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1 4 April 2016
W
hen Mr Justice Feargus Flood -
the Planning Tribunal’s original
sole member – embarked on his
mission for the truth, he was
wont to require various parties
to provide him with full and frank “narrative
statements” to answer the many and varied
allegations of wrongdoing made by Mr James
Gogarty in an affidavit he had sworn and sub-
mitted to the Tribunal.
Mr Gogarty was the main agitator for the Tri-
bunal’s establishment in October 1997 but had
not sworn his affidavit until 12th October 1998
- a full year later. Upon receipt, Justice Flood cir-
culated it to Mr Gogarty’s various “accuseds”
on 20th October 1998 with a demand for
responding narrative statements within two
weeks and a notification that public hearings
into Gogarty’s allegations would commence
with Mr Gogarty’s own evidence a week after
that.
Without understanding the furore that
ensued and its backdrop to the contemporane-
ous decisions that have since become the
subject of Supreme Court scrutiny, it would be
impossible to understand what has occurred to
cause the abandonment of most of Justice
Flood’s findings. Certainly none of the Tribu
-
nal’s statements issued since January last year
have helped such an understanding.
The Tribunal’s current members should now
make a full and frank narrative statement about
what really went on to cause the withdrawal of
all bar two of Justice Flood’s Second and Third
Report corruption findings. Their recently
issued, carefully crafted web statement fails
miserably to do so and is disingenuous in the
extreme.
It advises that the Tribunal has made “altera-
tions” to these reports and that the “so revised”
reports are available to download from its web-
site but is short on specifics, long on fudge and
very misleading.
Firstly, far from making mere alterations to
Justice Flood’s two reports, they have been can-
nibalised. The Second Report (dealing with Ray
Burke) has lost nearly 40% of its body weight
and fourteen of its sixteen corruption findings
and the Third (dealing with George Redmond)
is only a shadow of its former self with all cor-
ruption findings gone (though one
controversially persists in the final report). But
how does the statement deal with this?
Yes, it advises that all adverse findings have
been removed against 11 named individuals but
asserts that “adverse findings” remain against
Ray Burke, Tom Brennan, Joseph McGowan,
John Finnegan, Tim O’Keeffe, Roger Copsey and
John Bates.
It would have been more forthright to make
it clear that only two of Flood’s eight corruption
findings against Burke (involving Brennan &
McGowan) have survived the cull and that the
other adverse findings it lists are merely those
of a failure to co-operate with the Tribunal, not
findings of corruption at all.
And the back story outlined for the Reports’
“alterations” and delays in effecting them is
inaccurate, self-serving and, in some cases,
demonstrably untrue.
For instance, taken at face value, the state-
ment suggests that the reason for the finding
withdrawals is that Mr Justice Flood made a
bona fide mistake in a ruling he delivered in
early 1999 concerning the criteria he would
apply in deciding which information he would
and would not circulate to those accused by Mr
Gogarty. It also states that this ruling was only
found unconstitutional in 2005 Supreme Court
judgments delivered in a challenge mounted by
the Cork developer, Owen O’Callaghan, to the
ruling’s continued application by the Tribunal’s
current members in a later module.
The statement also asserts that none of the
parties condemned by Justice Flood’s two
reports challenged the decision “either before
or in the years immediately following” their
publication. Leaving aside the fact that the Tri-
bunal’s collapse has nothing to do with Justice
Flood’s public ruling and that nobody knew
what he was actually up to, this latter claim is
extraordinary in view of proceedings issued by
JMSE and George Redmond in 2004 and 2005
respectively.
Concerning the JMSE case, the statement’s
recital of its significance – that it decided that
Justice Flood was also wrong in assuming the
power to find parties guilty of the crime of hin-
dering and obstructing him – is accurate as far
Far from making mere
alterations to Justice
Flood’s two reports, they
have been cannibalised
Planning Tribunal
is too kind to itself
Delay in addressing Supreme Court
judgments was self-serving and
scandalous
by Anthony Harris
NEWS
April 2016 1 5
as it goes. However, a more frank statement
would have acknowledged that it was the facts
that emerged during those proceedings (and
the later Redmond case) about what Justice
Flood had done with evidence behind the
scenes, and not the O’Callaghan judgments
that has done for his reports.
The JMSE case revealed that, far from making
an innocent mistake, Justice Flood had - accord-
ing to 2010 Supreme Court judgments in that
case - under cover of his 1999 ruling (later con-
demned in O’Callaghan) “concealed without
justification” evidence which was “patently rel-
evant” to his enquiries and, “on one tenable
view, explosive”.
And as if this is not clear enough, the judg-
ments also repeat the explanation offered to
the Supreme Court by counsel representing the
Tribunal (including its current members) for this
concealment. This gives the lie to the Tribunal’s
claim that it was a bona fide error on Justice
Flood’s behalf.
