The Tribunal of Inquiry into Certain Planning Matters & Payments
 August 2, 2015
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NOTICE REGARDING 2ND INTERIM REPORT OF THE TRIBUNAL

The Gogarty Section and related chapters have been removed temporarily from the 2nd Interim Report uploaded to this site pending review and amendment. A corrected version of the full report will be placed on the website as soon as this task has been completed. 

27th January 2015 

The Tribunal is concerned that some recent media reports have provided information relating to the Tribunal which is inaccurate or incomplete. The purpose of this information statement is to ensure that correct information is made available.

Statement of the Planning Tribunal:
1.    The Tribunal was established in late 1997, and commenced public
hearings in 1998. Mr. Justice Feargus Flood was appointed Sole
Member of the Tribunal in 1997 and remained as such until
September 2002, whereupon the Tribunal was reconstituted
to incorporate three Members. Mr. Justice Flood was the
Chairperson of the reconstituted Tribunal until his retirement
in June 2003, whereupon Mr. Justice Alan Mahon was appointed
Chairperson. Judges Mahon, Faherty and Keys comprised the
membership of the tribunal from 2003 onwards.
 

2.    Mr. Justice Flood, as Sole Member of the Tribunal, completed

public hearings into a number of modules of inquiry in late 2001.

He published his Report in September 2002, known as the 2nd

Interim Report (a section of that Report was withheld from

publication at the time because of pending criminal proceedings

against Mr. George Redmond, and was released in 2003, as

the 3rd Interim Report).

 

3.    Between 1997 and 2002 Mr. Justice Flood conducted his
investigations in accordance with procedures and practices
which he believed and understood were fair, appropriate
and in compliance with legislation and relevant decisions
of the Superior Courts, and did so with the benefit of legal
advice, both internal and external. One such practice
involved the redacting of some information in witness’
statements. This was done in an effort to confine lines
of inquiry to those relevant to the Tribunal’s Terms of
Reference and in the interests of the efficient investigation
of lengthy and complex investigations, and to avoid
revealing the identities of individuals who were not
immediately involved in the Tribunal’s inquires.
 
4.    New modules of inquiry commenced in late 2002,
and continued until late 2008. The current Chairperson
and Members of the Tribunal presided during this
period (as did Mr. Justice Flood until his retirement in
mid 2003).
 
5.    The same practice of redacting what was believed to be
irrelevant material was continued post 2002, until 2005 so that
portions of statements and records of telephone conversations
by the late Mr. Tom Gilmartin were redacted in the same way as
statements of the late Mr. Gogarty had been earlier. This practice was
legally challenged by Mr. Owen O’Callaghan, and in a decision of the
Supreme Court in March 2005, the Tribunal was directed to release Mr.
Gilmartin’s statements in their entirety (with some minor redactions
permitted by the High Court in July 2005) to Mr. O’Callaghan on the
basis that Mr. O’Callaghan, as an individual who was facing allegations
of wrongdoing by Mr. Gilmartin, should be entitled to use their content to
test Mr. Gilmartin’s credibility.
 
6.    Having regard to that decision of the Supreme Court, the Tribunal, over
a  number of months, took steps to ensure that Mr. O’Callaghan and all
other witnesses henceforth received full and un-redacted copies of
witness’ statements. Essentially the only statements captured by
the Supreme Court decision in the then current module of inquiry were
those of Mr. Gilmartin.  The tribunal however adopted the principle of
that decision and altered its procedures in relation to its inquiries
from 2002 onwards. All affected parties were provided with the
opportunity to recall or re-examine Mr. Gilmartin if they so wished
in order to question him in relation to previously redacted portions
of his statements.
 
7.    The current Tribunal did not at that time (i.e. late 2005) consider
Mr. Gogarty’s statements or revisit the modules of inquiry which had
been conducted by Mr.Justice Flood prior to his 2nd and 3rd Interim
Report, as it did not believe that it was required to do so, nor was it
legally entitled to reopen modules of inquiry which had been
conducted solely by Mr Justice Flood in the years prior to the
appointment of the current Tribunal.  Had the current Members of
the Tribunal decided to reopen modules of inquiry in which they
had had no role there would have not been an opportunity for
affected parties to re-examine Mr. Gogarty, as Mr. Gogarty was
by then seriously ill and died in October 2005. The Tribunal
proceeded to act upon the decision of the Supreme Court,
only in relation to its then current inquiries.
 
