Supreme Court dismisses judicial review appeal alleging bias in planning inquiry tribunal proceedings.

THE SUPREME COURT

[S.C. No: 398 of 2006]

Denham J.

Hardiman J.

Geoghegan J.

Fennelly J.

Finnegan J.

BETWEEN/

OWEN O'CALLAGHAN,

JOHN DEANE,

RIGA LIMITED, AND

BARKHILL LIMITED

APPLICANTS/APPELLANTS

AND

JUDGE ALAN MAHON,

JUDGE MARY FAHERTY

AND

JUDGE GERALD KEYS

MEMBERS OF THE TRIBUNAL OF INQUIRY INTO

CERTAIN PLANNING MATTERS AND PAYMENTS

RESPONDENTS

Judgment delivered the 30th day of March, 2007 by Denham J.

1. These are judicial review proceedings in which Owen O'Callaghan, John Deane, Riga Limited and Barkhill Limited, the

applicants/appellants, hereinafter referred to as "the applicants", have appealed to this Court from the judgment and order of the High

Court (Smyth J.) delivered on 10th October, 2006, which order refused the applicants the reliefs they sought. Judge Alan Mahon,

Judge Mary Faherty and Judge Gerald Keys, are members of the Tribunal of Inquiry into Certain Planning Matters and Payments, and

are hereinafter referred to as 'the Tribunal'.

2. In these proceedings the applicants seek to stop the Tribunal from investigating further, or making any findings against, the

applicants, on the basis of bias, partiality and/or unfairness by Tribunal.

3. Inspite of the fact that these are judicial review proceedings, a significant feature of this case is the very high level of factual

detail in the pleadings and in the submissions, as to the proceedings before the Tribunal. To address fully the issues submitted by the

applicants I consider that it is necessary to refer in some detail to the allegations.

4. The applicants were granted leave to apply by way of judicial review for the following reliefs:

(i) an order of prohibition by way of judicial review prohibiting the Tribunal from further investigating or making any finding

in relation to matters affecting the applicants;

(ii) an order of certiorari by way of judicial review quashing the decision of the Tribunal whereby the Tribunal refused to

desist from further investigating or making any findings in relation to matters affecting the applicants.

5. The grounds upon which the applicants were granted leave to seek judicial review were lengthy, replete with facts, and as follows:

(a) The first named applicant is a property developer and is a director of Barkhill Limited having its registered office at

Mahon Industrial Estate, Cork and Riga Limited having its registered office at Mahon Industrial Estate, Cork. The second

named applicant is a solicitor acting as a consultant to the firm of Ronan Daly Jermyn, Solicitors, 12 South Mall, Cork and

is a property developer and a director of Barkhill Limited and Riga Limited.

(b) (i) The applicants have been granted representation at the Tribunal. The Tribunal was established by the Oireachtas

in October 1997 and its terms of reference has been expanded on a number of occasions to investigate alleged improper

payments to politicians in connection with the planning process. The Quarryvale I Module of the Tribunal commenced in

public session on the 3rd of March 2004 being day 455 and is entitled "Arlington/Quarryvale and related matters". The

said module was concerned with allegations of corruption relating to lands at Bachelor's Walk in Dublin City and Quarryvale

in west County Dublin.

(ii) The Quarryvale I Module deals with the years 1987 to 1990.

(c) A further module of the Tribunal was due to commence on the 29th of November 2005 to deal with Quarryvale lands

thereafter, from the years 1990 to 1996. The Tribunal had not yet commenced public hearings into the Quarryvale 2

Module and while the majority of the public hearings dealing with the first module have been completed, it was envisaged

that the Tribunal would resume further hearings to complete outstanding issues.

(d) Prior to the commencement of the Quarryvale I module, the Tribunal caused to be distributed to relevant interested

parties a brief containing statements and documents. The brief was accompanied by a letter from the Tribunal. This brief

was intended to consist of all evidence to be adduced before the Tribunal for the first module and was distributed to the

applicants before they were granted representation. The brief was subsequently thereafter supplemented by the Tribunal

on a number of occasions.

(e) On the 12th of December 2003 the Tribunal circulated a document entitled "An explanatory memo re: Rezoning

Module". This document purported to describe the procedure adopted by the Tribunal in the conduct of the inquiries in

public. This indicated that relevant material would be circulated as part of the brief.

(f) The brief for the Quarryvale I Module was circulated to interested parties and contains statements from various

proposed witnesses with relevant documentation. It included a lengthy statement from Tom Gilmartin dated the 25th of

May 2001, large parts of which were redacted apparently on the basis that they did not concern that particular module.

The only allegation made as against Owen O'Callaghan in the portion disclosed suggested that he was present in Buswell's

Hotel when a demand of Tom Gilmartin for £100,000 by Councillor Finbarr Hanrahan [was made].

(g) The said statement was subject to a letter of correction by A & L Goodbody, solicitors acting on behalf of Tom

Gilmartin.

(h) The evidence of Tom Gilmartin to the Tribunal commenced in public on the 3rd of March 2004. During the course of his

evidence serious allegations were made as against the applicants apparently for the first time which affected the

applicants' good name and reputation in business. In the course of the testimony of Tom Gilmartin the Tribunal did not

directly or through its counsel prevent him from making these allegations. Amongst the allegations made by Tom Gilmartin

for the first time he alleged that an agreement of the 31st of January, 1989 entered into by the said Tom Gilmartin with

Owen O'Callaghan had been falsified by Owen O'Callaghan and John Deane so as to alter the terms thereof. He alleged

that on the 7th of December, 1988 Owen O'Callaghan had told Tom Gilmartin that the line of Lee Tunnel has been altered

to suit a site which he owned at Mahon and that he had just previously been at a dinner for the opening of the tunnel. He

also alleged that one of the reasons why £50,000 was paid by him to the Minister for Environment, Padraig Flynn by way

of a cheque in which the payee was left blank was for the purposes of stopping the activities of Owen O'Callaghan. He

alleged that Owen O'Callaghan gave false information to the British Revenue resulting in Tom Gilmartin being declared

bankrupt. He alleged that Owen O'Callaghan had bribed Councillor Sean Gilbride. He also alleged that the purchase by Tom

Gilmartin of Owen O'Callaghan's interest in a site at Balgaddy, County Dublin was the result of Owen O'Callaghan holding

Tom Gilmartin to ransom. He alleged that Owen O'Callaghan with the connivance of Allied Irish Banks Plc stole Tom

Gilmartin's money and used it to bribe councillors to block re-zoning for the Quarryvale Scheme. He also alleged that Owen

O'Callaghan encouraged Tom Gilmartin not to co-operate with a Garda investigation into his allegations.

(i) These allegations appeared to the applicants at the time to be made by Tom Gilmartin for the first time in the

course of his testimony and were profoundly serious and impugned the good name of the applicants and each of

them. The allegations are false.

(j) Tom Gilmartin was thereafter cross-examined by counsel on behalf of An Taoiseach and in the course of this cross-

examination it emerged for the first time that Tom Gilmartin had had meetings with members of the Tribunal team and had

made certain oral statements and furnished at lease one prior written statement to the Tribunal. None of these

documents had been circulated in the brief. Tom Gilmartin accepted there were probably inconsistencies between his

statement and testimony and earlier statements made to the Tribunal. This emerged by chance. The Tribunal then ruled

that it would not conceal from interested parties information which would suggest that there was a glaring inconsistency

between an account given on a previous occasion privately to the Tribunal and one given publicly because that would be

wrong. Nevertheless, it refused to allow counsel to pursue the issue of prior statements or their contents in cross

examination with Mr. Gilmartin.

(k) On the 18th of March 2004 solicitors acting on behalf of Owen O'Callaghan sought a copy of the earlier statements

submitted by Tom Gilmartin with confirmation that no other statements to the Tribunal relevant to the first module

existed. This request was made on the day before cross-examination was due to commence by senior counsel retained on

behalf of the applicants.

(l) On the 24th of March 2004 the Tribunal issued a ruling on the application and referred to two categories of documents.

The first were documents prepared in the course of private investigative stage of the inquiry by members of the Tribunal's

legal team and the second were documents provided by Tom Gilmartin's then solicitor Mr. Noel Smyth. The Tribunal

refused to disclose any of these documents. The Tribunal indicated that it had received documents from Mr. Gilmartin on

the basis of confidentiality and that there were no exceptional circumstances in existence which would merit a departure

from the existing procedures of the Tribunal and it determined that in accordance with these procedures it would not

permit the documents or statements to be disclosed.

(m) The refusal of the Tribunal to disclose the statements and documents to Owen O'Callaghan to facilitate the cross-

examination of Tom Gilmartin failed to respect the principles of natural and constitutional justice and basic fairness of

procedures and was in breach of Article 40.3 of the Constitution of Ireland 1937.

(n) As a consequence of the ruling of the Tribunal made on the 24th of March 2004 an application for access to the

documents was made by way of application for Judicial Review. This application was fully resisted by the Tribunal in the

High Court. The application succeeded before the High Court. The Tribunal appealed the whole of the judgment to the

Supreme Court. In the course of its appeal to the Supreme Court the Tribunal filed written submissions denigrating the

importance of Owen O'Callaghan's proceedings and suggesting that he was simply seeking access to documents to use as

ammunition for cross examination of Mr. Gilmartin. The Supreme Court ruled in favour of Owen O'Callaghan.

(o) Consequent upon the judgment, and for the first time, the Tribunal raised the question of redaction. The Tribunal

sought to redact large segments of documents. This was challenged by Owen O'Callaghan in the said proceedings which

were remitted to the High Court for consideration. On the 29th of July 2005, the High Court determined that certain

segments of the documents ought not to have been redacted. This decision has not been appealed by the Tribunal to the

Supreme Court. Certain documentation was made available to the applicants following upon the determination of the

Supreme Court. Further documentation has been made available to the applicants since the subsequent judgment of the

High Court on 29th July 2005.

(p) The documents in total disclosed were extensive and consisted of 57 documents, some of which were lengthy.

(q) As a result of the disclosure of these documents it is evident that Tom Gilmartin was in contact with senior counsel

for the Tribunal on at least 36 occasions. The Tribunal legal members travelled to London to meet him. A draft affidavit

was prepared for Tom Gilmartin with assistance from Tribunal counsel. The applicants were never allowed the opportunity

of coming to meet the Tribunal in private session despite offers so to do. The ruling of the Tribunal on the 24th of March

2004 indicated that all written and oral statements received from Tom Gilmartin were accepted on the basis of an

undertaking as to confidentiality other than the statements circulated. No such undertaking was offered to the

applicants. Tom Gilmartin sought and obtained immunity from prosecution. No such immunity was offered to the

applicants. The terms of the immunity have never been disclosed. Further, it appears that the Tribunal formed and

expressed a view to Mr. Gilmartin at a comparatively early stage in the preliminary investigation as to his veracity saying

that he did not need immunity. By way of contrast, during the preliminary investigations, the Tribunal formed and

expressed the view to Mr. Gilmartin that it would prove fraud against Owen O'Callaghan. Thereafter, on at least two

occasions, the Tribunal disclosed confidential information to Mr. Gilmartin during the preliminary investigation.

(r) The Tribunal was in possession of a considerable volume of information emanating from Tom Gilmartin which was known

to the Tribunal and must have been known to contain inconsistencies which would undermine Tom Gilmartin's testimony

but which was nevertheless not circulated and only emerged following compulsion by order of the Court. The Tribunal

proceeded to conduct the first module of public hearings and Tom Gilmartin was called to testify by the Tribunal,

examined in chief and cross-examined without the existence or content of this information being made known.

(s) The information not disclosed by the Tribunal was highly relevant and revealed serious inconsistencies, giving rise to

serious concerns for the applicants as to the approach of the Tribunal to Tom Gilmartin and in comparison, to the

applicants. The documentation now revealed discloses a serious disparity in treatment between that afforded to the

applicants and that afforded to Tom Gilmartin. Of serious concern was the extent of the serious inconsistencies between

the evidence given by Tom Gilmartin and statements made by Tribunal counsel during the course of the public sessions.

The Tribunal ignored these inconsistencies notwithstanding that it knew of such matters. Further the Tribunal in public

session determined that there were no inconsistencies between that documentation which the applicants had received

and the evidence given by Tom Gilmartin on the one hand, and that which was in the Tribunal's possession, unknown to

the applicants on the other. Had Owen O'Callaghan not pursued this matter through the courts he would never have

known of the extensive body of documentation held by the Tribunal which contains serious inconsistencies with the

evidence given by Tom Gilmartin and of the grievously wrongful nature of the determination of the Tribunal on the 24th of

March 2004.

(t) Further during the course of the hearings of the Quarryvale I module senior counsel on behalf of the applicants was

cross-examining Tom Gilmartin on an issue concerning a discussion between Tom Gilmartin and on Finbarr Hanrahan at

Buswells Hotel when objection was taken to this line of cross-examination. When counsel pointed out that Tom Gilmartin's

credibility was being challenged one of the members of the Tribunal commented that he had no doubt that Owen

O'Callaghan knew Mr. Hanrahan quite well. This was a disturbing comment and it was pointed out that Owen O'Callaghan

did not know Finbarr Hanrahan quite well at that time but knew him only to see. In light of the large number of false

allegations by Tom Gilmartin present on the Tribunal files, the existence of which has only come to the attention of the

applicants now for the first time since the documents have been unredacted the applicants are concerned that the

Tribunal held a certain view of Owen O'Callaghan.

(u) The Tribunal took no steps to prevent untrue testimony being adduced when it knew that contradictory and

inconsistent statements had been made by Tom Gilmartin. An allegation was subsequently withdrawn, such as that made

as against Mary Harney TD, by Tom Gilmartin several days after it was made when the Tribunal must have know from

statements in its possession that the allegation from the moment it was made in evidence was untrue. Nevertheless, the

Tribunal did not correct the record at the time. The applicants became concerned that the Tribunal may have been

involved directly or indirectly in informing Tom Gilmartin that his evidence in relation to this topic was capable of being

objectively and definitively contradicted, although the Tribunal denied it in subsequent correspondent.

(v) In relation to a number of matters it appears to the applicants that the Tribunal sought to protect Mr. Gilmartin from

the consequences of the disclosure of earlier statements that he had made to the Tribunal. Meanwhile, while possessed

of information in which the most serious and untrue allegations were made against the applicants, it invited the first and

second named applicants to testify, exposed them to examination and cross examination and proposed to sit in judgment

on the credibility of their testimony without having disclosed or afforded them the opportunity of disputing the material

contained in the aforesaid allegation.

(w) Having regard to the investigative nature of the Tribunal and in particular its statutory obligation to investigate the

facts, it was required, as a matter of law and constitutional justice to put to Mr. Gilmartin his prior inconsistent

statements and in particular prior statements containing a glaring and/or significant inconsistency. The Tribunal's failure

so to do constituted a breach of its statutory obligation and/or its obligation under the Constitution and in particular its

obligation to ensure fair procedures and equal treatment and/or gives rise to a reasonable apprehension of bias.

(x) On the 13th day of September 2005 the applicants through their solicitors wrote to the Tribunal requesting it to

confirm that it would desist from further investigating or making any findings in relation to the matters affecting the

applicants or any of them.

(y) On the 26th day of September 2005 the Tribunal responded indicated that it would refuse to provide such

confirmation and indicating that it intended to continue with the investigation into the affairs of the applicants. In the

course of that letter, the Tribunal stated that it had been lead to the conclusion that "you" have elected to pursue a

course of dealing the Tribunal which is intended to create the false impression that "you" have a legitimate concern as to

the capacity of the Tribunal to deal fairly and impartially with the issue involving "your clients". The applicants understood

(and reasonably understood) this statement to be an expression of conclusion by the Tribunal to the effect that the

concerns that they had expressed through their solicitors in correspondence were not sincere or genuine and that their

concern as to the capacity of the Tribunal to deal fairly and impartially with the issues against them were not legitimate.

They were greatly disturbed that in circumstances where they had to face into a lengthy hearing before the Tribunal

which would ultimately make findings on allegations against them, the Tribunal had already reached a conclusion which

was so damning in terms of their bona fides. They also felt intimidated by the tone and content of the entire reply. In

subsequent correspondence with the Tribunal, the Tribunal stated by letter of the 27th October 2005 that the conclusion

of the Tribunal referred to related to the conduct of the solicitors acting for the applicants and not of the applicants

themselves. This placed the applicants and their solicitors in an even more invidious position as pointed out to the

Tribunal in subsequent correspondence.

(z) The applicants cannot have and do not have any faith in the fairness of the process or the procedures of the

Tribunal. They are of the view and are entitled to form the view that the Tribunal cannot fairly adjudicate upon

allegations of impropriety against them. The applicants reasonably suspect bias and partiality on the part of the Tribunal

in the treatment of Tom Gilmartin on the one hand and of the applicants on the other hand. Alternatively there is a real

likelihood of such bias or partiality.

6. Earlier Case

This case follows upon earlier proceeding brought by Mr. Owen O'Callaghan against the Tribunal. That earlier case arose in the

following circumstances. On the 3rd March, 2004, Mr. Tom Gilmartin began giving evidence at a Public Hearing of the Tribunal on

Quarryvale I. During his evidence he made many very serious allegations against Mr. Owen O'Callaghan. Mr. Owen O'Callaghan had had

no notice of these allegations. Indeed, there was a degree of surprise by the Tribunal also. In cross-examination it emerged that

there was other written material with the Tribunal, other than that which had been circulated in the Tribunal's brief for the module.

Requests were made to see the relevant documents. Subsequently the solicitors for the applicants wrote to the Tribunal seeking

documents. On the 24th March, 2004 the Tribunal formally ruled that the documents were not available because of their rule of

confidentiality. Mr. O'Callaghan commenced proceedings and in O'Callaghan & Ors. v. Mahon and Ors. [2005] IESC 9 hereinafter

referred to as "the earlier O'Callaghan case", this Court held that the applicants had been denied their constitutional rights pursuant

to In Re Haughey [1971] I.R. 217 and that they were entitled to the documents which they had sought. Geoghegan J., with whom

Murray C.J., Denham J. and Fennelly J. agreed, stated:

"For the purposes of disposing of this appeal . . . I think it is sufficient to rely only on In re Haughey [1971] I.R. 217 and

to state that the tribunal in this case did not comply with the requirements of the Supreme Court laid down in that case.

