Majority judgment:The Supreme Court has cleared the way for the Mahon tribunal to further inquire into allegations made against Cork property developer Owen O'Callaghan after yesterday dismissing, by a four to one majority, the developer's bid to halt that inquiry.
The tribunal intended to carry out those further inquiries in its Quarryvale Two module on February 6th last but agreed to defer that pending the outcome of Mr O'Callaghan's case.
The majority Supreme Court decision yesterday upheld the High Court's ruling that Mr O'Callaghan had failed to show the tribunal was objectively prejudiced against him and biased in favour of Mr Gilmartin in relation to its treatment of Mr Gilmartin in the Quarryvale One module.
It found the tribunal had not behaved unfairly to Mr O'Callaghan and had not prejudged his credibility unfavourably and Mr Gilmartin's credibility fairly.
The tribunal was only in its investigative stage, the court stressed, and it accepted that the tribunal would determine the issue of credibility only after all the evidence was gathered and the public hearings.
Ms Justice Susan Denham said Mr O'Callaghan had established no basis upon which to stop proceedings. Aspects of Mr O'Callaghan's appeal illustrated "a degree of antagonism" to the tribunal, she said.
The judge also stressed the undesirability of the courts intervening in the process of a tribunal while it is at hearing, and expressed concern at the court being brought by Mr O'Callaghan in judicial review proceedings through a "microscopic" analysis of decisions of the tribunal. This was not a criminal trial and it would be wrong to require a tribunal to conduct its business as if it were, she added. There had been an inappropriate use of judicial review as if it were an appeal process, involving an extensive use of fact to "micro-analyse" decisions of the tribunal.
Earlier errors of the tribunal in not disclosing certain documents to Mr O'Callaghan - which errors were corrected following court orders - could not be used to ground a finding of objective bias. In the High Court in October last, Mr Justice Thomas Smyth dismissed on all grounds the challenge brought by Mr O'Callaghan, Mr John Deane, a solicitor and partner in O'Callaghan Properties, Riga Ltd, and Barkhill Ltd, which developed Dublin's Liffey Valley shopping centre.
Mr O'Callaghan had claimed Mr Gilmartin has made "entirely untrue" allegations in private to the tribunal, including that Mr O'Callaghan had made offshore payments to senior politicians, but then never mentioned those in evidence at the tribunal's public sessions. The allegations were concealed by the tribunal, he claimed.
Yesterday, Ms Justice Denham, Mr Justice Hugh Geoghegan, Mr Justice Nial Fennelly and Mr Justice Joseph Finnegan upheld the High Court decision while Mr Justice Adrian Hardiman dissented.
In her judgment, Ms Justice Denham said she had initially considered, having read the pleadings, the "many boxes" of papers submitted and heard the oral submissions, dismissing the appeal with one sentence, thus affirming the High Court judgment.
However, because of the serious allegations made, to allay any apprehension of bias, and so that justice may be seen to be done, she had addressed "the most important issues" raised and given express reasons for her decision on those.
The tribunal had developed careful processes in carrying out its work and the fact it had made errors in not disclosing certain documents to Mr O'Callaghan was not a ground for halting that work. As a result of separate successful court proceedings, Mr O'Callaghan now has all the documents required to cross-examine Mr Gilmartin and this protected the appellants' constitutional rights, she found.
The test for establishing objective bias by the tribunal against the appellants was whether a reasonable person would have such an apprehension of bias from statements of and conduct by the tribunal. Bias could not be inferred from a pattern of erroneous decisions, including the initial failure of the tribunal to disclose the documents.
The extensive evidence put before the court in an effort to prove objective bias would not give a reasonable person a reasonable apprehension that the tribunal had prejudged the credibility of Tom Gilmartin favourably and that of Mr O'Callaghan unfavourably, she found. Nor could an inference of prejudgment be drawn from the documents before the court.
In a separate judgment, Mr Justice Nial Fennelly said Mr O'Callaghan had not pointed to any statement of the tribunal to the effect that it believed Mr Gilmartin.
Rather, the court was asked to infer such a determination from decisions of the tribunal not to disclose documents. The tribunal's repeated statements that it makes no findings of fact until all the evidence has been heard must carry some weight. As a result of Mr O'Callaghan's side's comparison of various statements made by Mr Gilmartin with earlier statements, the Supreme Court had been invited to conduct a "mini tribunal" which was "fundamentally objectionable".