8.    In the case of Murphy –v-  Flood  [2010] the Supreme
Court quashed the non-cooperation findings of hindrance
and obstruction made by Mr. Justice Flood in his 2nd
Interim Report against the Murphy interests, and quashed
the subsequent 2004 costs orders refusing them their
costs, which had been made arising from the hindrance
and obstruction findings. The Tribunal has now applied
the benefit of that decision to a number of parties including
Mr. George Redmond, Mr. Ray Burke, Mr Oliver Barry, Mr
James Stafford, Mr Thomas Brennan, Mr Joseph McGowan,
Mr John Finnegan, and the Bailey Interests.  Those parties
are now deemed entitled to costs which had previously been
refused, and which they would have been entitled to in the
absence of such hindrance and obstruction findings.
 
9.    The Tribunal has also moved to withdraw adverse findings,
based on the evidence of Mr. Gogarty, made by Mr. Justice
Flood in his 2nd and 3rd Interim Reports against a number
of parties including Mr Ray Burke, Mr George Redmond, the
JMSE Interests and the Bailey Interests.In relation to the
Century Module and the Brennan and McGowan Module,
adverse findings against Mr Ray Burke, Mr Oliver Barry,
Mr James Stafford, Mr John Mulhern, Mr Thomas Brennan,
Mr Joseph McGowan and Mr Jack Foley remain in place
and have not been withdrawn. It is not the case that Mr.
Justice Flood’s 2nd and 3rd Interim Reports have been
withdrawn in their entirety.
 
10.The current Tribunal Members published their Final
Report and Recommendations in late March 2012
following 589 days of public hearings conducted by
them since October 2002, and including the evidence
of 427 witnesses. Nothing in that report is affected by
the O’Callaghan or Murphy decisions and none of its
adverse findings have been withdrawn or altered as a
consequence of those decisions.   One party, Mr. Owen
O’Callaghan, has legally challenged certain adverse
findings made against him. That challenge failed in the
High Court, and has been appealed by Mr. O’Callaghan
to the Court of Appeal.
 
11.Arising from the Tribunal’s Final Report, some 305
costs orders have been made to date. 4 await completion. 
Of the orders made approximately 24 are orders for
reduced costs on foot of findings of non-cooperation
made as part of a separate process subsequent to the
publication of the Final Report.   Of this number, one
individual has successfully legally challenged his award
of reduced costs and another has unsuccessfully legally
challenged his award of reduced costs.  Furthermore no
party referred to in the Final Report has been refused his
or her entire costs, and the vast majority of parties have
been awarded their full costs.
 
12.The total cost of the Tribunal has been estimated
(in 2014) by the Tribunal at €159m. This figure was
calculated on the basis that all parties received all
their costs, as did previous estimates provided by the
Tribunal. The recent revision of costs orders will not
therefore increase this estimate.
26th January 2015

RECENT MEDIA REPORTS REGARDING THE TRIBUNAL'S COSTS

Some recent media reports have speculated that the Tribunal’s estimate of its total costs (€159m) incurred between its establishment and the completion of its work which figure is inclusive of its estimate of total outstanding Third Party costs of € 48.5 million ( both as of May 2014 ) ,are  no longer accurate as a consequence of the outcome of the legal challenge taken by Mr. George Redmond to the 2002 Report of the Tribunal’s then Sole Member, Mr. Justice Flood, and the associated costs decisions arising therefrom.  Such speculation is incorrect. 

 

The Tribunal’s estimate of outstanding Third Party costs in the amount of € 48.5 million  was provided to the Department of the Environment in May 2014.   This estimate was based on the assumption that all third parties (including Mr. Redmond) received their full costs, following (where appropriate) an adjudication of those costs by the Taxing Master of the High Court.  The recent Redmond case decision does not alter this estimate of € 48.5 million  nor the estimate of € 159 million in relation to the total cost of the Tribunal since its inception. 