A 1921 Act tribunal is, in my view, perfectly entitled to formulate a policy and indeed the efficient execution of its work

requires that there be such a policy: A literal application of court procedures will often not be either necessary, desirable

or efficient. A tribunal is also perfectly entitled to conduct separate hearings of separate modules and to try as far as

possible to discipline counsel and the witnesses so that the evidence at any given time is confined to the evidence

relevant to that module.

This tribunal did not claim that it was absolutely hide-bound by its own policy or by any rules or systems which it may

have devised and, quite rightly so, because whereas the tribunal undoubtedly has the latitude which I have suggested

and which may not be available to a court of law, it is always bound to ensure, as far as possible, compliance with

constitutional rights and obligations and that, of course, includes the vindication of a person's good name. For all the

reasons put forward by Hardiman J. much more eloquently than I would be able to do, it was absolutely essential that the

documents and materials which were sought for the purpose of carrying out a worthwhile cross-examination in the

extraordinary circumstances where wild allegations were flying around the tribunal against Mr. O'Callaghan and of which he

had no prior notice, be duly produced. The tribunal relies on an understanding of confidentiality. It is not suggested,

however, that the confidentiality was absolute nor could it have been. The tribunal could not possibly ensure absolute

confidentiality relating to information, which, for instance, might turn out to be highly relevant to the very matters that it

was investigating. Any such confidentiality must necessarily be limited to information, in the event found not to be

necessary to be used at an oral hearing. If, however, the information becomes absolutely essential for the purposes of

cross-examination pursuant to a re Haughey right then the tribunal is not entitled to maintain the confidentiality and can

be judicially reviewed for doing so.

The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to

particular rulings made by a tribunal while the hearings are still running. As I have already indicated there is, in my view, a

wide latitude given to tribunals to fashion its own procedures and the courts should not lightly interfere. It is for that

reason that I would prefer to base my conclusions on narrower grounds than those put forward by Hardiman J. In

particular having regard to the clear views of this court in In re Haughey it would not seem to me to be necessary to

consider to what extent the numerous cases and statutes relating to the law of evidence for the purposes of the courts

must necessarily be applied to every cross-examination in a tribunal.

I am satisfied that in this case the tribunal applied its own policies too rigidly and in the event infringed the Constitution. I

would dismiss the appeal."

Thereafter there were proceedings in the High Court as to redactions in the documents disclosed. On 29th July, 2005 the High Court

(O'Neill J.) ruled on the issue of the redactions by the Tribunal, disallowing some and permitting some. This decision was not appealed

to this Court. I shall return to this matter later in the judgment.

It was the disclosure of these documents after the earlier O'Callaghan case which has formed the foundation for the applicants' claim

in this case. After an exchange of robust correspondence these proceedings were commenced when the High Court (Abbott J.) on the

28th November, 2005 granted leave to apply by way of judicial review for an order of prohibition and/or certiorari.

7. High Court

This case was at hearing before the High Court for fifteen days, during various dates in March, April and May, 2006. In a reserved

judgment delivered by Smyth J. on 10th October, 2006 the application was refused. The learned High Court judge referred to two

central claims made by the applicants: (a) The applicants contended that the documents, and related fact documents obtained by

them pursuant to previous court orders, demonstrated that the applicants have not been treated fairly by the Tribunal in the

Quarryvale I Module, and have been denied fair procedures, in that they have been treated in an unequal manner compared to Mr.

Tom Gilmartin. The applicants contended that Mr. Tom Gilmartin is a person who has made very serious allegations against them, and

that this unfairness, denial of fair procedures, and unequal treatment, represents a serious infringement of their rights. (b) In addition,

the applicants contended that there is an appearance of bias and partiality on the part of the Tribunal, and that the approach by the

Tribunal to date gave rise to a reasonable apprehension or suspicion of bias.

The applicants contended in the High Court that the documentation which has been disclosed now as a result of the earlier

O'Callaghan Case contained a number of important matters which were significantly inconsistent with the statement of Mr. Tom

Gilmartin and that it could not be credibly contended that such inconsistencies were not 'gross or glaring or significant'. The learned

High Court held:

"In my judgment it is now irrelevant what assurances(s) (if any) were considered to have been given to the court and

such as did arise had their origins in counsel's submissions - because in the events the materials have now been disclosed

as a result of the court orders, and any erroneous assessment or adjudication as to the inconsistencies or degrees

thereof stand as set aside and can be addressed by the Applicants in open session at any future hearing by the Tribunal".

The learned trial judge stated that the point of departure for adjudication in this case is from full compliance by the Tribunal with the

judgment in the earlier O'Callaghan case and from the order for leave granted by Abbott J. on 28th November, 2005 in this case. The

learned trial judge referred to the judgment of Geoghegan J. in the earlier O'Callaghan case where he held:

. . . it was absolutely essential that the documents and materials which were sought for the purpose of carrying out a

worthwhile cross-examination in the extraordinary circumstances where wild allegations were flying around the Tribunal

against Mr. O'Callaghan and of which he had no prior notice be duly produced."

The learned High Court judge in this case stated that when the documents were duly produced these proceedings began with a view,

not to give effect to the order sought and obtained by the applicant in the earlier O'Callaghan case, but to prohibit the Tribunal from

further investigating or making any findings in relation to matters affecting the applicants.

The learned High Court judge pointed out that while many of the public hearings regarding Quarryvale I have been completed, it

appeared to be the intention of the Tribunal to resume hearings and complete that module. The learned trial judge held:

"In my judgment it is incumbent on the Tribunal to recall Mr. Gilmartin so as to enable the applicants (now in possession of

all the requisite documentation) to exercise the effective cross-examination which they claim to have been denied to

them in the past. The Quarryvale II module has as yet not been embarked upon by the Tribunal and in this regard the

Tribunal, in its circulation of documents has followed the guidance of the courts as set out in [the earlier O'Callaghan

Case]. Indeed counsel to the tribunal will have a role in this regard in order to test the credibility of the evidence."

The learned trial judge considered the specific issues which have been raised before him and which it was claimed illustrated unfair

procedures and bias. He dismissed the application, having referred also to the doctrine of necessity.

8. Grounds of appeal

From the decision of the High Court to refuse the application the applicants have appealed. The applicants filed forty grounds of

appeal, submitting that the learned trial judge erred in law or in fact or on a mixed question of law and fact:

1. In holding that the appellants were not entitled to an Order prohibiting the Tribunal from further investigating or making

any finding in relation to matters affecting the appellants.

2. In holding that the appellants were not entitled to an Order of Certiorari quashing the decision of the Tribunal whereby

the Tribunal refused to desist from further investigating or making findings in relation to matters affecting the appellants.

3. In failing to address the individual and specific issues raised by the applicants and the significance of same and to

consider and determine in the light of the said issues whether there had been a failure to observe fair procedures in

relation to the applicants such that the reliefs sought by the applicants ought to be granted.

4. In failing to address the individual and specific issues raised by the applicants and the significance of same and to

consider and determine whether in the light of same the words and actions of the Tribunal complained of gave rise either

individually or collectively to the appearance of bias in the eyes of a reasonable observer.

5. Wrongly treated as irrelevant inconsistencies between Tom Gilmartin's testimony and statement even where significant

or glaring.

6. Wrongly treated as irrelevant the Tribunal's repeatedly stated view that inconsistencies in Tom Gilmartin's testimony

and statements were insignificant or were not glaring.

7. Failed to attach any or any significant weight to the comment of the third named respondent as to how that comment

(either alone or in combination with other matters complained of) might be perceived by the reasonable observer in the

context of the applicants complaint of objective bias.

8. Wrongly found that what the applicants had sought to do in these proceedings was in part to seek to relitigate [the

earlier O'Callaghan Case].

9. Wrongly inferred that a case of actual bias was advanced at the leave stage and later "abandoned" when a case of

objective bias only had been advanced.

10. Misunderstood the applicants' case as to the relevance of the Tribunal's view that inconsistencies in Tom Gilmartin's

statement were insignificant.

11. Attaching weight to certain averments in an affidavit of Susan Gilvarry (while ignoring other averments) as to the

view of the Tribunal instead of the appearance that the words and actions of the Tribunal would create in the mind of a

reasonable onlooker.

12. Attaching or appearing to attach weight to a view that the outcome of [the earlier O'Callaghan Case] may require the

Tribunal to adopt a method of proceeding which was less orderly when this was not based on submissions by either party

and was irrelevant.

13. In holding that in effect the applicants' case was that the individual members of the Tribunal have deliberately and

consciously decided (and therefore conspired together) to favour and protect Mr. Gilmartin with a view to making a case

against the applicants, the learned trial judge confused the concepts of subjective and objective bias.

14. In holding that there was an adequate explanation before the Court as to why the matter should proceed the learned

trial judge erred in addressing an irrelevant question and dr

15. The learned trial judge drew the wrong inference as to the apparent meaning of the particular comment by the third

named respondent the subject of the challenge.

16. The learned trial judge's observations as to the meaning and consequences of this Court's decision in [the earlier

O'Callaghan case] (and in particular the judgment of Hardiman J.) were inappropriate and irrelevant and not the subject of

argument before the learned trial judge but nevertheless appeared to influence his evaluation of the merits of the

applicants' case.

17. In the context of the complaint by the applicants of the view expressed by the Tribunal in their letter of the 26th of

September 2005 the finding that it was pardonable or that the Tribunal could reasonably have come to certain views

failed to address the consequences in terms of fair procedures and/or objective bias of the Tribunal reaching, expressing

and communicating a conclusion in the terms expressed in that letter.

18. In requiring the conclusion to the letter of 26th September 2005 to pass a test of being expressed "in such extreme

and unbalanced terms as to throw doubt on the ability of the tribunal to try the issue that it is entrusted to try with an

objective judicial mind" the learned trial judge applied the wrong test, or alternatively drew the wrong inference on the

basis of the application of such a test.

19. In placing a benign interpretation on discrete aspects of what the Tribunal said and did whilst failing to address

properly or at all how such words or conduct might appear to the reasonable onlooker.

20. In holding in respect of Mr. Gilmartin that the Tribunal was "entitled to assume that the man did not set out to

deliberately perpetrate falsehood" when there was no factual or legal basis for this finding and the suggested assumption

flew in the face of the evidence before the High Court. The trial judge was also incorrect to characterise such an

assumption as the Tribunal being "entitled to approach their task with an open mind". Having an open mind does not

equate with a presumption that persons making serious allegations are telling the truth. A presumption that a particular

person making serious allegations against another is telling the truth is the antithesis of fair procedures and also, by

definition, amounts to a presumption that a person denying such allegations is not telling the truth. Having found that the

Tribunal had and exercised this presumption of truth the learned trial judge should have granted the applicants the reliefs

they sought.

21. In failing to make a single finding that was critical of the manner in which the Tribunal has conducted itself which said

failure flew in the face of the evidence before the learned trial judge.

22. In failing to give any or sufficient weight to the incorrect assurances which the Tribunal gave the courts on previous

occasions and in particular in failing to consider whether such conduct might reasonably appear to evidence a disposition

on the part of the Tribunal against the applicants.

23. In holding that it was now irrelevant what assurances the Tribunal gave the courts on previous occasions.

24. In holding that any erroneous assessment or adjudication by the Tribunal which led to the assurances the Tribunal

gave the courts on previous occasions are a matter that could be adequately addressed in open session at any future

hearing by the Tribunal.

25. In holding and/or attaching weight to a finding that the Tribunal "is anxious that the first named Applicant is provided

with the opportunity for a full and effective cross-examination".

26. In holding that the recalling of Mr. Gilmartin at this stage is an answer to the applicants' complaints and in giving

weight to the suggestion that "counsel to the Tribunal will have a role in this regard in order to test the credibility of the

evidence" and in failing to give any or sufficient weight to the consistent failure of the Tribunal to meaningfully test Mr.

Gilmartin's credibility in the past.

27. In failing to consider whether or not there is any reality to the Tribunal engaging in a "review [of] whatever earlier

preliminary views it may have expressed in any form" on Mr. Gilmartin given its previous conduct including its giving of

incorrect assurances to the courts.

28. In failing to give sufficient or any weight to the earlier failure of the Tribunal to disclose that Mr. Gilmartin had been

offered immunity.

29. In holding that it was premature for the Court to prohibit the Tribunal from hearing the evidence. The previous

conduct of the Tribunal and in particular the consistent failure of the Tribunal to meaningfully test Mr. Gilmartin's

credibility in the past were more than a sufficient basis for prohibiting the Tribunal from further investigating or making any

finding in relation to matters affecting the applicants.

30. In failing to give sufficient or any weight to the manner and number of times in which Mr. Gilmartin met the Tribunal or

their legal advisors and in placing a benign interpretation on such conduct.

31. In holding that Mr. Gilmartin was not given any special or privileged status by the Tribunal and that there was no

inequality of treatment.

32. In holding that the decision of the courts in the [earlier O'Callaghan case] meant that the applicants' concerns about

the fairness of the procedures in these proceedings had been addressed.

33. In accepting and treating as relevant the averments on behalf of the Tribunal that they were open-minded and in

failing to test those averments either at all or adequately against the perception that actual conduct and

pronouncements of the Tribunal and their legal advisors gave rise to in the mind of the reasonable observer.

34. Having regard to the proved and admitted facts in drawing an incorrect inference as to the perception of the

reasonable person as to whether there was a real possibility that the Tribunal was biased against the applicants.

35. In mischaracterising the objective bias case being made by the applicants simply as one to the effect that a

reasonable observer would conclude that there was a real possibility that the Tribunal wished to vindicate Mr. Gilmartin at

the expense of the applicants and/or doing so on the basis of an incorrect paraphrasing of a dictum of Barron J. in the

Orange Case.

36. In failing to apply either at all or properly the principle that any doubt on the question of an appearance of bias should

be resolved in favour of the applicants.

37. In particular, in failing to apply either at all or properly the principle that any doubt on the question of an appearance

of bias should be resolved in favour of the applicants the Tribunal's letter dated 26th September 2005.

38. In characterising the applicant's case in relation to the Tribunal's letter dated 26th September 2005 as "worrying over

the misuse of infelicitous use of language" and in failing to interpret the letter in the light of the previous conduct of the

Tribunal or to determine the effect of the contents of that letter on the perception of the reasonable observer.

39. In treating the issue of the rights of third parties to have such allegations as are made against them dealt with as

soon as is possible as being relevant to the issue as to whether or not objective bias had been established by the

appellants.

40. In holding that the doctrine of necessity would be an answer to an existence of objective bias and unfair procedures.

9. Issues on this appeal

While the earlier O'Callaghan case held that the applicants were entitled to the specified documents, it is now submitted by the

applicants that the previous refusal of the Tribunal to disclose certain documents lays a foundation upon which may be established

unfairness, partiality and/or bias on behalf of the Tribunal against the applicants.

There were two fundamental issues raised on this appeal, as they were in the High Court, being: (i) allegations of unfair procedures

and inequality of treatment, and (ii) bias. In making these submissions the applicants have referred to a number of specific matters,

which it is claimed are examples of the unfairness and bias. These were considered by the High Court, and in the circumstances of the

proceedings, I find it necessary to refer to them also.

10. Submissions

Extensive written submissions were filed on behalf of the applicants. Mr. Paul Gallagher S.C., counsel for the applicants, in oral

submissions made two central claims; (1) that the documents and related facts demonstrate that the applicants have not been

treated fairly by the Tribunal with regard to the module Quarryvale I and have been denied fair procedures. Further, that they have

been treated in an unequal manner compared to Mr. Gilmartin, the person who made very serious allegations against them. (2) He

contended that there is an appearance of bias on the part of the Tribunal and that the approach by the Tribunal gives rise to a

reasonable suspicion of bias.

While relying on the entirety of the written submissions, counsel for the applicants referred to seven specific examples which, it was

submitted, illustrated the applicants' claim and which put their case at its height. I shall return to these matters later in the judgment.

Extensive written submissions were also filed on behalf of the Tribunal and oral submissions were made by counsel. The claims made

by the applicants were denied in detail.

I shall refer to specific submissions where relevant in the course of the judgment.

11. Tribunal

The Tribunal was established by resolution of Dáil Éireann and appointed by instrument of the Minister for the Environment and Local

Government in November, 1997. The terms of reference were set out in 1997 and amended in 1998. The composition of the Tribunal

was altered to three members and one reserve by statutory instrument in 2002. The Tribunal as it is now comprised has been in

existence since July 2003. The three named respondents are members of the Tribunal and are judges of the Circuit Court. The

Tribunal is, pursuant to the terms of reference, mandated to inquire into certain matters of urgent public importance. The Tribunal is

an inquisitorial body, to inquire into the matters set out in the terms of reference. While the Tribunal is not a court of law, the

members are judges of the Circuit Court.

The Tribunal has formulated its own procedure. The inquisitorial stage of the inquiry is directed toward the gathering of information to

enable a decision to be made as to whether the matter merits a public inquiry. Thereafter there may be a public inquiry on a matter.

As to the ultimate decision of the Tribunal, the Tribunal has ruled that it would sit in public hearings and hear evidence as to the

issues; that the ultimate decision of the Tribunal will be based on the evidence in the public inquiry stage; that information from the

private inquiry stage will form no basis for a decision of the Tribunal.

12. Policy, procedures and rulings of the Tribunal as to disclosure

The terms of reference did not set out procedures, except in a broad principle. The Terms of Reference state:

"A. And that the Tribunal be requested to conduct its inquiries in the following manner, to the extent that it may do so

consistent with the provisions of the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979:-

(i) to carry out such preliminary investigations in private as it thinks fit using all the powers conferred on it under

the Acts, in order to determine whether sufficient evidence exists in relation to any of the matters referred to

above to warrant proceeding to a full public inquiry in relation to such matters,".

The Tribunal has developed its own procedures and policies, which include the preliminary investigation stage and the subsequent

public inquiry.

The procedures of the Tribunal as an inquisitorial body were described in the affidavit of Susan Gilvarry, sworn on the 23rd day of

January, 2006, as follows:-

"24. The Tribunal of Inquiry operates as an inquisitorial body. While a Court hears evidence identified or collected by or on

behalf of the parties appearing before it and does not normally interest itself in this aspect of any case, a Tribunal on the

other hand is obliged to investigate and seek information where possible, examine such information as collected by it and

then come to a decision as to whether such information merits the hearing of the matters in public and as a consequence

whether a public inquiry should be conducted on foot of that information.