Justice Adrian Hardiman’s judgment recites
that;
“He (the Tribunal’s counsel) then referred to
the Tribunal’s “need to limit collateral credibil-
ity issues: they redacted the documents”.
“The need to limit collateral credibility
issues” is counsel-speak for an admission that
Justice Flood’s purpose was to conceal the fact
that Gogarty was, at worst, a serial liar. And this
concealment happened at a crucial moment in
the Tribunal’s history and remained unknown
to any of the other participants who were
already up in arms about what they did know of
Justice Flood’s plans. It only became known to
the JMSE side when, within weeks of its High
Court outing and very late in the day, the Tribu-
nal complied with a long overdue order for
discovery made against it.
Back in 1998, Justice Flood had circulated the
Gogarty affidavit within days of its receipt and
announced his decision to move immediately to
public sittings – taking Gogarty’s evidence first.
This was more than unusual as it was estab-
lished and best practice for tribunals to follow
the recommendations of the UK’s 1966 Royal
Commission on Tribunals of Inquiry (the Sal-
mond Report) by commencing its proceedings
by delivering an opening statement outlining its
terms of reference and what it was investigat-
ing, summarising its progress to date and
charting how it intended to proceed.
But there was another factor rendering Jus-
tice Flood’s decision surprising: His terms of
reference mandated him to conduct his initial
inquiries in private to determine whether there
was sufficient evidence to warrant launching
hugely expensive public hearings but his deci-
sion to proceed publicly was made within days
of his receipt of Gogarty’s affidavit, and before
notifying the impugned parties of Gogarty’s
allegations let alone giving them an opportu-
nity to respond.
The affidavit had made a series of distinct but
connected - by Mr Gogarty - allegations of
wrongdoing - not just of planning corruption -
against several individuals: There were slush
funds, massive tax evasion, threats and intimi-
dation, Garda and government collusion and
even an attempt on Mr Gogarty’s own life when
a bullet came through his livingroom window as
he sat within.
All parties, save Mr Gogarty’s own represent-
atives, not only demanded a deferral of
Gogarty’s testimony but also sought access to
crucially relevant official files, other probative
material and prior statements made by him. It
was then that Justice Flood decided, for the rea-
sons stated, to conceal some crucial evidence.
But why did it take so long for the Tribunal to
act on the implications of the 2005 O’Callaghan
judgments and the 2010 JMSE revelations?
Having posed this question, its statement is
less than frank in addressing it.
It recites a number of irrelevant facts before
stating that it successfully contested George
Redmond’s proceedings (on delay grounds) in
the High Court but that he appealed to the
Supreme Court. It also states that during that
appeal, the Tribunal had agreed that “certain
references in the Third Interim report would be
deleted” and that…“since then (and indeed
since 2010/2011 in relation to the impugned hin-
drance and obstruction findings and related
costs decisions) the Tribunal has been engaged
in a process which has culminated in the
removal of parts of the Second and Third Interim
Reports”. This is incorrect on many fronts.
Firstly the Tribunal only succeeded in stop-
ping a third of Redmond’s case (his challenge
to corruption findings): High Court Justice Gil-
ligan allowed him proceed with his challenge to
Flood’s hindrance and obstruction findings and
Mahon’s refusal of his costs because the
The JMSE case revealed
that, far from making an
innocent mistake, Justice
Flood had “concealed
without justification”
evidence which was
“patently relevant” to his
enquiries and, “on one
tenable view, explosive”
Most of Gogarty's evidence was discredited
1 6 April 2016
NEWS
Supreme Court had already found in “his”
favour on these issues in its 2010 JMSE
decisions.
However, despite this, the Tribunal appealed
that part of Justice Gilligan’s judgment and,
when forced by an eyebrow-raising Supreme
Court to file its late defence in the challenge
that Justice Gilligan had permitted to proceed,
made the bizarre claim that, although Justice
Flood had found Redmond to have hindered him
and obstructed him, he did not find him guilty
of the crime of hindering and obstructing him.
This led to the Tribunal (that is to say, the tax-
payer) facing an aggravated damages claim for
its unmeritorious defence of Redmond’s case.
And this writer was in court during the
Supreme Court appeal and heard no concession
being made about “certain references” in the
Third Report. On the contrary, the Tribunal’s
counsel, Patricia Dillon SC, was intensely ques-
tioned by the court about what her clients’
attitudes were to Flood’s findings in light of the
revelations in the JMSE case but, much to the
expressed incredulity of the bench, had “no
instructions” on this crucial question.
And when sent off over lunch to take instruc-
tions on the matter, rather than making
concessions or addressing the issue, she
returned with instructions to withdraw the Tri-
bunal’s appeal, withdraw its opposition to Mr
Redmond’s appeal and to agree to pay (or, more
correctly, that the taxpayer should pay) Red-
mond’s High and Supreme Court costs.