 

The Tribunal’s estimates are based  on actual costs paid, or likely to be paid, and not amounts claimed for costs. It has been the experience of the Tribunal that in very many cases, third party claims for costs have been grossly exaggerated and bear little relevance to the costs actually paid or likely to be paid following negotiation and /or the Taxation process.

   

The Final Report of the Tribunal Vol. V - Carrickmines Module is now available for download. To download the report please click here

The Final Report of the Tribunal is now available for download. To download the report please click here

Notice : The Final Report of the Tribunal is now available in hard copy from Government Publication Sales Office, Molesworth Street, Dublin 2. Tel 01-6476879 - Cost: €25

CORRECTIONS - RE : MAHON TRIBUNAL FINAL REPORT

  1. On page lvi of the table of content and on page 2502 Chapter seventeen, of the Tribunal’s final report,  Mr Conor Haughey’s name is mistakenly stated instead of Mr Ciaran Haughey.  Mr Conor Haughey had no involvement with the Tribunal inquiries. The Tribunal has unreservedly  apologised to Mr Conor Haughey for this error. The error was corrected at 2:30pm on Friday the 23rd March, 2012.
  2. On page 2504 of the Tribunal's final report (Chapter Seventeen), Mr Niall Kenny is mistakenly referred to as Mr Michael Kenny. This error has been notified to the Tribunal by Mr Niall Kenny's Solicitors on 24 April 2012.
  3. Correction of error in the Tribunal's Final Report relating to Mr. Des Richardson: 
  • In the course of the Tribunal's public hearings in the Quarryvale Module, Mr. Richardson (together with others) was questioned extensively in relation to a payment of IR£5,000 to Mr. Bertie Ahern in late December 1993 and, in that context, the operation by Mr. Richardson of a bank account held in the name of Roevin Ireland Limited (Roevin).
  • In its Final Report the Tribunal made a number of findings relating to Mr. Richardson and the operation of the Roevin bank account, (at Paragraphs 4.162 to 4.167, Chapter Two, Part 10). Paragraph 4.162 erroneously indicated that Mr. Richardson has claimed not to have knowledge of the origin of IR£39,000 which opened the Roevn bank account in October, 1992. In fact, in the course of the extensive questioning of Mr. Richardson in relation to the operation of the Roevin bank account, he was not specifically questioned as to the source of the said IR£39,000. Therefore, all such reference to the said IR£39,000 in the Final Report, including any criticism of Mr. Richardson for failing to identify the origin of this sum are withdrawn.   

CORRECTIONS - RE : MAHON TRIBUNAL FINAL REPORT - CHAPTER 19 - CARRICKMINES

  1. Please note the following amendment on page 137, paragraph 25.05 of the Tribunal's final report (Chapter Nineteen - Carrickmines),

The sentence;

"He told the Tribunal that the only landowner that he ever met while in Dun Laoghaire/ Rathdown County Council was Mr O'Halloran."

is replaced by;

"He told the Tribunal that the only landowner that he ever met in the context of the County Development Plan while in Dun Laoghaire/ Rathdown County Council was Mr O'Halloran."

 

Tribunal Statement 7th March 2012

The Tribunal has recently received a number of media queries relating to the use of electronic video/audio recording of evidence given by witnesses in the course of its public hearings. The purpose of this statement is to deal with such queries.
 
1.       Evidence at public hearings has been electronically video/audio recorded since 2002 for internal use only. Such electronic recording has proved useful on a number of occasions in correcting errors in the stenographically recorded transcripts of evidence. A number of such errors were corrected at the request of witnesses.
2.       References were occasionally made to such electronic recording in the course of the public hearings. Furthermore the camera recording the witnesses giving evidence was clearly visible at all times.
3.       These electronic recordings have never been shown or released to any third party, and will not be in the future.  

 

 

 

 

 

 

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The Tribunal of Inquiry into Certain Planning Matters & Payments
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Dublin Castle, Dublin 2
Ireland
Tel: +353 (0)1 633 9800
Fax: +353 (0)1 633 9890
Email: info@flood-tribunal.ie
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