25. In circumstances where the Tribunal concludes that a public inquiry is not merited it therefore remains neutral as to

the truth or falsity of the information that had come to light in the course of the private investigative stage.

26. The Tribunal proceeds to public hearing where following investigations the Tribunal believes that there is good and

sufficient reason to merit a public inquiry.

27. The Tribunal is not confined to proceeding to public inquiry only where there is a prima facie or strong case for doing

so. The Tribunal does not consider the fact that, on its face, a particular matter seemed outlandish and incredible to be a

reason for disregarding the matter without any investigation. The validity of this approach has been established by the

Second and Third Interim Reports of the Tribunal.

28. Unlike a Court, the Tribunal must identify potential areas of interest or concern to the Tribunal. It must direct its' legal

team as to the type of investigation to be carried out thereto. It must evaluate the information gathered by its legal team

with a view to determining whether a public inquiry is merited into any matter revealed therein. It must determine which

issues require to be examined at a public inquiry and must decide which matters will not be the subject of a public inquiry.

It must decide what evidence it intends to call at the public inquiry. Following upon this, Members of the Tribunal must sit

in judgment on the evidence heard in public and any submissions made thereon, and make a Report on their findings based

on this evidence to the Oireachtas.

29. In an inquisitorial inquiry therefore the function of the Members of the Tribunal is to direct the gathering of information

from the outset, to decide whether based on the material collected in its preliminary investigation, which matter do and

do not merit public inquiry and subsequently to sit in public hearing in relation to those matters and to hear evidence at

the public hearing. The Members of the Tribunal keep an open mind on all matters until such time as they come to make

their final findings of fact and prepare the report for the Oireachtas.

30. It is necessary for the Chairman and Members of the Tribunal when hearing evidence in public to exclude from their

minds information which has come to their attention in the course of the private inquiry stage. To this end, they are

required to draw upon their training and experience as lawyers and judges on an ongoing basis."

The Tribunal has made rulings as to its procedures. I shall cite several to show the approach adopted by the Tribunal as to the issue

of confidentiality and as to disclosure of public documents for a public hearing. It must be noted that these rulings were made prior to

the decision in the earlier O'Callaghan case, in which case the Tribunal was held to be in error in its decision as to confidentiality, so

the precise ruling on confidentially is not in itself in issue. What is in issue is whether the rulings assist the applicants' case.

In the opening statement the then Chairman of the Tribunal, before hearing applications for representation, addressed issues of

procedure, the investigative stage, confidentiality and disclosure of documents. The points made were:-

"1. I draw the attention of parties interested in the business of the Tribunal to the fact that the nature of the Tribunal is

primarily an inquisitorial rather than an adversarial one. Consequently the evidence before the Tribunal will be led by

Counsel on behalf of the Tribunal.

2. Any person whose interests are, in the opinion of the Tribunal, likely to be affected will be allowed such representation

as is necessary to protect those interests and such parties will be allowed to cross examine relevant witnesses.

3. All proceedings before the Tribunal will be conducted in a manner so as to ensure compliance with the requirements of

natural justice

4. In the first instance it is necessary for the Tribunal to carry out a considerable amount of investigative work. The

Tribunal has been engaged in this work since shortly before Christmas. In the course of this work a large volume of

material falls to be considered. The Tribunal has already received material from a number of sources and will be in contact

with persons and companies who may have relevant documentation and information.

5. The members of the Tribunal legal team will be available to provide assistance to any party seeking to make statements

or to forward documents to the Tribunal

6. The Tribunal earnestly hopes that all persons who have an interest in the business of the inquiry will co-operate fully in

the provision of information and documentation to enable the inquiry to be brought to an expeditious and successful

conclusion.

7. I fully appreciate concerns which persons wishing to assist the Tribunal may have in relation to the issues of personal

and commercial confidentiality. In order to protect these legitimate concerns I propose to adopt the following protocol in

regard to documents:-

(i) All original documents will be returned to their owners after the Tribunal has concluded its work.

(ii) All copies of documents with confidential, commercially sensitive or personal information will be destroyed after

the conclusion of the inquiry.

(iii) All documents will be stored in a secure location.

(iv) Confidential information not relevant to the inquiry will not be disclosed to any outside party. The only parties

who will have access to such documents will be the Chairman and the legal team to the Tribunal.

(v) Documents, which contain both confidential, personal or commercially sensitive information not relevant to the

inquiry, and other information, which is relevant, will have the irrelevant information blanked out.

(vi) Counsel for the Tribunal will be willing at all times to discuss any concerns any person may have concerning

confidential, personal or commercially sensitive information.

8. With regard to the question of public hearings it should be noted that under its terms of reference the Tribunal is

obliged in the first instance to carry out such preliminary investigations in private as are necessary to determine whether

sufficient evidence exists in relation to any of the terms of reference to warrant proceeding to a full public enquiry."

On 13th January, 1999 at 2.15 p.m. the Chairman stated:-

"This Tribunal in the course of its investigation has received in confidence a considerable volume of material. As with all

Tribunals, material is provided on the basis that its confidentiality will be maintained. It is only when a particular document

has been found by me to be relevant to an issue before me that it is circularised to persons other than the source from

which the document emanated. The confidentiality of the documents, which are deemed not to be relevant to the issues

before the Tribunal, remains."

On 14th February, 2000, having referred to some legal authorities, the Chairman stated:-

" In summary the functions and duties of the Tribunal are to inquire, to endeavour to seek out the truth and report to the

Oireachtas on the matters referred in the terms of reference. No party or person comes before the Tribunal as an accused

person, in other words, no person or party is on trial before the Tribunal and no person or party can be found guilty of a

criminal offence by the Tribunal. Finally, the Tribunal is inquisitional in nature unlike a court of law."

As to the general organisation and representation, the Chairman described the process, which included the following:-

" At the outset, it was decided to send detailed questionnaires to serving and former members of Dublin County Council,

Dublin Corporation, Dáil Eireann and Seanad Eireann, members and employees, past and present, of An Bord Pleanála and

Local Government Officials in an effort to elicit relevant information. 406 questionnaires were sent out to past and present

members of Dáil Eireann and Seanad Eireann of which 390 were returned completed. 200 questionnaires were sent out to

past and present members of the relevant Dublin Local Authorities of which 175 were returned completed. 138

questionnaires were sent out to employees and past and present members of An Bord Pleanála of which 135 were

returned completed. 514 questionnaires were sent out to Local Authority officials of the various Dublin Local Authorities of

which 422 were returned completed.

Following evaluation of the questionnaires, a large number of potential witnesses were identified. To-date, more than 210

persons have been interviewed by the Tribunal in this regard and hundreds more have been spoken to or communicated

with by members of the legal team. Following the amendment of the Terms of Reference, a further large number of

interviews were conducted in relation to matters arising under paragraphs A.5 and E.1 and E.2 of the Terms of Reference

as amended. Interviews in relation to matters arising from the Terms of Reference are continuing.

In addition to issuing the questionnaires and analysing the replies received, the Tribunal sought and obtained files and

records from planning authorities and others and sought and obtained copies of Garda files on earlier investigations carried

out by the Gardai into allegations of corruption in the planning process. The Tribunal sought to interview persons who

were believed to be in possession of information which might be of assistance to the Tribunal and this interview process is

continuing.

A passage from the 1944 Report of the Tribunal of Inquiry into Dealings in Great Southern Railways Stocks is equally

applicable to this Tribunal:-

" … for want of “parties” in the ordinary sense, the Tribunal itself had to assume the task of endeavouring to collect

evidence, and information which might lead to evidence. In so doing, it was necessary, in the first instance,

provisionally to accept statements at other than first hand and matters of hearsay which were, of course, not legal

evidence. This had to be done in an effort to trace such second-hand material and rumours, of which there was no

scarcity, to their original source – a tedious and frustrating process … "

The huge amount of documentation, and the method by which the Tribunal was dealing with this in a fast computer-based retrieval

system was described thus:-

"The Tribunal has received a huge number of documents and files from various planning authorities, government

departments and financial institutions within the State. In some cases, the Tribunal has received documentation from

financial institutions outside the State, where the consent of the relevant parties has been forthcoming. This

documentation has had to be considered and analysed in detail by the Tribunal as part of its confidential preliminary

inquiries in private and this process is continuing.

Due to the huge volume of documentation involved, the Tribunal was obliged to develop a fast computer-based document

retrieval system. The document retrieval system, designed and developed by this Tribunal, has since been used by the

Dáil Public Accounts Committee, is at present being used by the Lindsay Inquiry and by the Inquiry being conducted by

Inspectors appointed by the High Court to inquire into Ansbacher (Cayman) Limited. The Tribunal’s work in relation to the

document retrieval system has been publicly acknowledged by the Dáil Public Accounts Committee."

The complexity of dealing with applications for disclosure, and the Tribunal's response, may be illustrated in the rulings of the 20th

November, 2002 and the 4th of February, 2003.

On the 24th March, 2004, in relation to Mr. Tom Gilmartin, the Tribunal made a ruling:-

"I will now read the ruling of the Tribunal. This ruling is in response to requests made by a number of parties to whom

representation has been granted that the Tribunal should release to them all information, statements or other documents

or information provided to the Tribunal by Mr. Gilmartin and the same be circulated to the interested parties so as to

enable Mr. Gilmartin to be cross-examined in relation thereto. In accordance with its established procedure, the Tribunal

has in advance of Mr. Gilmartin's evidence already circulated to such parties Mr. Gilmartin's narrative statement of the

facts upon which the Tribunal has determined that a public hearing is merited.

In addition to this statement, the Tribunal has further documentation which includes details of communications between

Mr. Gilmartin and his solicitors and members of the Tribunal's team. In addition, the Tribunal has been provided with a

document prepared following a question and answer interview between Mr. Noel Smyth, a solicitor then acting on behalf

of Mr. Gilmartin, and Mr. Gilmartin. This document was provided to the Tribunal by Mr. Smyth at the request of Mr.

Gilmartin in 1998.

The Tribunal legal team was neither present at this interview nor instrumental in the preparation of the record of such

interview. The document was provided to the Tribunal upon express terms as to confidentiality which would be set out in

detail later in this ruling.

The general issue of the confidentiality of documentation and information furnished to the Tribunal in the course of its

inquiries has already been ruled upon and explained in detail in the Tribunal’s initial ruling on confidentiality delivered at the

commencement of the Tribunal on the 14th of January 1998 and has been elaborated upon in subsequent rulings of the

Tribunal, including those delivered on the 20th of January 1999, the 20th of November 2002, and the 4th of February

2003.

The Tribunal recognises that it has a duty of confidentiality to persons from whom it has received documents or

information in confidence. Documents will only be circulated where the Tribunal has determined that they are relevant,

admissible and probative. Save in exceptional circumstances, the Tribunal will not circulate documents or information

where such documents or information was provided to the Tribunal upon specific terms or conditions or limitations imposed

or agreed at the time that the documentation or information was furnished to the Tribunal.

The Tribunal remains at all times the appropriate authority to decide what documentation is relevant, admissible and/or

probative in its proceedings, and in particular to decide whether any exceptional circumstances exist such as to warrant a

departure from the established rules of confidentiality in any particular instance.

The documents now sought to be considered fall into two categories. Firstly, those prepared in the course of the private

investigative stage of the inquiry by members of the Tribunal’s legal team following interview or contact with Mr. Gilmartin

and, secondly, the documents provided by Mr. Gilmartin’s then solicitor, Mr. Smyth, to the Tribunal.

The Tribunal has determined that the first category of documents remain confidential to the Tribunal and have ruled that

they will not b circulated. The Tribunal is satisfied that there are no exceptional circumstances in existence which merit a

departure form the Tribunal’s established procedure.

In relation to the second category of documents, the Tribunal notes that this documentation was provided to the Tribunal

upon specific terms set out by Mr. Gilmartin’s then solicitor and are quoted verbatim as follows:

1. It is a draft preliminary statement that may be subject to changes, amendments and/or correction. Tom Gilmartin

is furnishing same as an aid to the Tribunal without giving any commitment in respect of confirming or ratifying

same.

2. Tom Gilmartin reserves the right to make any amendments, corrections or changes and/or to withdraw any

allegations set out therein which he may on his sole and absolute discretion based on further inquiries he is making,

considered fit. He wishes to check and recheck a number of issues and to try and find documentation in respect of

various issues, some of which he believes may have been destroyed or lost.

3. He is relying upon the various assurances given to him. Please treat this on this basis and on the basis that same

is furnished on a strictly private and confidential basis without being disclosed to any third party.”

The Tribunal is satisfied, having reviewed the circumstances in which this second category of documentation was

furnished to the Tribunal, that it is subject to specific assurances on confidentiality and nondisclosure by the Tribunal.

The Tribunal does not at this time consider that there are circumstances which merit or which allow for a departure from

the terms upon which the document was provided to the Tribunal and, accordingly, refuses the application for its

circulation.

The Tribunal is mindful of the fact that it is essential for the efficacy of the Tribunal’s investigation that it has the

capacity to treat documentation provided to it in confidence on a strictly confidential basis. Without such capacity,

persons providing information to the Tribunal would undoubtedly be dissuaded from providing information which is

necessary to the Tribunal to carry out its task. The conduct of private interviews by members of the Tribunal’s legal

team, with potential witnesses, and the receipt of information and documentation of a strictly confidential basis are part

and parcel of the investigative and information-gathering process with which the Tribunal is charged. It is only in

exceptional circumstances that the Tribunal will consider departing from it established procedure."

In an Explanatory Memorandum of January, 2004, referring to the then pending phase of public sittings of the Tribunal concerning the

business dealings of Mr. Tom Gilmartin between 1987 - 1990, taking place under paragraph A.5 of the Terms of Reference of the

Tribunal, as amended, to be known as "Arlington/Quarryvale", the Tribunal made a ruling as to the procedure:-

"Procedure

The public inquiry involves the taking of oral evidence of witness on oath and, in the course thereof, the examination of

relevant documents obtained by the Tribunal. The Tribunal conducts its inquiries in "modules" relating to specific parcels

of lands or other specific subjects.

The following steps are involved:-

(a) In the preliminary investigations in private documents assembled by the tribunal in the course of its preliminary

investigations in private and information are considered for their relevance to the public hearings;

(b) Those documents relevant to the subject matter of the pubic hearings are arranged in the form of a paginated

"Brief" which is now furnished in advance to persons likely to be affected by the oral;

(c) Each witness to be called to give evidence is asked by the Tribunal to furnish a written narrative statement

setting out, in chronological order, their position in relation to the matters under inquiry by the Tribunal;

(d) Most witnesses agree to furnish a narrative statement so that in advance of their evidence, the Tribunal is in a

position to consider the evidence they will give and to furnish a copy of the statement to any person whose

interests are likely to be affected. A book of narrative statements is circulated in advance of the hearings;

(e) Prior to the calling of witnesses in any module, Counsel to the Tribunal outlines in an opening statement the

subject matter of the module and any party may respond to the opening statement before the calling of witnesses

commences;

(f) A witness, called to give evidence, is first examined by Counsel to the Tribunal (i.e. every witness is a Tribunal

witness);

(g) Following examination of a witness by the Tribunal, that witness may be re-examined by his/her own legal

representative or volunteer further information on oath for the purpose of adducing any additional information

considered relevant to the inquiries of the Tribunal;

(h) A person who considers that a witness is giving evidence which affects him/her/it is entitled to cross-examine

that witness on that evidence;

(i) The documents in the Brief are presented in public as and when they apply to the evidence of a witness;

(j) The Brief is supplemented, following its initial circulation, as and when new documents and/or new issues come

to light. The Book of Witness Statements is similarly updated;

(k) Not everyone who believes they are affected by the inquiries of the Tribunal are granted a right of legal

representation before the Tribunal but, instead, the Tribunal requests that an applicant for legal representation

explain the basis upon which they say they should have a legal representative present at a particular part of the

inquiries of the Tribunal;

(l) All issues relating to costs incurred by persons involved in the inquiries of the Tribunal (whether involved in the

public inquiry, in the preliminary investigations in private, or in both) are decided by the Tribunal at its discretion on

foot of the Tribunals Inquiry (Evidence) Acts.

The foregoing is not intended to be a comprehensive guide, but rather to outline what takes place. If you have any

queries in relation to the foregoing, please do not hesitate to contact me or another member of the legal team."

This is only a small example of many rulings and procedures, established by the Tribunal. They are not illustrated to consider whether

they are wrong or right. Rather they are described to show the Tribunal's general approach. Having considered them carefully I am

satisfied that they illustrate that:-

(a) Care and consideration was taken in the drafting of the rules.

(b) The different stages of the Tribunal are reflected in the rulings.

(c) The investigative stage, so different from any proceedings in a court of law, is addressed carefully. It is at this stage

the Tribunal itself investigates whether a public hearing/inquiry is merited.

(d) The issue of confidentiality was addressed. These rulings were made before the earlier O'Callaghan case which found

that the Tribunal had erred. But these rulings are noted not for their inherent ruling but for the approach of the Tribunal

to the applicants, to consider whether there is any pattern of bias, partiality or unfairness.

(e) The vast volume of documentation is referred to and the methods for dealing with it addressed.

(f) The issue of the credibility of witnesses is addressed and it is repeatedly stated by the Tribunal that no decision on

the credibility of a witness is to be reached prior to the conclusion of the public hearing.

(g) A policy of confidentiality was established.

(h) A policy of disclosure was established and applied.

(i) A policy of assistance was established at the commencement of the Tribunal. I shall return to this issue later also.

On this aspect of the workings of the Tribunal, I am satisfied that the general rules and procedures do not indicate any bias,

inequality, partiality or unfairness on behalf of the Tribunal against the applicants or in favour of Mr. Tom Gilmartin.

13. Stages of a Tribunal

A tribunal works by way of a number of different stages. The very nature and process of its work distinguishes it from a court of law.

