment also dismissing the appeal, Mr Justice Hugh Geoghegan said he was satisfied that the tribunal had applied its own policies too rigidly and in the event infringed the Constitution.