Thursday 18 January 2018

Mahon Tribunal fails to stop Oliver Barry challenge

Tim Healy

THE MAHON Tribunal has failed to stop businessman Oliver Barry's legal bid to quash tribunal findings that he obstructed and hindered its inquiry into claims that he had made a payment to former Fianna Fail Minister Ray Burke.

The former Century Radio chief can now go ahead with his judicial review proceedings which also includes a challenge to the Tribunal's refusal to grant him his legal costs - which he says are more than €610,000 - arising from his involvement with the Mahon/Flood Tribunal.

Mr Justice John Hedigan today refused the Mahon Tribunal's application to set aside the leave granted to Oliver Barry in July last year to mount his legal challenge.

In his action against the Tribunal, Ireland and the Attorney General, Mr Barry wants a declaration quashing findings in the Tribunal's second interim report of 26th September 2002 that he obstructed and hindered it. He claims the findings are in excess of the Tribunal's powers and in breach of fair procedures and his constitutional rights.

The Tribunal found that Mr Barry made a corrupt payment of IR35,000 to the then Minister for Communication, Ray Burke in May 1989. In 2004 the Tribunal refused to give Mr Barry his costs on the basis of a finding of obstruction and hindrance having been made in relation to him.

Mr Barry's present challenge is as a result of the Supreme Court judgment - Joseph Murphy vs Flood - to the effect the Tribunal was not entitled to make findings of obstruction and hindrance.

In that case, the Supreme Court overturned the Tribunal's refusal to allow two directors of Joseph Murphy Structural Engineers - Joseph Murphy Junior, Frank Reynolds - and JMSE Ltd their multi-million euro costs of their dealings with the tribunal over 163 days. The judgment set out important parameters for assessing entitlement to costs of dealing with tribunals.

Mr Barry, Hollystown Golf Club, Hollystown, Dublin 15, is also seeking orders quashing the Tribunal's decision of March 7, 2011, upholding a previous decision refusing him his costs.

He is also seeking damages for breach of his constitutional rights and rights to fair procedures.

The Tribunal had sought to have the permission to bring a legal challenge granted to Oliver Barry in July last year to be set aside on several grounds including that the proceedings and reliefs claimed are out of time and are an abuse of process and should be set aside in the interests of justice and / or in the public interest.

The Tribunal maintained that time ran from October 15, 2004 when it first refused Mr Barry his costs.

Mr Barry submitted his legal fees from his involvement with the Tribunal ultimately cost him €611,000 by December 2002 and when the costs refusal was issued in 2004 he was earning €46,000. As a result he was not in a financial position to acquire further borrowings to fund a legal challenge to the costs refusal.

Yesterday, Mr Justice Hedigan said he had to bear in mind that this was not the substantive hearing. The real reason given by Mr Barry for the lengthy delay involved was his impecuniosity at the time caused, he claimed by his poorly structured appearances at the Tribunal. The Judge said Mr Barry further claims he was advised that any challenge to the 2004 costs decision would be unlikely to succeed.

"He says that he could not afford to take the chance. I can accept the arguability of those reasons as possibly excusing the undoubtedly inordinate delay. Whether they do or not is a matter for the substantive hearing," the Judge said.

Although the delay period requiring justification at the substantive hearing stage is clearly inordinate the question of excusability and location of the balance of justice was very arguable, the judge said.

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