First, having been established, it has an investigative stage. This, of its very nature, is intrusive on people's rights and is only required

by the Dáil because of the deemed necessity of establishing such a tribunal. This necessity was described in the report of the Royal

Commission on Tribunals of Inquiry, 1966, in the United Kingdom under the Chairmanship of Salmon L.J., hereinafter referred to as "the

Salmon Report" in paragraph 27 and 28 as follows:-

"27. The exceptional inquisitorial powers conferred upon a Tribunal of Inquiry under the Act of 1921 necessarily expose

the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and

to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these

reasons we are strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used

for matters of local or minor public importance but always be confined to matters of vital public importance concerning

which there is something in the nature of a nation-wide crisis of confidence. In such cases we consider that no other

method of investigation would be adequate.

28. Normally persons cannot be brought before a tribunal and questioned save in civil or criminal proceedings. Such

proceedings are hedged around by long standing and effective safeguards to protect the individual. The inquisitorial

procedure is alien to the concept of justice generally accepted in the United Kingdom. There are, however, exceptional

cases in which such procedures must be used to preserve the purity and integrity of our public life without which a

successful democracy is impossible. It is essential that on the very rare occasions when crises of public confidence occur,

the evil, if it exists, shall be exposed so that it may be rooted out or if it does not exist, the public shall be satisfied that

in reality there is no substance in the prevalent rumours and suspicions by which they have been disturbed. We are

satisfied that this would be difficult if not impossible without public investigation by an inquisitorial Tribunal possessing the

powers conferred by the Act of 1921. Such a Tribunal is appointed by Parliament to inquire and report. The task of

inquiring cannot be delegated by the Tribunal for it is the Tribunal which is appointed to inquire as well as to report. The

public reposes its confidence not in some other body or person but in the Tribunal to make and direct all the necessary

searching investigations and to produce the witnesses in order to arrive at the truth. It is only thus that public

confidence can be fully restored."

The stages of the work of a tribunal was analysed by Hamilton C.J. in Haughey v. Moriarty [1999] 3 I.R. 1 at p. 54 where, having

referred to the Salmon Report, and the specific paragraphs quoted above, he stated:

"Those considerations are also applicable in this jurisdiction. There are various models which may be availed of by the

Oireachtas and the executive in the form of commissions or committees, in the latter case, either within the Oireachtas or

external to it, for the purpose of advising them as to the desirability of legislation on particular topics. The essential

purpose, however, for which a tribunal is established under the Act of 1921 is to ascertain the facts as to the matters of

urgent public importance which it is to inquire into and report those findings to parliament or the relevant minister."

Hamilton C.J. described the stages of a tribunal, at p. 74, as follows:-

"A tribunal of inquiry of this nature involves the following stages:

1. a preliminary investigation of the evidence available;

2. the determination by the tribunal of what is considers to be evidence relevant to the matters into which it is

obliged to inquire;

3. the service of such evidence on persons likely to be affected thereby;

4. the public hearing of witnesses in regard to such evidence, and the cross-examination of such witnesses by or on

behalf of persons affected thereby;

5. the preparation of a report and the making of recommendations based on the facts established at such public

hearing."

At issue in this case are matters arising in stages 1, 2 and 3. The matters raised were set out in detail in paragraph 5 (a) to (y) of

the grounds for the judicial review.

I regard it of significance that this judicial review relates to events rooted in the investigative stage of the inquiry by the Tribunal. At

such a stage of the work of a Tribunal the Tribunal is conducting its inquiry into information in private. As Hamilton C.J. stated in

Haughey v. Moriarty [1999] 3 I.R. 1 at pp. 74-75:-

"Neither can it be submitted that the public or any portion thereof are entitled to be present at the preliminary

investigation of the evidence for the purposes of ascertaining whether it is relevant or not.

If these inquiries in this investigation were to be held in public it would be in breach of fair procedures because many of

the matters investigated may prove to have no substance and the investigation thereof in public would unjustifiably

encroach on the constitutional rights of the person or persons affected thereby...

The Court is satisfied that the Tribunal was entitled to conduct this preliminary investigation in private for the purpose of

ascertaining what evidence was relevant and to enable the Tribunal in due course to serve copies of such evidence on

the plaintiffs which it is obliged to do in order to enable them to exercise their constitutional right to be present at the

hearing of the Tribunal where such witnesses will give evidence on oath and be liable to cross-examination."

In commenting on this statement the Law Reform Commission's Consultation Paper on Public Inquiries Including Tribunals of Inquiry

(March 2003) noted:-

"It seems that the word "evidence" was not used in a particularly technical sense in this passage. This is unsurprising

since it formed part of a judgment in which the different issue of the entitlement of persons to be present at proceedings

of a tribunal was being considered. There is no indication that the Supreme Court intended to reject any distinction

between "information" and "evidence". The Commission suggest that in the first three stages "information" could be

substituted for "evidence" without doing any violence to the passage."

I am satisfied that this is the correct analysis and that in the first three stages of the work of a tribunal it is considering information

to enable it to proceed to the giving of evidence at a later stage.

It is a matter for the Tribunal as to whether to proceed to public hearing. In Bailey v. Flood, (Unreported, High Court, 6th March,

2000) Morris P. considered the test, to be applied in reviewing a decision of a Tribunal as to whether evidence was relevant and

whether it should be heard in public, as being whether the decision plainly and unambiguously flies in the fact of fundamental reason

and common sense: State (Keegan) v. Stardust Victims Compensation Tribunal [1986] 1 I.R. 642; O'Keefe v. An Bord Pleanála [1993]

1 I.R.39. At p. 27, in Bailey Morris P. stated:-

"The parties have proposed and I am prepared to accept this as the correct statement of the test that the Court ought

to apply when reviewing a decision that impinges on constitutionally guaranteed rights. However, it must at all time be

borne in mind that the jurisdiction of this Court is limited to the review of the decision. The fact that the constitutional

rights of a person affected by the decision are implicated is not a licence for the Court to stand in the shoes of the

decision-maker and to speculate as to whether or not it would have come to the same conclusion. The function of the

High Court on an application for judicial review is limited to determining whether or not the impugned decision was legal,

not whether or not is was correct. The freedom to exercise a discretion necessarily entails the freedom to get it wrong;

this does not make the decision unlawful. Consideration of the alternative position can only confirm this view. The

effective administration of a tribunal of inquiry would be impossible if it were compelled at every turn to justify its actions

to the High Court. The legislature has entrusted a broad measure of discretion to such tribunals, including the discretion

to decide how the inquiry will proceed and what evidence will be admitted, and it is no part of the duty of this Court to

whittle down that discretion, with the inevitable deleterious effects that would have the effective discharge of the

important public tasks with which tribunals of inquiry are burdened."

I am satisfied that this is the correct approach, and adopt and apply it where relevant to the current case. The Court does not stand

in the shoes of the decision maker and speculate if it would make the same decision. The jurisdiction of the Court is limited to review

the process of decision making. The Oireachtas has given to the Tribunal a broad discretion.

14. Law

The fundamental legal issues before the Court are bias and unfair procedures. There is a degree of overlap on the facts of the case.

It was part of the applicants' case that the decisions of the Tribunal refusing to disclose matters (now disclosed as a consequence of

the earlier O'Callaghan case) indicated decisions on relevance or consistency from which a reasonable person would believe that the

Tribunal had decided that Mr. Tom Gilmartin was a credible witness and Mr. Owen O'Callaghan was not, and that this established

objective bias, the appearance of bias.

Incomplete decision making process

It is very relevant that the decision making process of the Tribunal is not yet complete, that it is still at the investigative stage and

the stage of public hearings. At issue are matters relevant to the Quarryvale I Module, which has not yet completed public hearings.

As a consequence of this Court's decision in the earlier O'Callaghan case, the applicants have documents which they may now use in

this module, especially for the cross-examination of Mr. Tom Gilmartin. Any analysis of the situation has to be on the basis that the

Tribunal is still at this stage of the process and that the entirety of the process should be considered in determining the principles of

law in issue. In Ainsworth v. Criminal Justice Commission (1992) 175 C.L.R. 564, Mason C.J. stated:

"It is not in doubt that where a decision-making process involves different steps or stages before a final decision is made,

the requirements of natural justice are satisfied if the decision-making process viewed in its entirety entrails procedural

fairness."

I adopt and apply this as an appropriate approach and shall return to its application to the circumstances of this case at a later stage

in the judgment.

Unfair, partial and bias

While the applicants in the written proceedings made submissions as to allegedly unfair, unequal, partial and biased decisions, in

essence the claim is one of objective bias. On this appeal it was not alleged that there was subjective, or actual, bias by the

Tribunal, although counsel for the Tribunal did suggest that there was a claim of actual bias 'bubbling' under the surface. What is

alleged on behalf of the applicants is objective bias, and in fact it is the specific bias of prejudgment. This is the claim of unfair

procedures, in that it is submitted that by its previous decisions the Tribunal has favoured Mr. Tom Gilmartin and that the applicants

no longer consider that they will obtain fair procedures from the Tribunal. From whatever aspect one considers the submissions, the

nub of the claim is one of objective bias by the Tribunal, of prejudgment.

The law on objective bias has been well established in Ireland. In O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419 at p. 438

Finlay C.J. stated:

"The bias alleged in this case is a bias consisting of pre-judgment. The plaintiff's case, in very brief summary, is that a

consideration of the question of the making of the decision as to the continuance or termination of his service as a

consultant in the hospital cannot fairly be carried out by reason of the fact that the persons who should carry it out have

pre-judged his case. There is no suggestion of personal animosity, personal gain or personal self-interest in any member of

the board as a form of bias. The sole form of bias alleged is pre-judgment . . .

I am satisfied that the proper standard to be applied by this Court which does not appear to be wholly different, though it

may be subtly different from the standard which was applied in the High court, is the question as to whether a person in

the position of the plaintiff, Mr. O'Neill, in this case who was a reasonable man, should apprehend that his chance of a fair

and independent hearing of the question as to whether his services should be continued or terminated does not exist by

reason of the pre-judgment of the issues which are involved in that by the members of the board. That in my view is the

proper test to be applied in this case, and it fulfils what I understand from the authorities to be the test which has been

accepted in this country and by this Court in relation to a case of this description."

That standard was applied in Dublin Wellwoman Centre Ltd. v. Ireland [1995] 1 I.L.R.M. 408 where I stated at p. 420:

"That standard is applicable to this case. In the High Court there was no suggestion of personal favour or personal

interest, i.e. subjective bias of the learned High Court judge. The actual state of mind of the judge was and is not in

issue. What was and is in issue is the objective test: as to whether a person in the position of the appellant in this case,

being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue

does not exist by reason of the previous non-judicial position, statements and actions of the learned High Court judge on

issues which are at the kernel of this case."

The test applies the view of the reasonable person. It is an objective test. It refers to a person with knowledge of all the relevant

circumstances of the case. An assumption may be made that a party is such a reasonable person, however, the test does not refer

to the subjective view of a party, or to a party who is a reasonable person. The test refers to the objective view of a reasonable

person. This is clear from the famous dictum of Lord Hewart C.J. in R. v. Sussex Justices, ex parte McCarthy [1924] 1 K.B. 256 at p.

259:

". . . a long line of cases shows that it is not merely of some importance but is of fundamental importance that justice

should not only be done, but should manifestly and undoubtedly be seen to be done. The question therefore is not

whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have

made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to

the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what

might appear to be done. Nothing is to be done which creates even a suspicion that there has been an improper

interference with the course of justice."

The appearance of what is being done is critical. It is essential that justice be seen to be done. Therefore, the test refers to a

reasonable apprehension by a reasonable person, who has knowledge of all the facts, who sees what is being done. It is this

reasonable person's objective view which is the test. This is the criterion which is required to be applied. It is not the apprehension of

a party.

At one stage it appeared that a case might be advanced by the applicants on the basis of previous erroneous decisions made by the

Tribunal. However, quite correctly, this argument was not advanced by counsel at the oral hearing. For, a series of erroneous

decisions is not a basis upon which to ground bias. Such a claim was dismissed in Orange v. Director of Telecoms [2000] 4 I.R. 159,

where Geoghegan J. stated at p. 251:

"It seems clear from the case law in Ireland and England that an allegation of bias must be made on foot of circumstances

outside the actual decisions made in the case itself. I would accept that in a situation where there was an arguable case

of bias based on traditional proofs the added factor of cumulative wrong decisions all one way might be tantamount to

corroboration of alleged bias and be a relevant factor in that restricted sense in the proving of bias. But of itself and by

itself it can never be evidence of bias."

In Spin Communication Limited v. I.R.T.C. [2001] 4 I.R. 411 Murray J., as he then was, referred to the distinction to be drawn

between the existence of factors external to the decision making process and the manner in which that process is conducted. He

stated that external factors should not affect the decision nor should they appear to affect the decision so as to give rise to a

reasonable apprehension of bias. Referring to the judgments of Keane C.J. and Barron J. in Orange he stated at p. 433:

"My understanding of the judgments of Keane C.J. and Barron J. is that should a decision-maker pursue a line of enquiry

concerning a matter relevant to the decision to be made in a tendentious or unfair manner, this does not in itself permit,

as a matter of law, the decision to be impugned on the grounds of bias but rather it falls to be reviewed in accordance

with the requirements of fair procedures or natural justice. This is because the ‘factor’ involved is internal and not

external or extraneous to the decision making process."

Thus erroneous decisions made by the Tribunal previously, in not disclosing the documents, the subject of the earlier O'Callaghan

case, may not be a basis for a successful claim of objective bias.

Thus, expressly referring to this line of case law, the test to be applied in determining whether there is objective bias is whether a

reasonable person, with full knowledge of the circumstances, would consider that there are external factors which would cause the

decision maker to make a particular decision, or would inhibit him from making a decision impartially, as would give rise to a reasonable

apprehension of bias.

In this case the essence of the applicants' submissions is that there has been prejudgment by the Tribunal. The test is similar to that

set out above for objective bias, it is a particular aspect of objective bias. In this case it was submitted that the (erroneous)

decisions indicate a decision on credibility, that it is a case of prejudgment. That in the circumstances a reasonable person would

have a reasonable apprehension that the Tribunal had decided the issue of the credibility of Mr. Tom Gilmartin and Mr. Owen

O'Callaghan in favour of the credibility of Mr. Tom Gilmartin.

In addition to the law previously cited, and relevant, two further cases may be noted. Thus, in R. v. Watson, ex parte Armstrong,

[1976] 136 CLR 248 where a judge had stated that he would not accept the evidence of the parties without corroboration, it was

held that the judge was not entitled to form a settled view of the credibility of witnesses but that a reasonable person observing

would have considered that he had done so. State (Hegarty) v. Winters [1956] I.R. 320 was also cited to the Court. In that case an

arbitrator visited the lands he was assessing with a witness of one party but not of the other. This Court determined that the

fundamental rule that not only must justice be done, but that it must be seen to be done, had been broken and the award was not

allowed to stand.

15. Burden of proof

The burden of proof arises in the framework of the application for judicial review by the applicants. Counsel for the Tribunal submitted

that the Court should ask the question, of each of the seven specific examples submitted:-

(a) Is this a decision by the Tribunal which adjudicated upon the credibility of Mr. Tom Gilmartin?

(b) Is it a decision in favour of Mr. Tom Gilmartin's credibility and contrary to Mr. Owen O'Callaghan?

(c) Even if it is such a decision, is there some extra ingredient which would cause a reasonable man to believe that the

Tribunal had closed its mind on credibility?

It was submitted that these are the criteria by which to determine whether there were circumstances of a reasonable apprehension

of bias or prejudgment by the Tribunal. Whether the burden needs to be quite so pedantically stated and applied, there is no doubt

but that the burden rests upon the applicants to prove their case on the balance of probabilities. They carry the onus of proof. The

terms of the legal test to be applied has been stated previously.

16. Judicial Review

This appeal arises within the framework of an application for judicial review. The procedure by way of judicial review is not an appeal

on the facts and law. In this case the applicants have sought an order of prohibition, prohibiting the Tribunal from proceeding with

any further investigating or making any findings in relation to the applicants, and they have also sought an order of certiorari

quashing the Tribunal's decision refusing to desist from further investigating the applicants.

The nature of the remedy of certiorari was described by O'Higgins C.J. in State (Abenglen Properties Ltd) v. Dublin Corporation [1984]

I.R. 381 at 392, as follows:-

"To-day it is the great remedy available to citizens, on application to the High Court, when any body or tribunal (be it a

court or otherwise), having legal authority to affect their rights and having a duty to act judicially in accordance with the

law and the Constitution, acts in excess of legal authority or contrary to its duty. Despite this development and

extension, however, certiorari still retains its essential features. Its purpose is to supervise the exercise of jurisdiction by

such bodies or tribunals and to control any usurpation or action in excess of jurisdiction. It is not available to correct

errors or to review decisions or to make the High Court a court of appeal from the decisions complained of. In addition it

remains a discretionary remedy."

This describes clearly the necessary approach of a court. The Court is asked to supervise decisions of the Tribunal and to control any

of its actions in excess of jurisdiction. This process is not a procedure by which to correct errors, nor is it a court of appeal. Notably,

it is also a discretionary remedy.

The learned trial judge made some general oberservations on the nature of judicial review:-

(a) Judicial review is not an appeal process (O'Keeffe v An Bord Pleanála [1993] 1 I.R. 39 at 71).

(b) The Tribunal has been found in error in [the earlier O'Callaghan case]; the policy which was adopted by the Tribunal

long predated the commencement of hearings involving Mr. Gilmartin or Mr. O'Callaghan: It had been universally applied to

everyone prior to the earlier O'Callaghan case

(c) It is inappropriate for the court to examine in minute detail a large number of issues which relate to factual events or

to carry out a microscopic investigation in relation to decisions made by the Tribunal in the course of its deliberations in

relation to particular documents or events:-

"We do no service to the public in general if we subject every decision of every administrative Tribunal to minute

analysis."

(Per O'Flaherty J. in Faulkner -v-Minister for Industry and Commerce)

(d) Procedural decisions of the Tribunal are reviewable - and a fortiori post the earlier O'Callaghan case must be so.

(e) The individual decisions challenged must be examined only to the extent necessary to determine whether such

indicates a particular frame of mind by the Tribunal.

(f) A court can strike down a decision of a Tribunal which is in error - it does not substitute its own view for that of the

decision maker, even if constitutional rights are affected -

"It is not a licence for the courts to stand in the shoes of the decision maker".

