Justice Flood hid evidence
Supreme Court rules judge had acted without any justification
Published 22/04/2010 | 05:00
THE Supreme Court has made a searing censure of former planning tribunal chairman Mr Justice Feargus Flood in a landmark judgment yesterday.
The withering attack on Mr Justice Flood's competence as a tribunal chairman came as the court overturned his decision to refuse two businessmen their legal costs, estimated to run to millions of euro.
Mr Justice Adrian Hardiman said that material relevant to the credibility of the key witness James Gogarty, the pensioner who became a celebrity from the tribunal, was concealed.
Mr Justice Flood cut out serious allegations against prominent persons, including a politician, when he edited interviews and statements made by the late Mr Gogarty.
According to Mr Justice Hardiman, it was a "cause of serious concern" that this potentially explosive material included grave claims of impropriety that were relevant to Mr Gogarty's credibility.
"It was concealed without justification," said Mr Justice Hardiman.
"By withholding that material the tribunal knew, as any lawyer must have known, that they were gravely hampering the appellants in making their defence," he continued.
He added: "It is chilling to reflect that a poorer person, treated in the same fashion by the tribunal, could not have afforded to seek this vindication."
The material discovered in the appeal showed that Mr Gogarty had apparently made statements to the tribunal, or to others, alleging "serious improprieties" against at least four other people.
Mr Gogarty claimed to know that money was paid not just to Ray Burke but also to another politician in connection with a named site and the two politicians had co-operated.
Mr Gogarty was not proposing to name the other politicians, the site or the date, but the relevance to matters before the tribunal was obvious, said the Supreme Court judge.
Either Mr Gogarty was telling the truth or not, said Mr Justice Hardiman.
The other persons against whom allegations were made were not as prominent as the second politicians but they were well known.
Mr Justice Hardiman said he had "absolutely no reason" to believe the allegations against those persons and, given their constitutional right to a good name, he intended to presume the claims (made by Mr Gogarty) were false.
However, said Mr Justice Hardiman, that merely emphasised the importance of this material.
The five judges ruled that the tribunal had no power to find that two directors of JMSE Ltd were not entitled to their legal costs because they had hindered and obstructed the tribunal.
Yesterday's decision setting out ground rules for assessing the legal costs of witnesses in tribunals will be closely scrutinised by the legal profession and witnesses at planning and other tribunals.
The appeal to the Supreme Court taken by Joseph Murphy Junior and Frank Reynolds, the chairman and MD of JMSE respectively, was against the Flood/ Mahon planning tribunal and the State.
They faced an enormous legal bill estimated to run to several million euro after their 160 days involvement in the tribunal.
Mr Justice Flood's reports of 2002 and 2004 found that Mr Murphy Junior and Mr Reynolds of JMSE Ltd were involved in making corrupt payments to former minister Ray Burke and George Redmond of Dublin City Council.
The tribunal chairman also found they obstructed and hindered the tribunal by giving a false account of relevant events and falsely constructing an untrue alibi.
Ms Justice Susan Denham said that the costs ruling arose from the findings of obstruction and hindrance which, in turn, was inextricably linked with the finding of corruption against the directors of JMSE.
The tribunal did not have jurisdiction to make findings of obstruction and hindrance in the context of a reference to a criminal offence, said Ms Justice Denham.
And it was not entitled to determine that, in fact, criminal offences occurred, she added.
The message from yesterday's judgment was that tribunal's must not conceal relevant details about witnesses or make findings alleging criminality.