It then took until December 2014 before the
Tribunal finally settled Redmond’s case which
has in turn led to the momentous events of
recent weeks.
And it was only after that settlement that the
Tribunal’s current members initiated a reported
“full audit” of Justice Flood’s enquiries leading
to the withdrawal of the vast majority of his
findings over three separate modules. What,
exactly, they found to cause such a retreat has
not yet been revealed but it should be.
EXPLANATORY STATEMENT FROM PLANNING
TRIBUNAL, MARCH
2016
The Tribunal has made alterations to its Second and Third Interim
Reports (published respectively in 2002 and 2004) by removing cer-
tain parts of the Reports, including certain findings. The Reports as
so revised are available for viewing and downloading
(1) All adverse findings have been removed in relation to Oliver Conlon,
Jack Foley, Oliver Barry, James Stafford, John Mulhern, Joseph
Murphy Snr, Joseph Murphy Jnr, Frank Reynolds, Thomas Bailey,
Michael Bailey and Caroline Bailey.
(2) Adverse findings remain in relation to Ray Burke, Tom Brennan,
Joseph McGowan, John Finnegan, Tim O’Keeffe, Roger Copsey and
John Bates.
(3) In relation to George Redmond, adverse findings in the Third
Interim Report have been removed, but a finding of corruption
made against him in the Fifth and Final Report remains. (see below)
SOME QUOTES FROM JUDGMENT OF ADRIAN
HARDIMAN IN THE 2010 JMSE CASE
On Flood’s reasoning
“In the following para. 14-100, the Tribunal expressed itself as
follows:
“The Tribunal is satisfied that Mr Murphy Jnr. could have attended a
meeting in Dublin on the 8th June 1989 notwithstanding the evidence
that he had received telephone calls in London both that morning and
that night. A meeting could have taken place at JMSE’s premises on the
afternoon of the 8th June provided Mr Murphy Jnr. had flown from
London to Dublin and returned on the same day” (emphasis added).
At p. 132, para. 14 -117 the Tribunal concludes “that the alibi evidence
does not prove that Mr Joseph Murphy Jnr. could not have attended at
least three meetings in Dublin between the 31st May and the 15th June
1989” (emphasis added)...
However, by the time it came to set out its findings at p.139, the Tri-
bunal saidthat “[t]the parties present at the meeting [where the money
was paid] were Mr Burke, Mr Michael Bailey, Mr Joseph Murphy Jnr.
and Mr James Gogarty” (emphasis added). At this point, “could have”
has been first transposed into “can’t prove the contrary” and then to
“were”, an unqualified positive finding of fact. The seamless (to use
Mr Cush’s word), silent and unreasoned transition from bare possibil-
ity to an unqualified statement of fact seems possible only by a virtue
of a reversal of the onus of proof. No explanation whatever is offered
of it. This is unsatisfactory in itself. The development in the findings
from “could have” to “can’t prove the contrary” to “did” is an unrea-
sonable one. It is, in legal terms, irrational”.
On Flood’s concealment of evidence
On the hearing of this appeal, counsel for the Tribunal (who had not
been involved as one of the counsel appearing for the Tribunal at its
own sittings) said that he did not stand over the redaction and non-
production of the material in question. He said that “Bearing in mind
the decision of this Court in O’Callaghan, I am conceding that the docu-
ment should have been given to the Appellants.’’ By way of explanation
he said that Judge Mahon (presumably an error for Mr Justice Flood)
thought that the documents in question were not relevant but in any
event he said that the documents were irrelevant to the judicial review
proceedings, even though it was in these proceedings that the docu-
ments were eventually disclosed. He then referred to the Tribunal’s
“need to limit collateral credibility issues: they redacted the docu-
ments.” It is not entirely clear to me how the last matters fit in with the
concession recorded above. And the allegation about the second poli-
tician, at least, is not a “collateral” issue on any view. It was concealed
without justification”.
On the Tribunal’s concealment of its concealment
It is salutary to remember that the concealed materials would never
have come to light in this case had the appellants not taken these pro-
ceedings. 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.”
On the Tribunal’s arguments about confidentiality and its approach to
its obligations of disclosure
The named person, who was a journalist, gave tapes and transcripts
of his conversation to Mr Gogarty and notes of them to the Tribunal but
required a certain confidentiality which, in the Tribunal Counsel’s view,
prevented their disclosure to the parties Mr Gogarty was accusing. It
is noteworthy that this defence or explanation of non-disclosure was
not offered on the hearing of the appeal and appears wholly unstate-
able, particularly if reference is made to the judgment of Geoghegan
J. in O’Callaghan v Mahon, where a plea of confidentiality was advanced
as a basis for non-disclosure.
A witness cannot dictate how a court or tribunal will treat his evi-
dence, or any items he produces.
Anthony Harris was latterly solicitor to the late George Redmond