(Per Morris P. in Bailey -v-Flood [2000] IECH 169).

(g) A procedural or policy error on the part of the Tribunal which constituted a failure or infringed In re Haughey rights (in

according fair procedures and constitutional justice) does not ipso facto amount to bias on the part of the Tribunal or any

of its members.

I would adopt and apply these principles to the appeal.

17. Seven specific examples

While the pleadings refer to over 50 documents, now disclosed to the applicants as a consequence of the earlier O'Callaghan case,

which it is alleged illustrate the applicants' claim of unfairness, inequality, partiality and/or bias, counsel for the applicants did not ask

the Court to make a microscopic examination of each of such matters. Seven matters were advanced and submitted to be the height

of the applicants' case and to show unfairness, partiality and bias. It was submitted that a reasonable person would consider that the

credibility of Mr. Tom Gilmartin and the applicants, but essentially Mr. Owen O'Callaghan, had been prejudged and that to proceed

further with the work of the Tribunal in relation to the applicants would be unfair and biased.

(i) Buswell's Hotel and Councillor O'Hanrahan "Did he tap you" Judge Keys view

On behalf of the applicants it was submitted that in evidence Mr. Tom Gilmartin had testified to the Tribunal that he attended a

meeting with Councillor Finbarr Hanrahan at Buswells Hotel in Dublin on 28th December, 1988. He said that when he entered he

noticed Mr. Owen O'Callaghan, Mr. John Deane and Mr. Liam Lawlor present at the bar, with Mr. O'Hanrahan sitting alone at another

part of the bar. He said that Mr. O'Hanrahan requested £100,000 from him and that when he, Mr. Tom Gilmartin, left Buswells he was

followed out by Mr. Owen O'Callaghan, who asked him "Did he tap you?"

Mr. Owen O'Callaghan's evidence was that he was indeed present as was Mr. John Deane - but that Mr. Liam Lawlor was not present.

He said that he was asked to be present by Mr. Tom Gilmartin who asked him to point out Mr. Finbarr Hanrahan. Mr. Owen O'Callaghan

said that he never said "Did he tap you?"

When the case was opened to the Tribunal, John Gallagher SC told the Tribunal that Mr. Tom Gilmartin would testify that following

this meeting in "late December 1988" and while he was on his way out of the bar, Mr. Owen O'Callaghan said to him, "Did he tap you?"

Mr. Tom Gilmartin, for his part, testified that as he was walking out, Mr. Owen O'Callaghan turned and said to him "Did he tap you?" to

which he replied "What do you think?" and that he then walked up the stairs and out of the building. He was specifically invited by

counsel by the Tribunal to say what he understood by the words "Did he tap you?", to which he answered "I understood that as if he

had tapped me for money, asked me for money".

He was cross-examined on these allegations and it was put to him that this was a word that Mr. Owen O'Callaghan would not use. At

one stage an objection was made to Mr. Tom Gilmartin being pressed in cross-examination. It was submitted that the Tribunal's

interventions at this stage demonstrated a very keen interest on the part of the Tribunal as to the detail of what happened, including

what happened after the meeting, and suggested that the Tribunal regarded this level of detail as important.

During that objection, counsel for Mr. Owen O'Callaghan pointed out that Mr. Tom Gilmartin's credibility was being challenged on the

basis of different versions of this alleged event given at different times.

It was submitted that during that intervention, Judge Keys commented "I have no doubt your client knows Mr. Hanrahan quite well".

However, the Tribunal pointed out, in reply, that the words "Does he?" followed, but did not come out on the transcript. Counsel for

Mr. Owen O'Callaghan pointed out in reply "He didn't know him quite well at the time but he knew him to see at the time". Judge Keys

followed this up and asked counsel " "Well, did he check out the story with Mr. Hanrahan at a later stage?" to which counsel replied "I

don't think so". Judge Keys observed "He didn't. That's somewhat surprising".

On behalf of Mr. Owen O'Callaghan it was stated that both he and Mr. John Deane were concerned about the remark . . . as indicating

a certain view that had already been formed by at least one member of the Tribunal of Mr. Owen O'Callaghan and his alleged

connections with various Councillors at a very early stage in the Tribunal's inquiry and before he had even testified. He stated that

they were inclined to pass it off as an isolated remark to which it might be unwise to attach too much significance, but that it now

appears to them, from the material now disclosed by the Tribunal, that apart from the additional material that the Tribunal had an

abundance of information emanating from Mr. Tom Gilmartin which would reasonably cause Tribunal Members to form that view. Mr.

Owen O'Callaghan also deposed that it seemed clear that Judge Keys appeared to attribute significance to the attribution of the

words "Did he tap you?" to Mr. Owen O'Callaghan and appeared to express pre-judgment of Mr. Owen O'Callaghan's state of

knowledge of Councillor O'Hanrahan. The Chairman commented that counsel for Mr. Owen O'Callaghan was, in particular, challenging

the suggestion that Mr. Owen O'Callaghan used the words "Did he tap you?". The Chairman showed interest in the use of those words

by asking questions to Mr. Tom Gilmartin.

In direct testimony, Mr. John Deane was asked whether or not Mr. Tom Gilmartin had asked that question. He said it did not happen.

Mr. Owen O'Callaghan was asked about it and denied it also.

On behalf of the applicants it was submitted that the documents now produced show that Mr. Tom Gilmartin had spoken about this

meeting on 30th September, 1998, at a meeting in which John Gallagher SC, Pat Hanratty SC and Des O'Neill BL were present. At that

meeting Mr. Tom Gilmartin was noted as saying:-

"I met O'Hanrahan in Buswells Hotel one day in January 1989 at 4.30pm. I met Seamus Brennan on the following day. On

Wednesday 29th January 1989, I met O'Hanrahan. O'Callaghan was standing at the bar with Ambrose Kelly. I was told I

had to meet Councillors and this was arranged."

It was submitted that this is entirely inconsistent with the evidence of Mr. Tom Gilmartin to the Tribunal. In his evidence the meeting

was allegedly held on 28th December, 1988. Much cross-examination of various parties (with attendant costs) concerned the

possibility of them being present over the Christmas period for such a meeting. Indeed, Mr. Tom Gilmartin had produced to the

Tribunal a diary entry showing an appointment with Mr. O'Hanrahan on 28th December, 1988. The case had been open by John

Gallagher SC on the basis that Mr. Gilmartin would tell the Tribunal that the meeting was "in late December 1988". When he examined

him for the Tribunal, he referred in the question to the meeting taking place on a date "you believe on 28th December 1988". He then

went on to lead the witness to the effect that the meeting (amongst others) was "on that date". In the course of his replies, Mr. Tom

Gilmartin became adamant about the date of the meeting, "Absolutely, 100% certain. Mr. O'Callaghan demanded a meeting on 28th

December".

It was pointed out that there is no reference to Mr. Liam Lawlor being at that meeting, and that there was no reference to an

allegation that Mr. O'Hanrahan allegedly requested £100,000 from Tom Gilmartin at the meeting. More importantly, there is no

reference to the uttering of the words "Did he tap you?"

Furthermore, it was submitted that the fact that Mr. Tom Gilmartin made this allegation for the first time in his statement of 25th May

2001, when he had a large number of opportunities to mention it during earlier discussions with the Tribunal, is clearly relevant to the

credibility of the allegations.

It was submitted by counsel for the applicants that the attribution of the words "Did he tap you?" to Mr. Owen O'Callaghan, carries

with it the clear inference that Mr. Owen O'Callaghan was well aware at the time that Councillors were seeking bribes and, if he was

not aware that the purpose of the meeting with Mr. Tom Gilmartin was to solicit a bribe from him, that he was at the very least aware

that it was likely to happen. It was submitted that the evidence was lead by Tribunal counsel for that purpose and that not only was

it so lead, but that the Tribunal did not disclose Mr. Tom Gilmartin's earlier statement to the applicants.

It was submitted that the date of the meeting concerning certain persons and Mr. Finbarr Hanrahan in Buswell's Hotel was critical.

That Mr. Tom Gilmartin had virtually no documents, except a diary. Mr. Owen O'Callaghan and Mr. Deane had denied that the meeting

could possibly have taken place on that date. It was submitted that the later note of the meeting affects the status and evidential

value of the diary. It was submitted that the failure to refer to this document and its content was a desire to protect the credibility

of Mr. Tom Gilmartin by the Tribunal.

Mr. O'Callaghan deposed that:

"It now appears that the Tribunal has reached a conclusion herein which is adverse to me and did so without any notice

to me of this issue. The Tribunal states at paragraph 155 that it did not regard the existence of a difference in dates as

significant. It appears to have reached this conclusion without proffering to me relevant information and appears to have

omitted to consider the fact that the reason why the date is significant is that there is a substantial difference between

the parties about the accounts of this meeting. Mr. Gilmartin is incorrect on this date then it has implications for the

credibility of his subsequent account of the meeting and his testimony generally. The Tribunal has now determined that

the existence of a difference in dates is not significant. This conclusion has been reached without affording me an

opportunity to cross-examine Mr. Gilmartin on the documents which have recently been made available to me. I regard

this conclusion as serious and fundamental and I do not understand how cross-examination at this stage would be of

assistance to me in circumstances where the Tribunal has already formed this conclusion in relation to a very important

matter."

The evidence was that the Tribunal took the view that as there was no dispute between the parties that the meeting had taken

place the Tribunal did not regard the existence of a difference in dates as significant. Consequently, the Tribunal considered that the

fact that Mr. Tom Gilmartin may have suggested that the meeting occurred at the different date to the one mentioned in his

testimony did not constitute a significant or glaring inconsistency. In addition the Tribunal considered that some of the material in

respect of this allegation was already in Mr. Gilmartin's statement of intended evidence. Furthermore, insofar as it appears to be

alleged that the Tribunal somehow concealed from the applicants Mr. Tom Gilmartin's attribution of the words 'Did he tap you?' to Mr.

O'Callaghan, those words are contained in paragraph 19 of Mr. Gilmartin's narrative statement. As regards the claim that the note did

not contain all the information about which Mr. Tom Gilmartin subsequently gave evidence, and thus constituted a significant or

glaring inconsistency, the Tribunal was of the view that on the face of the memorandum it appeared that there was no in-depth

discussion of the Buswells incident at the meeting, that the meeting with Councillor Hanrahan was simply one of a number of meetings

referred to in the note. The fact that the account of the meeting noted on the short memorandum did not contain all the information

subsequently contained in Mr. Tom Gilmartin's testimony and his statement was not considered by the Tribunal to constitute a

significant and glaring inconsistency. The Tribunal anticipated always that matters touched on by a witness in the investigative stage

would be elaborated on in greater detail in the giving of oral evidence in the public inquiry when being examined by counsel. Further,

Susan Gilvarry deposed that from Day 656, and Mr. O'Callaghan's statements circulated as part of the Quarryvale I brief, it was clear

that the fact of a meeting between Mr. Tom Gilmartin and Mr. Finbarr Hanrahan at Buswell's Hotel was not in dispute nor was the fact

that Mr. Owen O'Callaghan and Mr. Deane met Mr. Tom Gilmartin after the meeting, nor was there an issue that Mr. Owen O'Callaghan

was told by Mr. Tom Gilmartin that a request had been made of him by Mr. Finbarr Hanrahan for the payment of £100,000.

Several issues arise on this specific example. First, the intervention of Judge Keyes, was not advanced in oral argument. It had been

pointed out by the Tribunal that certain words were in the form of a question, that the words "Does he?" followed the earlier

statement, but did not come out on the transcript. I am satisfied that this was a close interrogation by a judge, one of the three

members of the Tribunal. Even when taken with the issue of the redacted material, to which matter I shall return later in the

judgment, I am satisfied that the applicants have not established any such situation as alleged or met the burden of proof required.

Secondly, the document now disclosed and in issue is a short note of a meeting between counsel for the Tribunal and Mr. Tom

Gilmartin at an investigative stage of the process. A number of factors were raised on it: the date of the meeting is different, there is

no reference to Mr. Liam Lawlor being there, there is no reference to the £100,000 allegedly requested of Mr. Tom Gilmartin, nor do

the words 'Did he tap you' appear. It is not a statement for the Tribunal hearing.

Thirdly, this note had not been disclosed prior to the earlier O'Callaghan case. It was submitted that this exclusion illustrated bias on

behalf of the Tribunal. However, it was only a short memo of a meeting, amongst many other meetings noted. It was not a full note,

or intended to be. The fuller information is in the statements.

Fourthly, the Tribunal stated that it believed the date was not relevant, as the parties agreed a meeting had taken place. I do not

have to adjudicate on this decision, as if it were an appeal, or to put myself in the place of the Tribunal. I note that this was a view

held by the Tribunal. Perhaps the nature of a potential cross-examination had not been fully considered. However, I do not regard this

initial decision, at the investigative stage, that the date and other factors were not relevant, was a final decision of the Tribunal as

to the credibility of Mr. Tom Gilmartin or Mr. Owen O'Callaghan. The matter having been investigated it is now at public hearing.

Fifthly, arising out of the earlier O'Callaghan case, the applicants now have this short memo. As stated by the learned High Court

judge, the Tribunal are obliged now to give the parties an opportunity to cross-examine Mr. Tom Gilmartin with the information

gleaned from the note, especially with reference to the date of the meeting.

Sixthly, I do not regard the fact that a decision was taken, prior to a decision of this Court, erroneously, as to the issue of disclosure,

was final as to issues of creditability. The issue of credibility is a matter quintessentially for the Tribunal - to be taken after the public

hearings and not a matter for this Court.

The enquiry is now at public hearing where there will be the opportunity to cross-examine. After that the Tribunal will proceed to its

final decision, for which it will have to give reasons.

I am satisfied that nothing raised on this specific example indicates that the Tribunal has made a final decision on issues such as the

credibility of Mr. Tom Gilmartin or the applicants, or indicates any unfairness, bias or partiality.

(ii) Mr. Owen O'Callaghan and AIB

" . . . will prove fraud against O'Callaghan and the bank."

The second specific example submitted by counsel on behalf of the applicants was referred to as 'other disquieting documentation'

which has been disclosed by the Tribunal. It is full of hearsay. It was submitted that Mr. Tom Gilmartin told his solicitor Mr. Noel

Smyth, that Mr. Hanratty S.C. told him that Mr. Tom Gilmartin's case against the applicants was "that strong that they would have to

open it again". It is alleged that senior counsel said "that they will prove fraud against O'Callaghan and the bank". Mr. Tom Gilmartin is

stated to have said "that they will prove it. But I don’t know whether he is just saying it to get me talking".

In his affidavit Mr. Owen O'Callaghan deposed that this was withheld by the Tribunal and that it was a matter of great concern to him

that there appears to have been prejudgment on the part of the Tribunal, or at least its counsel, in relation to his guilt or innocence.

Mr. Owen O'Callaghan deposed that this was consistent with the subsequent conduct of the Tribunal, which he alleges to have been

to avoid meeting him as if he were an accused, to conduct a prosecution against him in which it assembled evidence, and attempted

to prove a case against him.

On behalf of the Tribunal this was denied. Mr. Pat Hanratty S.C. has stated that at no time did he say any such thing, or make any

such statement.

In reply on behalf of the applicants, Mr. Owen O'Callaghan deposed that the Tribunal's denial raised very serious issues with regard to

Mr. Tom Gilmartin's credibility. He deposed:-

"I find it extraordinary that Mr. Gilmartin could be allowed say to a third party that the Tribunal informed him that they

would prove fraud against me and the Bank and that this statement, which the Tribunal says was totally false, was not in

the view of the Tribunal a matter which fundamentally went to his credibility."

Mr. Owen O'Callaghan also deposed that it indicated the close nature of the relationships between Mr. Tom Gilmartin and the Tribunal,

that Mr. Tom Gilmartin felt he could make this allegation to third parties and that it would not impact on his relationship with the

Tribunal or his credibility. He deposed:-

"At the end of the day however, I and the other applicants are left in a position where we no not know whether this was

said or not."

I would dismiss this specific example as making any case for the applicants.

The Tribunal is not a court of law, it is an inquiry moving through several stages, from investigation, to public hearings, to decision

making. At issue is a statement alleged to have been made by one counsel of the Tribunal at the investigative stage. It is not a

statement of the Tribunal or any member of the Tribunal. It is an allegation in the circuitous form made by the applicants, which is

emphatically denied by the Tribunal.

It is a document which the Tribunal had erroneously not disclosed, but it is now disclosed as a consequence of the earlier O'Callaghan

case. The document is available to the applicants and may be used in cross-examination of Mr. Tom Gilmartin. Thus the situation of

the applicants has been remedied.

I am satisfied that this matter is not a basis upon which to ground a claim that the Tribunal is unfair, impartial or biased to the

applicants so as to order it to stop its investigations. Concerns stated by a party are not proof of bias or prejudgment by a Tribunal.

If that were so any party could stop any inquiry by voicing any concerns.

(iii) Option agreement

The third specific example referred to by counsel for the applicants related to an option agreement entered into by Mr. Tom Gilmartin

and Mr. Owen O'Callaghan, regarding lands at Neilstown, Baldaddy, on 31st January, 1989.

When giving evidence to the Tribunal Mr. Tom Gilmartin was shown the option agreement, he had complained that the agreement did

not contain all the terms actually agreed between him and Mr. Owen O'Callaghan. He said then that the agreement which he was

shown was not the agreement which he had signed and that it had been falsified by Mr. Owen O'Callaghan and Mr. John Deane so as

to alter its terms.

On behalf of the Tribunal it was deposed that Mr. Tom Gilmartin's testimony to the effect that the option agreement had been falsified

took counsel for the Tribunal by surprise. The allegation that the agreement had been falsified emerged for the first time in the course

of the cross-examination of Mr. Tom Gilmartin by counsel for Mr. Owen O'Callaghan. The Tribunal immediately sought to acquire

further information regarding the option agreement. The Tribunal gave the applicants opportunity to put their denial of Mr. Gilmartin's

allegation. Also, the Tribunal indicated that it intends to return to the issue of the option agreement in the course of the Quarryvale II

Module, which the applicants were aware of prior to the commencement of these proceedings because of the brief circulated re

Quarryvale II Module.

