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Unravelling Gogarty

By Frank Connolly. Planning Tribunal costs as well as findings based on James Gogarty’s evidence are being successfully challenged (Oct 14).

IT is bizarre that the very people whose wrongdoing gave birth to the long-running Flood/Mahon tribunal into planning and payments may yet get the Supreme Court to reverse the decision to withhold payment of their costs for obstructing and hindering the inquiry. In 2010, the Supreme Court ruled that Joseph Murphy and his fellow director of JMSE, Frank Reynolds, should be granted their legal costs as the tribunal had no right to withhold costs over their obstruction as this implied criminal behaviour over which the inquiry had no remit.

In July, the now 90 year old former assistant city and county manager for Dublin, George Redmond, won his battle for legal costs on the same grounds. Redmond, you may recall, was found to have received large amounts of cash from the likes of JMSE and builders, Brennan and McGowan, and was famously detained by the Criminal Assets Bureau in February 1999 at Dublin Airport with a suitcase containing over €300,000 in cash on his way back from the Isle of Man.

Former minister Ray Burke, will probably seek to reverse the tribunal decision to withhold his substantial bill of costs which initially topped €10 million

Following in his footsteps, the main focus of the tribunal’s early inquiries, former minister Ray Burke, will probably seek to reverse the tribunal decision to withhold his substantial bill of costs which initially topped €10 million. Burke’s acceptance during the 1989 general election of €30,000 from JMSE sparked the investigation in the first place. It was established following his dramatic resignation as foreign minister just six months after his appointment by Bertie Ahern to the latter’s first ever cabinet, in June 1997.

Lawyers for Burke and Redmond should not be breaking out the champagne just yet, however, as the reduction in taxable (ie certifiable) legal fees by some 50% since the tribunal ruling at the height of the boom, and the fact that the Taxing Master assesses costs at current rates, means that they will not enjoy anything like the financial bonanza they might have enjoyed a few years back. The collapse in legal fees is also reflected in the likely final costs of the tribunal which are expected to come in at closer to €160 million rather than the earlier estimate by Judge Alan Mahon of €350 million. This is inclusive of the hit from the Burke and Redmond appeals, and possibly others, which if successful, are unlikely to reach €10 million in total.

However, another decision by the Supreme Court has wider repercussions for the tribunal’s third interim report into Redmond, and possibly the earlier report arising from the Burke investigation which was published in September 2002. Following another Supreme Court ruling, the substantive findings of the report may be overturned as questions have arisen over the decision by the tribunal to withhold from witnesses some of the allegations made to it in private by chief witness, James Gogarty, concerning other prominent individuals who were not party to the investigation. The tribunal’s legal team did not think the statements were relevant to their investigation or worthy of public hearings. However, crucially, they have admitted in defence of this decision that they were also seeking to limit “collateral credibility issues” which might arise if some of Gogarty’s private utterings were released.

Last July, the tribunal accepted that the Gogarty allegations were improperly withheld. As a result of this concession, Redmond has been given the right to challenge the substantive findings by the tribunal against him.

Over the years, the tendency of the High Court to generally uphold tribunal decisions and the propensity of the Supreme Court to reject them has become a phenomenon. Adrian Hardiman, who represented Liam Lawlor in his early dealings with the inquiry and is in general hawkish about the overbearing state, has been the most vocal critic of the tribunal from the Supreme Court bench over the years. He was supported by judges Denham and Murray in the July hearings. It was for this reason that the tribunal withdrew its opposition to Redmond’s appeal, leaving the way clear for a challenge to the substantive findings of corruption against him in the High Court.

Now to the dismay of many it seems that much of the early work of the tribunal and the findings of corruption against a number of people could be undone despite the overwhelming evidence, substantiated by other witnesses and extensive financial and other documentation separate to Gogarty’s evidence, of their misbehaviour over many years.

There has been no challenge into the findings of Mahon and his colleagues arising from the investigation into the Quarryvale, and related modules including the allegations by Tom Gilmartin which ultimately led to the political downfall of Bertie Ahern; or into other post-Gogarty modules such as Cherrywood. Which is just as well as it might have affected the prospects of former distinguished tribunal member, Mary Faherty, who was appointed to the High Court in recent days. •