By Frank Connolly
The appointment of retired High Court judge, Daniel O’Keeffe, as chairperson of the commission of investigation to examine a series of financial transactions by the Irish Bank Resolution Corporation in the wake of the Siteserv/IBRC controversy earlier this summer must have the vulture funds and their corporate advisors cowering in their offices in Dublin’s docklands.
O’Keeffe has been chairperson of the Standards in Public Office Commission since early 2014 and previously served as chair of the Irish Takeover Panel during the boom to bust years from 1997 to 2008. His reputation for governments as as a safe pair of hands is also reflected in his position as a member of the Commission for Public Service Appointments and the Inquiry Panel appointed by the Central Bank.
A qualified accountant, O’Keeffe was born in Ennis, Co. Clare in 1943 and educated at Clongowes Wood College. After UCD and King’s Inns he joined the Bar in 1964 and was appointed a senior counsel in 1985 before eventual appointment to the High Court in 2008. He has a young family.
A qualified chartered accountant, O’Keeffe, adjudicated on dozens of commercial disputes in the court although his productivity in terms of the number and speed of delivery of written judgements was at the lower end of the scale.
Among the high profile cases he oversaw before his retirement two years ago was the dramatic prosecution of companies and individuals involved in the multi-million euro illegal dumping racket in County Wicklow.
The case opened in 2009 when astonishing allegations of wrong-doing by public officials, including senior officials and an authorised officer of Wicklow County Council were aired, before its lengthy adjournment – for two years.
During the early hearings, O’Keeffe learned that authorised officer, Donal O’Laoire, was employed by the Council to identify the nature and source of pollution at the massive Whitestown landfill in west Wicklow where a number of companies deposited over a million tonnes of commercial, domestic and hazardous hospital waste over several years.
It emerged that O’Laoire had engaged in discussions with landowner, John O’Reilly, a defendant in the proceedings, with a view to securing a contract worth in excess of €30m to remediate the site. The court also heard that O’Laoire had discussed this ambitious plan with then county manager, Eddie Sheehy and the Council head of services, Michael Nicholson, in 2002. It emerged in the proceedings that O’Laoire was negotiating with O’Reilly to purchase or lease the land while he was investigating the landowner in respect of criminal charges related to the illegal dumping.
In late 2002, O’Reilly refused an annual lease offer of €100,000 from O’Laoire’s company, Environmental Remediation Ltd., thus preventing the investigator from obtaining the lease he required in order to secure the necessary Environmental Protection Agency licence to clean up the site.
Instead, he sold the land to Brownfield Restoration Ltd, another defendant in the case brought by Wicklow County Council, for a sum of about €2m. The company obtained an EPA licence, which was more restrictive than it sought, but was then obstructed from commencing remediation work and from developing a waste facility on the site. Brownfield along with O’Reilly, and companies Dean Waste and A1 Waste were then pursued by the Council in its effort to recoup the multi-million euro cost of cleaning up the site.
This followed a damning 2005 judgment by the European Court of Justice which found Ireland in breach of the Waste Framework Directive as a result of the wholesale illegal dumping.
After 26 days of hearings, during which evidence deeply embarrassing to the Council management was aired, the case was adjourned by O’Keeffe in October 2009.
Allegations of conflicts of interest involving O’Laoire and his company were made and it was claimed that he was in contempt of court for breaching an order by the judge not to discuss the evidence with other witnesses, including county manager, Eddie Sheehy, before his own cross examination by Council for the defendants.
O’Laoire was a key witness for the Council but in spite of O’Keeffe’s ruling had obtained copies of Sheehy’s evidence from the law agent for the Council and had discussed issues central to his cross-examination with another senior Council official and members of its legal team before he entered the witness box.
O’Laoire, it also emerged, had helped prepare the Council’s objection to the application by Brownfield for an EPA licence even though he had himself sought to secure the contract and licence for the remediation work only months earlier. He had also been the chief witness in earlier and successful criminal cases taken by the Council against the illegal dumpers. Extraordinarily,
it also came out in evidence that O’Laoire had failed to disclose the illegal dumping by the Council at Whitestown over a lengthy period, dumping which he had been employed to investigate.
When the case resumed in October 2011, after numerous delays caused in no small part by the Council’s failure to comply with the court’s discovery orders, it was stated by Council lawyers in court that O’Laoire was incommunicado. The former member of the Irish defence forces was apparently in the Far West and was not available to continue his evidence.
Only a last minute and dramatic intervention by then environment minister, Phil Hogan, saved the emergence of even more damning evidence prepared by the defence against the Council and some of its most senior officials.
Accepting an application from lawyers for the Council, O’Keeffe adjourned the substantive proceedings after officials from Hogan’s department arrived in court waving a promise of up to €50m to remediate the site, ostensibly in order to comply with the EU judgement.
Over three years later, fresh court proceedings have now been initiated by Brownfield Restoration which claims that less than €5m has been spent by the Council on cleaning up the Whitestown dump and which, the company says, continues to leech pollutants.
In affidavits presented to the High Court in late June, Ray Stokes, chief executive of Brownfield also claims that the earlier High Court case was frustrated and delayed by the Council and that county manager Sheehy, who retired earlier this year, had discussed and circulated his evidence to other Council staff in breach of O’Keeffe’s directions.
The affidavits contend that the court had not properly investigated the illegal dumping by the Council on the site or the plans by Council staff to profit from its remediation after they had prosecuted Brownfield and others.
Stokes claims that the sudden truncation of the High Court case following the dramatic intervention by the environment minister prevented the court from examining the explosive and serious allegations he had submitted.
Daniel O’Keeffe retired in 2013 while the case of the massive illegal dumping in the garden county remains unresolved. In October that year, the Council insisted that it was remediating the site by removing more than 84,000 tonnes of waste and covering the balance of 1.1 million with top soil. That claim will be tested in another case later this year. •