A document in issue is a letter dated February 4, 1991 discovered by Mr. Owen O'Callaghan to the Tribunal. Therefore, the first

named applicant was clearly aware of Mr. Tom Gilmartin's allegation as in that letter: i.e. that Mr. Owen O'Callaghan and Mr. Tom

Gilmartin had an agreement which was omitted in error from their executed agreement that the final payment would not be done until

the approval of the planning.

During the course of the Tribunal hearing the Tribunal instructed Mr. Tom Gilmartin to respond to questions put by counsel for Mr.

Owen O'Callaghan. Also, on Day 501 and Day 504, the Tribunal permitted the applicants to give evidence of the agreement. Mr. Owen

O'Callaghan gave evidence that originally it was an unconditional contract, that the question of zoning and planning was never, never

mentioned, it was an unconditional contract, that then there were telephone calls and a change was made in what had been agreed,

he then agreed to give him an option on the lands. There was then the meeting on the 31st January, 1989 at which the option

agreement was executed. Evidence was given of the meeting on the 31st January, 1989 in Seamus Maguire's office, with Mr. Tom

Gilmartin, Mr. Owen O'Callaghan and Mr. John Deane present. Mr. Owen O'Callaghan has said that the option agreement was

discussed, agreed, typed signed and witnessed. Mr. Tom Gilmartin has given contrary evidence.

There was also conflicting evidence as to the agreement being subject to planning permission for the Quarryvale site. There was

evidence that the first payment of 1.35m was to be 31st January, 1990 and the second of 1.35m was to be on 31st January, 1991 or

the date of rezoning if earlier.

Mr. Owen O'Callaghan, Mr. Seamus Maguire and Mr. John Keane have referred to the final discussions in Seamus Maguire's office,

stating that Mr. Maguire advised Mr. Tom Gilmartin that the option agreement should not be signed by Mr. Tom Gilmartin unless it was

subject to obtaining a planning permission for the Quarryvale site; that Mr. Tom Gilmartin had said that this was not a term of the

agreement with Mr. Owen O'Callaghan and that he did not expect Mr. O'Callaghan to wait for the money, that he was prepared to

take the risk.

In referring to Mr. Tom Gilmartin's evidence Mr. Owen O'Callaghan called it a shocking lie.

In other words there has been entirely contradictory evidence on the option agreement - expressed in strong language by both sides.

The allegation by Mr. Tom Gilmartin of fraud was news to the Tribunal and to Mr. Owen O'Callaghan when Mr. Tom Gilmartin gave this

oral evidence.

However, the Tribunal had documentation, which the applicants did not, and which is at the core of this specific example. It is the

inconsistencies of these statements and their non disclosure which the applicants raise as one of their specific grounds illustrating

what they submit is bias, partiality and unfairness by the Tribunal.

In his transcript statement with Noel Smyth, solicitor, a different story was told. Mr. Tom Gilmartin said "I left it to Seamus Maguire to

complete the contract and we omitted, he drew up the contract and it was totally one sided including the final payment being subject

to planning and when the zoning came up for this site to go in for the zoning...".

Also, in a memorandum of a meeting with Mr. Tom Gilmartin on 8th July, 1999 in Luton attended by 2 solicitors from Eugene F. Collins,

solicitors for Mr. Tom Gilmartin, Mr. Gilmartin himself and Mr. Pat Hanratty S.C. there is an allegation that the contract drawn up by

Mr. Seamus Maguire did not accurately reflect what was agreed:-

"... and through the negligence of Seamus Maguire, the contract which Mr. Gilmartin actually signed, provided that

£1.35m should be paid in October, 1989and a further £1.35m on 31st January, 1990."

The essence of the applicants' complaint is that the Tribunal was aware, and they were not, it had documentation which suggested

negligence on the part of Mr. Tom Gilmartin's solicitor and not deliberate falsification by the applicants. These documents refer to an

agreement which is one sided and contain omissions by reason of the alleged negligence of Mr. Tom Gilmartin's solicitor. It was

pointed out that on 24th March, 2004 the Tribunal ruled that there was no significant gross or glaring inconsistencies between the

evidence of Mr. Tom Gilmartin and the confidential documents held by the Tribunal. At the hearing a very significant time had been

taken by the Tribunal, sending for Mr. John Deane's files, and all the attendant publicity. The applicants also referred to Mr. Tom

Gilmartin's statements in evidence that he was reasonably certain he had told Tribunal counsel, that he was reasonably sure he had

told the Tribunal.

My conclusion on this specific example is multifold. First, this is an area of conflicting evidence to be determined by the Tribunal after

a full hearing on the facts - which hearing has not yet taken place. Secondly, the two documents in issue are part of a wider frame of

conflict - and the parties had known of that conflict for years. Thirdly, the complaint is that the documents were not available to

assist the applicants in cross-examining Mr. Tom Gilmartin. However, it is clear from the extensive cross-examination of Mr. Tom

Gilmartin by counsel for the applicants that they were not disadvantaged. Indeed, the papers contain 70 pages of close cross-

examination of Mr. Tom Gilmartin by counsel for the applicants. Mr. Tom Gilmartin says initially that he told Mr. Hanratty and Mr.

Gallagher (counsel for the Tribunal), or he is reasonably sure he did, but he may have omitted it from his statement, he stated that

the copy agreement he had furnished was not the agreement. He is closely cross-examined and at Q764 answers:

"A. I am not quite sure if I ever told them until now.

Q764 I suggest to you that you did never tell them until now?

A. Well it's possible I did not tell them highly probable."

As to his allegation that it is a falsified document - he repeated that it was not the agreement he signed - that it was falsified: he

alleged that he told his then solicitors, but that they had not included it in the information given to the Tribunal. He continued to

make allegations against Mr. Owen O'Callaghan. Counsel addressed the apparent changing story of Mr. Tom Gilmartin thoroughly. It is

quite apparent from the cross-examination that there has been disagreement and conflict between Mr. Tom Gilmartin and Mr. Owen

O'Callaghan for years. Fourthly, the applicants will have an opportunity now to cross-examine Mr. Tom Gilmartin again with the benefit

of these documents. If anything it puts them in a better position - a double bite at the cherry. Fifthly, this conduct, and the decision

on credibility, are matters for the Tribunal, in the future.

In all the circumstances I am satisfied that no reasonable person would infer bias from the Tribunal's ruling as to the two documents

referred to in this specific example.

(iv) Mary Harney and knowledge of £5m.

During the course of a public hearing Mr. Tom Gilmartin was asked to list the persons he had told about his allegations that an

unidentified individual had demanded £5m after an alleged meeting between Mr. Tom Gilmartin and the Ministers named. Mr. Tom

Gilmartin did not refer to Ms. Mary Harney in his reply to the question. However, later Mr. Tom Gilmartin stated that he also told Ms.

Harney about the demand at a house warming party in Dalkey. As this evidence was not contained in the circulated brief, the Tribunal

immediately asked Mr. Tom Gilmartin to make a supplemental statement dealing with it, so that a decision could be made on its

relevance. Mr. Tom Gilmartin subsequently made a supplementary statement which was read out in the public hearing on the 24th

March, 2004, by Mr. Tom Gilmartin's counsel, retracting his reference to Ms. Harney. It stated, inter alia:

"In my evidence to the Tribunal, I told the Tribunal that I had told Ms. Harney about my visit to the Dáil. However, having

reflected on the matter, I now believe that I did not tell Ms. Harney about my meeting with the then Taoiseach and

Ministers in Dáil Eireann as this discussion with Mary Harney was prior to that meeting. At the time that I gave that

evidence to the Tribunal I may have been confused with another housewarming party which also took place in Dalkey a

year later and I mistakenly assumed that it was at this party that I had met Ms. Harney, although I now believe that Ms.

Harney was not present at the second housewarming."

He stated that Ms. Harney was not one of the people he had told. That was the situation before the Tribunal.

New documents disclosed as a consequence of the earlier O'Callaghan case decision include a telephone attendance of Mr. Gallagher

S.C., Tribunal counsel, dated 3rd October, 2002, of a telephone call from Mr. Hanratty S.C., who had been a Tribunal counsel but had

left approximately a year previously, who informed him that Mr. Tom Gilmartin had said that he had met Ms. Harney at a party hosted

by a person, whose name was initially redacted, in Killiney, quite a few years ago and that he told Ms. Harney at the time what was

going on. Consequent to the decision of the High Court on July, 2005, the redaction of the name was removed.

Also in an earlier memorandum made by Mr. Hanratty S.C. on 28th June, 2000, now disclosed, he recorded a telephone call from Mr.

Tom Gilmartin. Mr. O'Callaghan had deposed:

"As a result of the decision of the High Court in July 2005, the redactions were removed from this document also and it

transpires that what is stated is that Mr. Gilmartin claims that he received the information from a friend of his whose name

he gives and it was in the house of this friend in Dalkey that Mr. Gilmartin met Mary Harney at a party. This name is

different to the name first given by Mr. Gilmartin. Therefore it is clear that on 28th June 2000, Mr. Gilmartin specifically

referred to meeting Mary Harney at a party but said nothing about telling her about the £5m demand in Dáil Éireann. The

party is alleged to be held by a named person in Dalkey. Two years later October 2002, Mr. Gilmartin says that the party

was held by a different named person and its in Killiney. For the first time he says that he told Mary Harney at that time

'what was going on'.

Submissions were made as to the absence of this information to counsel for Mr. Owen O'Callaghan at the time of the cross-

examination of Mr. Tom Gilmartin. It was pointed out that the Tribunal withheld this information from Mr. Owen O'Callaghan, from

public disclosure, that the material was inconsistent with the evidence given, but was still withheld. Mr. Owen O'Callaghan deposed:

"The fact is that there were two memoranda which contained a reference to this matter and yet the Tribunal in asking for

a supplementary statement took no steps whatsoever to disclose these memoranda and furthermore after the Supreme

Court hearing redacted these documents in the manner described in paragraph 37. For the Tribunal now to say that I can

cross-examine Mr. Gilmartin and make submissions to the Tribunal on the matter gives me no comfort whatsoever

particularly in circumstances where notwithstanding all that had happened and the Order of the Supreme Court, the

Tribunal still took the view that I should not be furnished with the unredacted statement."

The fact is that there were two memoranda, which were not disclosed initially, but which now are, as a consequent of the earlier

O'Callaghan case. Mr. Tom Gilmartin has already withdrawn this statement. The relevant issue is Mr. Tom Gilmartin's credibility. That

may be queried on cross-examination using these memoranda.

Knowing why the Tribunal did not disclose these documents would the reasonable observer believe it to indicate bias by the Tribunal?

I do not believe so. Indeed, this particular example illustrates how much of the claim is based on "concern" of the applicants.

Concerns stated by a party are not proof of bias, partiality or unfair procedures. Indeed, if 'concerns' could derail a case no

independent inquiry would ever proceed. It is to be noted that this inquiry has been the subject of several forays into litigation, this

time expressly based on 'concerns' of a party. Clearly 'concerns' could not form a basis for the orders sought.

(v) Immunity

On behalf of the applicants it was submitted that the issue of Mr. Tom Gilmartin's immunity has not been covered in the documents

disclosed, that the terms have not been disclosed.

In the opening statement there was reference to the fact that the Director of Public Prosecutions, at the request of the Sole

Member, decided that it was in the public interest to grant Mr. Tom Gilmartin immunity from prosecution, subject to his co-operation

in giving truthful evidence to the Tribunal. Mr. Tom Gilmartin indicated in evidence that he had not asked for it.

The disclosed document in issue is a memorandum of a meeting with Mr. Tom Gilmartin in Strathmore Hotel in Luton on 30th

September, 1998. It concludes by referring to Mr. Gilmartin driving three Senior Counsel, acting for the Tribunal, to Luton Railway

Station, two of them got out. Mr. Tom Gilmartin is recorded as turning to Mr. Hanratty S.C. and saying 'don't forget that matter we

talked about". Mr. Hanratty noted he asked him what matter and he said "immunity". Mr. Hanratty noted that he said "we do not think

that he needed immunity but that if he wanted it we would get it".

On behalf of the applicants it has been submitted that this is entirely consistent with the Tribunal forming a view at an early date of

Mr. Gilmartin's probity and having concluded that he did not need immunity but he got immunity so as to persuade him to testify

against Mr. O'Callaghan.

It was submitted that this document is inconsistent with Mr. Tom Gilmartin's evidence - that he did not seek immunity - yet it was

not disclosed - and that this indicates prejudgment by the Tribunal. Further it was submitted that it appears to be an inducement by

the Tribunal.

From the beginning the Tribunal has made public the fact that Mr. Tom Gilmartin had immunity, and at the request of the Tribunal.

The Tribunal has not objected to the terms of Mr. Gilmartin's immunity being stated in public, it is a matter for the Director of Public

Prosecutions, who granted the immunity. It is entirely reasonable for the Tribunal to approach the Director of Public Prosecutions in

relation to immunity for a potential witness. Mr. Tom Gilmartin had informed Tribunal counsel at a meeting of the 30th September,

1998 that he was advised to withdraw his statement and to seek immunity. Immunity was sought by the Tribunal from the Director of

Public Prosecutions as a result of this conversation. This was referred to in the opening statement of the Tribunal.

In this case two concessions were made on behalf of the applicants:

(a) that it was not being submitted that immunity on its own was significant - but that in the circumstances it was

significant.

(b) That it was not being submitted that the Tribunal disabled itself from finding his evidence untruthful.

I would dismiss this aspect of the applicants' case.

First, a grant of immunity by the Director of Public Prosecutions is not of itself an indication of unfairness, partiality or bias by the

Tribunal. Especially when it is public knowledge and there has been no refusal to give information.

Secondly, a basis for an immunity, that truthful evidence be given, is not a ground either upon which to build a case of unfairness,

partiality or bias. It is farcical to consider immunity on any basis other than the giving of truthful evidence - so this requirement is

infact consistent with fair procedures.

Thirdly, the disclosed document is ambiguous - and not necessarily inconsistent with later evidence of Mr. Tom Gilmartin. However,

this is not significant as in its opening statement the Tribunal had disclosed the existence of the immunity granted by the Director of

Public Prosecutions at its request.

Fourthly, the remark, by Mr. Hanratty S.C. noted, is a remark of one of many counsel for the Tribunal, not the Tribunal itself. By no

stretch of the imagination could it be considered to be a final decision of the Tribunal as to Mr. Tom Gilmartin's credibility. I am quite

satisfied that a remark by a counsel of the Tribunal of the type disclosed, may not be attributed to be the final decision of the

Tribunal. Or to indicate any prejudgment by the Tribunal.

Finally, no reasonable observer would conclude that the Tribunal had made a prejudgment on the credibility of Mr. Tom Gilmartin on

the issues raised in this specific example.

(vi) Contact between Mr. Tom Gilmartin and counsel to the Tribunal, including drafting of affidavit.

Counsel submitted that there was a disparity of treatment by the Tribunal to Mr. Tom Gilmartin and by the Tribunal to Mr. Owen

O’Callaghan. He submitted that this was a fundamental breach of fair procedures - an inequality - a disparity of treatment which

engendered such unfairness that it makes it unfair for the Tribunal to continue, that the Tribunal should not be entitled to proceed.

Counsel submitted that it appeared to Mr. Owen O’Callaghan, a reasonable man, that there was apparent bias by the Tribunal.

Mr. O'Callaghan deposed that the documents disclosed as a consequence of the earlier O'Callaghan case showed that Mr. Tom

Gilmartin spoke with senior counsel for the Tribunal (on most occasions without the intervention of a solicitor) on at least 36

occasions. The Tribunal legal team travelled to London to meet Mr. Tom Gilmartin. A draft affidavit of Mr. Tom Gilmartin was prepared

with the assistance of Tribunal counsel. Mr. Owen O'Callaghan stated that he was never allowed such opportunities of coming to meet

the Tribunal in private sessions despite a repeated offer to do so. He deposed that he was never offered any undertakings as to

confidentiality, while Mr. Tom Gilmartin sought and obtained immunity from prosecution before testifying at the Tribunal. He deposed

that the terms of the immunity had never been disclosed. He deposed that Mr. Tom Gilmartin appeared to have unrestricted access to

counsel acting for the Tribunal who met him on regular occasions, apparently without the presence of solicitors, and who assisted in

the preparation of the statement which was subsequently circulated by him. He alleged that it appeared that a relationship existed

between Mr. Tom Gilmartin and one of the senior counsel for the Tribunal which enabled Mr. Tom Gilmartin to telephone that counsel

privately almost a year after that counsel left the Tribunal.

On behalf of the Tribunal Susan Gilvarry deposed that the Tribunal's contact with Mr. Tom Gilmartin was motivated by its desire to

have him assist the Tribunal in its inquiries. From the Garda investigation file the Tribunal believed that Mr. Tom Gilmartin had

information that could progress its inquiry. Initially Mr. Gilmartin's approach to the Tribunal indicate a willingness to provide information

but a reluctance to attend or participate in the public hearing. In that context a meeting took place in London between Mr. Tom

Gilmartin and members of the legal team of the Tribunal, which was attended initially by the Sole Member to allay concerns expressed

by Mr. Tom Gilmartin. No discussions with Mr. Tom Gilmartin took place with the legal team until the departure of the Sole Member. Mr.

Tom Gilmartin was assisted in preparing his affidavit in circumstances where he had decided to dispense with his then legal team's

services.

Ms. Gilvarry deposed that the practice of travelling to another jurisdiction by members of the Tribunal's legal team in circumstances

where a witness was based in another jurisdiction did not happen only in relation to Mr. Tom Gilmartin. Counsel for the Tribunal

travelled to meet Professor Ray Hills, a witness in the Century Radio Module, in London, in 1998. Counsel also travelled abroad to meet

with Mr. Dadley and Mr. Mould, witnesses in the Quarryvale Module, in 1998 and 2002; to meet Mr. Richard Forman, a witness in the

Quarryvale module in October, 1998; and to meet Mr. Patrick Taylor, a witness in the Century Radio Module. Ms. Gilvarry stated that

such a practice is in keeping with the practice in other Tribunals, that it was not a practice motivated to give preferential treatment

to certain parties but arose because of the exigencies of the situation. Thus the Sole Member sat in Guernsey for three weeks in 1999

to facilitate the taking of evidence from Mr. Joseph Murphy - which fact was widely known.

