BUSINESSMAN Oliver Barry has brought a High Court case aimed at recovering some €610,000 legal costs incurred by him arising from his involvement with the planning tribunal.
Mr Barry, a former head of Century Radio, is challenging the Flood/Mahon tribunal's refusal to grant him his legal costs on the basis of the tribunal's 2002 finding he obstructed and hindered its inquiry into a IR35,000 payment made by him to Communications Minister Ray Burke.
The then tribunal chairman Mr Justice Fergus Flood had in 2000 found that was a corrupt payment made to serve the interests of Century Radio and rejected Mr Barry's claim it was a political donation. Mr Barry was refused his costs in 2004 and that refusal was upheld by tribunal chairman Alan Mahon in 2011.
In judicial review proceedings that opened yesterday before Ms Justice Iseult O'Malley, Mr Barry, Hollystown Golf Club, Hollystown, Dublin 15, is not challenging the finding of corruption although he maintains he gave truthful evidence to the tribunal.
Much of Mr Barry's evidence was accepted by the tribunal but it rejected his evidence as to the motive for the payment to Mr Burke, his counsel Hugh Mohan SC said.
Mr Mohan said he was challenging the finding of obstruction and hindrance mnade against Mr Barry insofar as that formed part of the tribunal's rationale for refusing costs.
Counsel said he was relying on a 2010 Supreme Court ruling which upheld claims by two directors of Joseph Murphy Structural Engineers that the tribunal was not entitled to refuse costs on the basis of findings of obstruction and hindrance made by it against them. The Supreme Court found the tribunal had no power to make findings of obstruction and hindrance.
Mr Barry's claim was "on all fours" with that ruling and he was therefore entitled to his costs, counsel said.
Dealing with arguments by the tribunal that he was out of time to challenge the finding of obstruction and hindrance in Mr Barry's case, Mr Mohan submitted Mr Barry was entitled to rely to the JMSE ruling.
The court had jurisdiction to extend the time to bring Mr Barry's challenge and should do so, he argued.
Mr Barry had not appealed the 2004 costs refusal at that time because he was under considerable financial pressure and was also aware of the JMSE case and had decided to await the outcome of that.
Mr Barry had incurred substantial costs due to his involvement with the tribunal, counsel said. When he met with tribunal counsel in July 2000, he was given the misleading impression he would be called to give evidence before the end of July 2000 and would be finished within weeks but his evidence ultimately did not begin until December 2000 and dragged on into 2001, running for some 14 days.
James O'Reilly SC, for the tribunal, argued there was no basis to grant an extension of time and the challenge should be dismissed.
In the proceedings against the tribunal, Ireland and the Attorney General, Mr Barry wants a declaration quashing the tribunal's finding in its second interim report of September 26, 2002, he obstructed and hindered it. He claims the findings are in excess of the tribunal's powers and breach fair procedures and his constitutional rights.
He also wants orders quashing the tribunal's decision of March 7, 2011, upholding the 2004 decision refusing him costs. He had asked the tribunal to review the costs matter in light of the JMSE decision but Judge Mahon said the costs ruling should stand.
The case continues.