Ms. Gilvarry explained that the level of contact between Mr. Gilmartin and the Tribunal's counsel arose in circumstances where Mr.

Tom Gilmartin said he was unhappy with his solicitor, which attitude was exacerbated when Mr. Tom Gilmartin heard that a transcript

of a typed statement he had made had been made available to third parties. Ms. Gilvarry explained that the cessation of direct

contact between Mr. Tom Gilmartin and counsel for the Tribunal effectively coincided with the appointment of A&L Goodbody,

solicitors, to act for Mr. Tom Gilmartin: A&L Goodbody were appointed to act for Mr. Tom Gilmartin in February, 2000 and direct

contact between counsel for the Tribunal and Mr. Tom Gilmartin ceased after that date.

Further, Ms. Gilvarry deposed that Mr. Tom Gilmartin's unsolicited contact with Mr. Hanratty after Mr. Hanratty had left the Tribunal,

was not a matter over which the Tribunal or Mr. Hanratty had any control.

In reply, Mr. O'Callaghan, deposed that prior to Mr. Tom Gilmartin getting legal representation from A&L Goodbody, he had legal

representation from Noel Smyth & Partners, and Eugene F. Collins, solicitors, yet there was direct contact. Mr. Owen O'Callaghan

expressed concerns about the direct contact between counsel for the Tribunal and Mr. Tom Gilmartin, and deposed that it was

inconsistent with independence and equality of treatment required of the Tribunal by law. Nor did he accept that neither Mr. Hanratty

or the Tribunal had any control over Mr. Tom Gilmartin's contact with Mr. Hanratty, he stated that Mr. Gilmartin should have been told

that such contact is inappropriate. Further, Mr. Owen O'Callaghan deposed that he viewed it as quite extraordinary that Mr. Tom

Gilmartin would, at a time when he had his own solicitor and counsel, make contact with counsel for the Tribunal after that counsel

had ceased to work for the Tribunal and deposed that it suggested a level of contact with the Tribunal and advice to Mr. Tom

Gilmartin that was singular as far as Mr. Owen O'Callaghan was concerned. Mr. Owen O'Callaghan deposed that it was inconceivable

that he or the other applicants would have been afforded a similar facility. Mr. Owen O'Callaghan deposed that the level of contact is

difficult to reconcile with the Tribunal's duty to investigate. He stated that it created a serious apprehension on his part that the

Tribunal had already developed a special relationship with Mr. Tom Gilmartin and a view of the reliability of his evidence so that it

enabled Mr. Tom Gilmartin to contact the Tribunal counsel directly for advice notwithstanding that he had his own advisers.

First, I am satisfied that this submission fails.

The test to be applied is objective, the reasonable apprehension of a reasonable person, it is not subjective. It is not the subjective

concern expressed by Mr. Owen O'Callaghan.

Secondly, the level of contact by a Tribunal to a particular person will depend on many circumstances, primarily the role of that

person in the Tribunal's work. In this case Mr. Tom Gilmartin has made many serious allegations which are being investigated by the

Tribunal. That places Mr. Tom Gilmartin in a specific role. On the otherhand, Mr. Owen O'Callaghan is one of the persons against whom

allegations have been made, thus he has a different role in the work of the Tribunal. The Tribunal is entitled to treat witnesses

differently, such difference is not evidence of unfairness, partiality, or bias.

Thirdly, the level of contact will also be affected by whether or not a witness had legal advisors. On many occasions in the initial

years Mr. Tom Gilmartin did not have legal advisors. A tribunal will have more contact with a witness not represented by solicitors.

Fourthly, the Tribunal's counsel did assist Mr. Tom Gilmartin with his affidavit, - which is entirely consistent with the policy and rules

of the Tribunal. It is not an indication of unfairness or bias. Indeed, evidence was given of assistance given to the applicants and to

others.

While there has been greater contact by the Tribunal with Mr. Tom Gilmartin than with Mr. Owen O'Callaghan it is explicable in the

circumstances. Differences will occur in the process of a Tribunal. When a witness is in a foreign jurisdiction, is making allegations, has

no legal advisers, that presents a certain set of circumstances. The applicants were in a different situation, allegations were made

against them, they had legal advisers, and the Tribunal was investigating the allegations made against them.

I agree with the learned High Court judge, that the Tribunal were entitled to assume that Mr. Tom Gilmartin did not set out to

deliberately perpetrate falsehoods. However, this is a preliminary analysis, at the preliminary investigative stage, prior to the hearings

in public, and prior to the ultimate decision by the Tribunal. Such an approach is not unfair. The Tribunal has consistently pointed out

the preliminary nature of its work and that no decisions as to credibility have been made. The decisions were enabling of a public

hearing, and not a final decision on credibility. I am satisfied that this submission fails, no reasonable person would infer bias by the

Tribunal, or prejudgment as to credibility, in the circumstances.

(vii) Dáil Éireann alleged 5m demand and "gangster friends".

Mr. Owen O'Callaghan deposed that a significant issue which occupied the time of the Tribunal was an allegation by Mr. Tom Gilmartin

as to his attendance at a meeting at Dáil Eireann in or about the month of February 1989. A detailed account of this meeting was

given by Mr. Tom Gilmartin which was described by counsel for the Tribunal in opening the module. That account involved Mr. Tom

Gilmartin being lead out of the cabinet room to find that Mr. Liam Lawlor was outside the room talking to somebody else. A man

allegedly approached from Mr. Tom Gilmartin's right hand side whom he did not recognise and suggested that Mr. Tom Gilmartin make a

payment of £5m and gave him a piece of paper which he told him contained a bank account number in the Isle of Man. Mr. Tom

Gilmartin allegedly rejected this approach saying 'you make the fing mafia look like monks' and said that as he walked away the

man 'tapped' him on the arm and said you could end up in the Liffey for that statement. To this, Mr. Tom Gilmartin claims he

responded with an expletive and walked towards the lift and left. Mr. Liam Lawlor allegedly walked away in front of him.

Mr. Owen O'Callaghan deposed that the documents now disclosed because of the earlier O'Callaghan case show that the Tribunal had

in its possession a detailed note of a telephone conversation between Mr. Hanratty S.C. and Mr. Tom Gilmartin on 3rd June, 1999. In

that account, Mr. Tom Gilmartin says that:

"at one stage he saw [a prominent named politician] talking in an alcove to OOC. TG had decided to leave and saw this on

his way out. OOC called him back and asked him where he was going. TG said he was fed up with him and his gangster

friends. OOC said that neither he nor any Unionist would put a foot on Quarryvale".

Mr. Owen O'Callaghan deposed that the reference to OOC was clearly a reference to him. That this is the only time this allegation had

been mentioned by Mr. Tom Gilmartin. It was not mentioned in evidence. He deposed that this allegation is completely untrue. Despite

the fact that many of the cabinet members mentioned by Mr. Tom Gilmartin as being present at that meeting were called to give

evidence and despite the amount of time that Mr. Tom Gilmartin devoted to this issue in direct and cross examination, it was never

suggested by Mr. Tom Gilmartin or by any other witness or by counsel for the Tribunal, that Mr. Owen O'Callaghan was present that

day or spoke to Mr. Tom Gilmartin or spoke to the said named prominent politician. That politician had testified and it was never

suggested to him that Mr. Owen O'Callaghan was present in the vicinity of that meeting. Neither was it suggested to Mr. Owen

O'Callaghan when he testified.

Mr. Owen O'Callaghan deposed that Mr. Tom Gilmartin had sought to implicate him with this alleged demand or in some way associate

him with it. It appeared to him that the allegation was relevant, admissible and probative and that it was a glaring inconsistency

between the account given by Mr. Tom Gilmartin to the Tribunal and that given by him on a previous occasion. Mr. Owen O'Callaghan

deposed that he found it difficult to imagine any reason why the Tribunal would conceal this information other than the fact that it

could be used to undermine the credibility of Mr. Tom Gilmartin by showing that he had made an untrue allegation about him in relation

to a central event. It seemed to Mr. Owen O'Callaghan that the Tribunal must have formed a view that the allegation was untrue on

the basis that no other person in Dáil Éireann on that day was able to corroborate it and must have decided not to disclose it. It also

appeared to him that an impartial Tribunal which had formed no fixed view as to whether the allegation was true or not would have

pursued it at a public hearing.

On behalf of the Tribunal Ms. Susan Gilvarry deposed that the Tribunal was of the view that the Dáil meeting referred to in the memo

of 3rd June, 1999, particularly when read in the context of the earlier memos referred to and including the memo of the meeting of the

15th, February 1999, was a different Dáil meeting and that the meeting in the Dáil at which Mr. Owen O'Callaghan was present

occurred sometime in 1991 and was not the meeting which occurred in or around February, 1989, at which the demand for £5m was

made. The Tribunal was of the view that an allegation was being made by Mr. Tom Gilmartin that Mr. Owen O'Callaghan was present

at the Dáil on the date of the demand for £5m. As a consequence the Tribunal took the view that this was not a glaring or significant

inconsistency.

Mr. Owen O'Callaghan has deposed that there is no basis upon which the Tribunal could consider it was a different meeting. Further

he expressed concern that the Tribunal could decide this in private without referring to him.

Mr. Owen O'Callaghan deposed:

"The statement that the Tribunal did not form any view as to the truth or otherwise of these allegations suggests that it

has taken a certain view of facts which go to the core of these issues without apprising me of the view which it was

taking or giving me any opportunity to make any submissions with regard thereto or indeed even apprising me of the

material on which such views were based raises serious issues. Again, I note that the Tribunal has formed a view, benign

to Mr. Gilmartin in a matter very important to the issues which it has to determine, without allowing me the opportunity of

exploring the issue and its significance through cross-examination and without disclosing the reason for the view so

formed. This demonstrates that the Tribunal at the private stage did what it is not entitled to do, namely, it formed a

view as to the veracity and interpretation of Mr. Gilmartin's statements which then enabled it to conclude that a

discrepancy was of no relevance. Furthermore the fact that it decided not to form any view as to the truth or otherwise

of the allegations meant that I was deprived of the opportunity of demonstrating that the allegation was untrue. If I had

had the opportunity and so demonstrated the falsity of the allegation, then clearly that would have been relevant to the

Tribunal's consideration of the issue and Mr. Gilmartin's credibility."

I would dismiss this submission of the applicants also.

First, the Tribunal has presented evidence that it has not formed any view as to the truth or otherwise of the allegations. These are

matters which will be subject to further cross-examination and evidence. It was re-iterated that the Tribunal has an open mind. While

that is not conclusive of the issue it is evidence to be considered and put in the balance.

Secondly, this judicial review is not to reconsider and act as an appeal court to the decisions of the Tribunal. The Court does not

step into the shoes of the Tribunal. A court should be slow to intervene in these initial stages of the process.

Thirdly, the work of the Tribunal at the investigative stage is done in private. This aspect of the work could not be done in public

without great harm being done to the investigation itself and to many persons who would be put unnecessarily in the public eye.

Fourthly, on this particular example the Tribunal has explained their view, the Tribunal did not read it as an allegation against Mr.

Owen O'Callaghan. It is Mr. Owen O'Callaghan who has suggested that it should be inferred that Mr. Tom Gilmartin was involving Mr.

Owen O'Callaghan in the £5m issue. It is an explicable stance of the Tribunal to have considered that it was not an allegation against

Mr. Owen O'Callaghan. While the view of the Tribunal is not determinative it is a factor.

In all the circumstances therefore, I am satisfied that this example does not advance the applicants' claim to prohibit the further work

of the Tribunal.

18. Conduct

Counsel on behalf of the applicants has dipped and picked issues and examples from the mountain of paperwork of this Tribunal. He

cites it for the applicants' cause. However, it is necessary to consider the totality of the work of the Tribunal, not events in isolation.

When looked at in the totality the appropriate analysis may be made and the appropriate test applied.

19. Redaction

Before concluding on the seven specific examples I will refer to the issue of the redaction of documents when they were first released

by the Tribunal after the earlier O'Callaghan case.

In the earlier O'Callaghan case the High Court (O'Neill J.) on 7th July, 2004 held that it would be very damaging to the public interest

if there was a withholding from disclosure of material in the possession of the Tribunal relevant to the subject matter of a particular

module and which a person affected by the allegations made in the inquiry, might need to establish the truth and vindicate his or her

good name. The decision was grounded on breach of the applicant's right to fair procedures. The Tribunal had apprehended a threat

to its management of its business by the mixing of one module with another. O'Neill J. pointed out:

"In this case we are concerned only with a very limited category of documents, and of those, only those parts relevant to

the current module of the Tribunal. In my view in these circumstances there is no risk of bringing the kind of chaos to the

business of the Tribunal that has been mentioned".

He concluded that there had been a breach of the applicants right to fair procedures and that the encroachment this made into those

rights is not necessary for the protection of the public interest. He granted a declaration but confined it to the documents relevant to

the present or current module of the Tribunal. The Tribunal's appeal was dismissed by the Supreme Court on 9th day of March, 2005.

Counsel indicated to the Supreme Court that the Tribunal had concerns in relation to the rights of third parties who might be

prejudiced by the circulation of documents containing allegations by them which were not at this time being investigated by the

Tribunal and some of which were not within the remit of the Tribunal. Counsel indicated that it proposed redacting parts of the

documentation in respect of those matters. The Supreme Court indicated that if the applicants were not satisfied with the situation

the matter was to be considered by the High Court. The Supreme Court ordered:

"... that the matter be remitted to the High Court to determine the question of what documents are to be made available

to the applicant having regard to the nature of those documents - this Order not to operate to prevent the parties from

agreeing to give or receive any such documents in the meantime."

The Tribunal collected the documents and redacted parts of the documents. Reasons were given for each redaction such as the

rights and entitlements of third parties where the material related to allegations which the Tribunal would not be investigating. The

applicants were not happy to accept the redactions. Therefore the Tribunal itself brought a motion to the High Court seeking a

declaration that the circulation of the documents as redacted was in full compliance with the court order, or, in the alternative,

seeking an order specifying the documents or parts thereof which are to be provided to the applicants. The documents in an

unredacted form were made available to the High Court. The High Court heard submissions from the parties. The specific order of the

High Court was that:

"1. that the documents exhibited in the grounding affidavit of Susan Gilvarry sworn on the 15th day of April, 2005 be

provided to the applicants herein by the respondents with the categories of redactions referred to at paragraphs 6 7 8 15

and 16 in the said affidavit and without the categories of redaction provided for in paragraphs 9 10 11 12 13 and 14 in the

said affidavit.

2. that the material provided to the applicant on foot of this Order be used solely for the purpose of cross-examining

[Tom Gilmartin] in the course of proceedings of the Tribunal of which the Respondents are members or for necessary

enquiries related thereto."

O'Neill J. stated:

"I am satisfied that in order to vindicate the applicant's constitutional right as aforesaid, it is necessary that those who

have the responsibility for defending the applicant's good name, i.e. his legal advisors and in particular counsel, should

have access to this redacted material for the purpose of cross-examining the notice party.

...

I am satisfied therefore that the order of the 14th July, 2004, must of necessity, extend to material relevant to the issue

of the notice parties credibility but not directly relevant to the factual allegations in modules Quarryvale I or II. I have

reached that conclusion for the paramount reason of the necessity to vindicate the constitutional right of the applicant,

to his good name.

I have come to the conclusion therefore that material redacted under categories 'D' and 'E' should be disclosed to the

applicant's legal advisors.

It is appropriate in my view that the disclosure of this material should be subject to the kind of restriction that goes with

the disclosure of material on discovery of documents in civil actions, namely, that the material can only be used for the

purpose for which it is disclosed in the proceeding in question and for no other purpose. Accordingly therefore I would

make an order restraining the applicant from using this material for any purpose other than the cross-examination of the

notice party or for necessary enquiries related thereto."

There was no appeal to this Court from that decision of the High Court.

It was the Tribunal which took those proceedings to the High Court to clarify issues arising on the redactions, such as whether it

meant all documents relevant to credibility but not relevant to issues on that module - i.e. extraneous material to the module but

relevant to credibility.

The applicants have submitted that the redactions are yet further evidence of the Tribunal's approach to the applicants, of bias,

unfairness and partiality.

I would dismiss this ground also.

This was a bone fide and open process of the Tribunal to clarify important issues. On reading the documents I am satisfied that no

reasonable person would have a reasonable apprehension of bias as a consequence of this matter. To submit that the documents

were redacted contrary to court orders, was incorrect. This was a difficult area of decision making, a question of important issues to

be balanced, and the Tribunal sought a ruling from the High Court. Inspite of this process the applicants have submitted that the

redactions by the Tribunal were yet further examples of bias, partiality and unfairness by the Tribunal. I am satisfied that this is not

so. Indeed, the submissions by the applicants on this point hint a significant refusal to work with the Tribunal, and consequently to

cause delays in the work of the Tribunal. In the circumstances, I am satisfied that a reasonable person, having knowledge of all the

facts, would not infer bias, partiality and unfairness on behalf of the Tribunal.

20. Decision on the seven specific examples

At issue is whether a reasonable person would have a reasonable apprehension from these seven specific examples that the Tribunal

was acting unfairly, or was biased or had made a prejudgment, a final determination, on the credibility of Mr. Tom Gilmartin and/or the

applicants. Having considered the examples I am satisfied that such a person would not. The evidence of the rulings and procedures,

and stages of the Tribunal process, and decisions made as to matters to be included in the brief, and the specifics of these seven

matters, may have illustrated some errors, but not objective bias. A reasonable person, having knowledge of all the facts, and

perceiving these decisions of the Tribunal, at these early stages, would not have a reasonable apprehension of bias, impartiality or

unfairness on behalf of the Tribunal, would not have a reasonable apprehension of prejudgment on the issue of credibility by the

Tribunal. An apprehension on behalf of the applicants is not the applicable test, it is that of the reasonable person.

These examples have been given to the Court for the purpose of asking the Court to infer objective bias by the Tribunal on the issue

of credibility, the Tribunal has not expressed an explicit view on the issue of credibility of the persons yet. This is entirely consistent

with the current early stage of the Tribunal. In fact, the Tribunal has expressly stated that it would not make a decision on credibility

until after the public hearings. For the reasons given in relation to the seven specific examples and above, I am satisfied that, a

reasonable person, who has knowledge of the relevant facts, would not infer bias, partiality, prejudgment or unfairness by the

Tribunal.

21. Cross-examination

These documents may now be used in the cross-examination of Mr. Tom Gilmartin. Counsel for the applicants submitted that it is now

too late. However, I am satisfied that that is not the case. If anything, indeed, a cross-examination now, on foot of the documents

newly disclosed, after the earlier examination, will be memorable, and, in the circumstances, perhaps even stronger than if it had

occurred as part of the initial cross-examination. It is not a criminal court of trial with a jury. It is an inquiry by a Tribunal - the

process of which is not yet completed.

22. Decision

(i) The decision in this case is made in the context of many relevant factors which require to be considered.

(ii) The applicants have come to Court seeking an order stopping the Tribunal from investigating them further. The basis for seeking

such an order is alleged bias, partiality and unfairness by the Tribunal against the applicants. For the reasons which I have and will

give I would not order the Tribunal to cease its inquiries.

(iii) This appeal arises within the framework of an application for judicial review. It is not an appeal de nova of decisions. The

applicants have chosen a process which exists to supervise the exercise of the jurisdiction of the Tribunal. It is not a process

available to correct errors nor to make the Court a court of appeal. It is not appropriate for a court on such review to carry out a

microscopic analysis of the decisions made by the Tribunal. The decisions of the Tribunal are analysed - not to determine whether

they were correct, but to see if they illustrate a bias. An error by the Tribunal is not relevant in this process.

(iv) The mountain of detail and microscopic analysis of decisions made by the Tribunal in its preliminary phase, which has been

brought before the Court in this appeal, immediately raises my concern. Even if it is, as submitted, that the analysis of the decision-

making process is not being taken to require this Court to make a decision on the individual issues, but to show unfairness, partiality,

and bias, the level of detail raised rings an alarm bell, both as to the future work of Tribunals, and as to the use of the process of

judicial review.

(v) An important factor is the nature of the decision maker. In this case it is a Tribunal of Inquiry into Certain Planning Matters and

Payments, appointed by instrument of the Minister for the Environment and Local Government on Resolution of the Dáil. The Tribunal

was established under the Tribunal of Inquiry (Evidence) Act, 1921 as amended. The Tribunal is to inquire urgently into and report to

the Clerk of the Dáil and make such findings and recommendations as it sees fit into definite matters of urgent public importance, as

set out on the Terms of Reference. It is the choice of the people's representatives that this instrument, the Tribunal, be utilised to

investigate matters of public concern - corruption in the planning process. A court should be slow to intervene in such an inquiry. As

the learned trial judge said:-

"The facts of this case are unusual. In general it is most undesirable that judicial reviews should be held in relation to

particular rulings made by a tribunal while the hearings are still running."

I would affirm this principle.

(vi) Further, the judicial review relates to the early stages of the Tribunal.

The fact that the Tribunal works in stages was considered previously in this judgment. Theses are exceptional inquisitorial powers

given to the Tribunal. They necessarily expose private matters.

The very institution of the Tribunal with its powers risks baseless allegations being made. Because of this and other dangers a tribunal

is only established for matters of vital public importance. A tribunal works in stages. As Hamilton C.J. described in Haughey v. Moriarty

[1999] 3 I.R. 1 at p. 74, these stages are (a) preliminary investigation of the evidence available; (b) the determination by the tribunal

of what it considers to be evidence relevant to the matters into which it is obliged to inquire; (c) the service of such evidence on

persons likely to be affected. There then follows the public hearing in regard to such evidence, and the cross-examination of

witnesses, and then the preparation of a report with recommendations based on the facts established at public hearing. This case

relates to claims relating to the early stages. The investigative stage is necessarily held in private. Decisions as to the contents of

the briefs are also made at an early stage and are not final, but may be added to at times.

(vii) To make the point that this review relates to decision-making in a Tribunal a different way; the decisions in issue do not arise in

a criminal trial. This is not a review of a criminal trial. Rules of procedure appropriate in a criminal trial are not appropriate in a tribunal

- at any stage of the process. It would be entirely wrong to require of a tribunal that it conduct its business in the manner of a

criminal trial. The protection of constitutional rights does not require an entitlement to procedure as in a criminal trial, at any stage of

a tribunal.

(viii) It is a significant factor also that this case follows the earlier O'Callaghan case. In O'Callaghan & Ors. v. Mahon & Ors. [2005]

IESC 9 this Court held that the Tribunal had applied its own policies too rigidly and infringed the Constitution. As a consequence of

that decision the applicants were given disclosure of over 50 documents. Arising from that disclosure, and with reference to those

documents, the applicants are now alleging that the Tribunal has acted unfairly, partially and with objective bias.

(ix) As the Tribunal is still at early stages of its procedure - investigation and public inquiry - the ultimate process of decision-making

(which comes at the end of the various stages) has not yet arrived. The Tribunal is not a stage at which final decisions are made.

The Tribunal has stated on many occasions, evidence of which is before this Court, that the issue of credibility is a matter which will

be decided after all the evidence is gathered, after the public hearings. That stage has not yet been reached. Those statements are

not determinative of the issue - but are factors to be considered. Such an approach is consistent with the various stages of a

tribunal as described previously in this judgement. Yet the applicants have submitted that objective bias should be inferred.

I am satisfied that a reasonable person, with knowledge of the relevant facts, would not make such an inference in the

circumstances, would not have a reasonable apprehension of bias on this basis, that final decisions on the issues of the credibility of

Mr. Tom Gilmartin or Mr. Owen O'Callaghan have been made.

(x) The Tribunal has itself established a procedure, none having been given to it in its terms of reference. Earlier in this judgment, at

paragraph 12, I have set out in detail some examples of the policies and procedures of the Tribunal as to disclosure and

confidentiality. Of course, these rulings were prior to the earlier O'Callaghan case, which held that the Tribunal erred on applying its

rules on disclosure and confidentiality. However, they are relevant in that they illustrate a careful approach taken by the Tribunal.

The fact that the Tribunal fell into error in its application of its own rules does not detract from the fact that a careful general

procedure was established, that the different stages of the Tribunal are reflected in the rulings, that the investigative stage is

acknowledged and addressed, that provisions are made for the excessive amount of documentation, that it is stated that no decision

on credibility will be taken prior to the conclusion of the public hearing, and that specific policies of confidentiality, disclosure and

assistance were established.

(xi) A further factor relevant is the mountain of documents before the Tribunal. This is not a situation where the documents disclosed

refer to a routine court case - even it if has many documents. These are documents, often counsel's notes or memos, often very

short, taken over the last decade, and contained in a mountain of paper. Indeed, the volume of paper work has been so extensive

that special IT retrieval systems have been developed. In other words, this Court, having ordered that these documents now be

disclosed, the documents should be considered in context. The context is that the Tribunal, and the applicants, are working with an

incredibility large volume of documents and papers.

(xii) Also, in context and relevant are the particular positions of the parties in the Tribunal. Mr. Tom Gilmartin has made allegations

which are being investigated by the Tribunal. The first named applicant's position as a witness to the Tribunal arises out of allegations

made to the Tribunal and his involvement with lands at Quarryvale, individually and through corporations, notably the third and fourth

applicants. The second named applicant is a director of the third and fourth applicants and a consultant in the firm Ronan Daly

Jermyn, which is solicitor for all the applicants.

The lands at Quarryvale did not have zoning for a town centre in the 1983 Dublin Development Plan. In 1987 a review of the 1983

plan commenced and as a consequence the 1993 Development Plan for Dublin was created. In the course of this the Quarryvale lands

were zoned and they included provision for a limited town centre. Eventually the Liffey Valley Shopping Centre was built on these

lands.

In April 2000, Mr. Frank Dunlop, at a public hearing before the Tribunal, gave evidence stating that substantial payments were made

to public representatives to influence their votes in land zoning. He stated that he made payments to councillors in order to secure

the zoning of Quarryvale.

The applicants have informed the Tribunal that at no time did they pay any money to secure any votes, nor did they authorise

anyone to do so. As deposed to by Ms. Gilvarry, in response to queries from the Tribunal, Mr. Owen O'Callaghan has provided details

of payment as follows:-

(a) Mr. Owen O'Callaghan accepts that the aggregate sum of £1,808,541 (€2,296,847) was paid by him, or companies of

which he was a director, to Mr. Frank Dunlop or Mr. Dunlop's companies.

(b) Mr. Frank Dunlop has stated that some of the payments made to him by Mr. Owen O'Callaghan were lodged in

accounts from which he paid alleged bribes to named councillors for their support for rezoning, including the lands at

Quarryvale. Mr. Owen O'Callaghan has stated that he neither instructed nor authorised Mr. Frank Dunlop to pay councillors

for their votes nor was he aware that any payments had been made to members of Dublin County Council other than

those political donations notified by Mr. Dunlop to him.

(c) Mr. Owen O'Callaghan has stated that the aggregate sum of £35,000 (€44,450) was paid directly by him, or companies

of which he was a Director, to Mr. Liam Lawlor (deceased) between 18th November, 1991 and 13th March, 1995.

(d) Mr. Owen O'Callaghan has stated that the aggregate sum of £60,500 (€76,835) was paid directly by him, or by

companies of which he was a director, to Dublin City Councillors, between 1989 - 1993.

(xiii) In relation to the documents now disclosed because of the earlier O'Callaghan case, the applicants now allege bias, partiality and

unfairness by the Tribunal.

While denying, finally, that it was asking the Court to infer bias from a pattern of erroneous decisions, in fact the applicants have

brought the Court through a microscopic analysis of decisions. This, at first appearance, is asking the Court to step into the shoes of

the Tribunal, to evoke an appeals process. Such is not the role of the Court in judicial review. I would dismiss this aspect of the

appeal insofar as it in fact sought a microscopic analysis of individual decisions of the Tribunal.

It was, in light of the serious nature of the claims made by the applicants, because of the form which the case took in the High Court,

and this Court, because of the highly nuanced submissions presented that, I have addressed the specific examples submitted.

(xiv) Seven specific issues

In this context the seven specific matters were referred to by counsel. Counsel submitted that they represented the height of the

applicants' case and he therefore, while relying on the entire written submissions, submitted that if he did not succeed on the seven

specific issues his case would fall.

I am not satisfied that the applicants case has been made out on these seven matters, as stated previously in some detail in this

judgment. For the reasons stated I am not satisfied that they establish a basis for an order stopping the Tribunal from proceeding

with its work.

(xv) Non-intervention

In general it is undesirable that a court intervene with the process of a Tribunal while it is at hearing. As Geoghegan J. stated in

O’Callaghan v. Mahon & Ors [2005] I.E.S.C. 9:

"In general it is most undesirable that judicial reviews should be held in relation to particular rulings made by a tribunal

while the hearings are still running. As I have already indicated there is, in my view, a wide latitude given to tribunals to

fashion its own procedures and the courts should not lightly intervene".

It is unfortunate that the necessary intervention by this Court in that case has spawned this litigation – which relates to the same

investigative and public hearing process of the Tribunal.

(xvi) The width of the terms of reference are also a relevant factor. The Tribunal was established by resolution of the Houses of the

Oireachtas to investigate corruption in relation to certain planning matters. Its terms of reference are very wide, and, arising from the

experience of this and other Tribunals, I doubt whether such wide terms of reference will be drawn again. Nor is there is an explicit

time frame, and, arising from the experience of this and other recent Tribunals, it may be that in the future, time limits or dates may

be established in establishing such inquires. However, that did not occur in this case.

(xvii) The work of the Tribunal is of great importance to the community. This was recognised by the Dáil on its establishment. It is not

a legislative body, or a court of law, but rather it is a tribunal of inquiry, established under the Tribunal of Inquiries Act, 1921, as

amended, with all the dangers of such an inquiry, such as a person's privacy. It is inquiring into matters of public importance, into

issues of corruption in the planning process. Planning in a community is at the heart a civilised society, and thus the issues being

inquired into are of great importance to the people who live in the community. It is in that context that the people's representatives

chose this tool of inquiry.

(xviii) The redaction of the documents initially by the Tribunal after the earlier O'Callaghan case was explained fully by the Tribunal,

which itself brought a motion to the High Court to obtain an order as to how it should proceed. The High Court ordered that some

matters be redacted and others not. This decision was complied with and not appealed. I have dealt with the matter fully earlier in

this judgment. That this was a ground for the applicant's claim illustrates the frailty of its case, and the nature of this claim illustrates

a degree of antagonism to the Tribunal. I have no doubt in dismissing this ground of appeal.

(xix) It was part of the applicants' case that decisions of the Tribunal refusing to disclose documents (now disclosed as a

consequence of the earlier O'Callaghan case) indicate decisions on relevance or consistency by the Tribunal from which a reasonable

person would have a reasonable apprehension that the Tribunal had decided that Mr. Tom Gilmartin was a credible witness and that

Mr. Owen O'Callaghan was not, in other words that it had made a prejudgment, was biased and unfair. I am satisfied that this is not

so, no reasonable person, with full knowledge of the facts, would have a reasonable apprehension of bias.

23. Conclusion

Having read the pleadings, and the many boxes of papers submitted, and heard the oral submissions, and carefully considered the

case, I had an inclination to dismiss this appeal with one sentence -affirming the judgment of the High Court.

However, because of the serious allegations made, and to allay any apprehension of bias, and so that justice may be seen to be

done, I have addressed the most important issues raised on behalf of the applicants, and have given express reasons for my decision.

In these proceedings the applicants have sought an order of the Court to stop the Tribunal from investigating further or making any

findings against the applicants on grounds of bias, unequal treatment, partiality and/or unfairness by the Tribunal. In essence, in the

circumstances, the claim is one of objective bias, prejudgment by the Tribunal.

The issues raised in this case are rooted in the early stages of the Tribunal. They reflect decisions made in the preliminary stage as to

issues, as to relevancy and consistency of documents and information. They reflect decisions made as to which issues should proceed

to a pubic hearing and to which module, and the relevant documents.

Plainly not all documents could be circulated. If such were to be the case the process would be inoperable. For example, the volume

of documents would be excessive and persons' rights would not be protected.

A decision-making process takes place as to the content of the brief to be circulated, prior to a module of public hearing of the

Tribunal. This takes place in a situation where there is an enormous volume of documents. The Tribunal has over the last ten years

established policies and rules relating to issues such as relevancy, consistency, and confidentiality; and these were applied to the

documents is issue. These rules have not been held to be invalid. Indeed, this Court has endorsed the necessity for policies and rules

to assist the Tribunal's process. In the earlier O'Callaghan case this Court held that the Tribunal had applied its own policies too rigidly

and infringed the Constitution. It was ordered that some documents which had not been disclosed be given to the applicants.

Therefore, the applicants now have the documents for the purpose of cross-examining Mr. Tom Gilmartin. That decision of this Court

has provided the remedy which protects the constitutional rights of the applicants.

The applicants now claim bias by the Tribunal against them. Absolute bias is not alleged. What is alleged is objective bias - the

apprehension of bias. The law as to this concept has been established clearly, and set out earlier in this judgment. The test to be

applied is whether a reasonable person, who had knowledge of all the relevant circumstances, would have a reasonable apprehension

of bias. It is an objective test. The applicants have raised a particular type of objective bias - that of prejudgment.

The test is objective, it is not governed by concerns of the applicants, it is not determined by statements of the Tribunal. It is that

objective test which I have applied.

The applicants submitted that there has been prejudgment by the Tribunal. It has been held by this Court in the earlier O'Callaghan

case that the Tribunal erred in its decisions as to the disclosure of the documents in issue, that it was incorrect when it refused to

disclose them. This Court has now ordered that they be disclosed. However, it is well settled law that bias may not be inferred from a

pattern of erroneous decisions. So the previous errors of the Tribunal are not a basis from which to establish, by inference, objective

bias/prejudgment.

There has been extensive evidence as to certain actions of the Tribunal. The question is whether there is a basis, external to the

decisions of the Tribunal, from which a reasonable person would have a reasonable apprehension of bias, of prejudgment, by the

Tribunal. Whether, from the documents now given to the applicants, a reasonable person would have a reasonable apprehension that

the Tribunal had prejudged the credibility of Mr. Tom Gilmartin, favourably, and that of Mr. Owen O'Callaghan unfavourably. I am

satisfied that a reasonable person would not have such an apprehension.

The Tribunal has not made any express decision as to the credibility of either Mr. Tom Gilmartin or Mr. Owen O'Callaghan. The Tribunal

has repeatedly stated that it has not made decisions on credibility, that it would make its decisions after the public hearings. These

hearings have not yet concluded. Such an approach is consistent with its policies and rules and with the staged processes of such an

inquiry. Of course the statements of the Tribunal are not conclusive of the issue. An objective test has to be applied. This I have

done. I am satisfied that no express or settled view has yet been reached by the Tribunal as to the credibility of Mr. Tom Gilmartin or

Mr. Owen O'Callaghan. Nor could an inference of prejudgment be drawn from the circumstances, the documents before the Court. The

Court was asked to infer prejudgment from the actions of the Tribunal. As the previous erroneous decisions of the Tribunal may not

ground such a finding of prejudgment, it is the seven specific examples submitted which form the core of the submissions. I have

dealt with these in the judgment, and found they did not establish bias and dismissed them. There is no violation of the applicants'

rights in this Tribunal proceeding with its work. Insofar as there was a breach of rights this has been remedied by the earlier

O'Callaghan case. Thus there is no question of needing to balance one set of rights against another.

The Court was faced with extensive facts and it was submitted these established bias by the Tribunal. I have not found this to be so.

There is no doubt that there were errors by the Tribunal, but they are not a foundation upon which the applicants' claim may be built.

A remedy has been given for those errors.

The extensive use of fact, to micro-analyse decisions of the Tribunal, as if this were an appeal process, together with the fact that

the erroneous decision of the Tribunal have already been remedied by this Court in the earlier O'Callaghan case, and the law that such

errors may not ground a finding of objective bias, indicate an inappropriate use of the process of judicial review.

The matters raised in this case refer to issues yet to be determined by the Tribunal. The applicants have not established bias or

prejudgment by the Tribunal. Therefore there is no basis upon which to stop the Tribunal proceeding with its work.

For the reasons given in this judgment I would dismiss the appeal.