Healy O'Connor

Solicitor Wins Appeal on Mahon Refusal

A solicitor has won his Supreme Court challenge to the Mahon planning tribunal’s refusal to hear submissions from him before proceeding to inquire into land deals in Co Dublin in which he was allegedly involved with former Fianna Fáil TD Liam Lawlor and businessman Jim Kennedy.

The three-judge Supreme Court ruled that the tribunal should have heard submissions from John Caldwell before deciding to proceed, in its Carrickmines II and related issues module, with a public hearing into the ownership of lands at Coolamber, Lucan, and other parcels of land in Co Dublin.

The tribunal later terminated its inquiries into other phases of the Carrickmines II module. That module followed on from the Carrickmines I module which inquired into claims councillors were bribed to secure the rezoning of other lands at Carrickmines.

While granting Mr Caldwell’s appeal yesterday against the High Court’s rejection, in a decision by Mr Justice Michael Hanna in 2005 and 2006, of his challenge to the tribunal’s decision, the Supreme Court noted both that Mr Caldwell and the tribunal had accepted the subject matter of the appeal was now moot (pointless).

This was due to the passage of time and because other events had overtaken it, including the fact the tribunal had concluded its oral hearings of the relevant parts of the Carrickmines II module.

However, as the High Court judgments also involved costs orders being made against Mr Caldwell, it was necessary to consider the main issues raised to decide if the High Court decisions were correct and the costs orders were properly made or should be set aside, Ms Justice Fidelma Macken noted.

Mr Caldwell, with an address at St John’s, Isle of Man, had claimed the tribunal’s decision exposed him to a possible three more years of dealings with the tribunal, in addition to the four years he had already engaged with the inquiry, with significant costs and personal time implications.

The tribunal had argued it had acted within its original and amended terms of reference in moving to the Carrickmines II module and was entitled to terminate its investigation into further phases of that module.

During the High Court proceedings, Mr Caldwell’s legal team accepted that Jackson Way Properties Ltd was the legal owner of the Carrickmines lands featured in the first module. The tribunal came to the conclusion, in November 2004, that Mr Caldwell and Jim Kennedy were most likely to be the beneficial owners through shareholdings in offshore companies. Mr Lawlor denied he was a beneficial owner.

Yesterday, the Supreme Court, comprising Ms Justice Macken, presiding, with Mr Justice Joseph Finnegan and Mr Justice Donal O’Donnell, delivered its reserved judgment upholding two of Mr Caldwell’s grounds of appeal.

The court ruled the that tribunal acted in breach of the requirements of natural and constitutional justice in deciding to proceed to inquire into the land deals without giving Mr Caldwell the opportunity to make submissions.

Ms Justice Macken noted that the appeal did not involve an attack on the tribunal’s general rights to organise its own affairs and procedures.

In this case, Mr Caldwell, as a person who might or would be affected by the tribunal’s decision, was entitled to make submissions and to be heard by the tribunal in connection with the exercise of its discretion, she said.

However, the tribunal had made a blanket ruling not to consider entertaining submissions of any nature whatsoever in relation to its decision. This approach was “wrong in law”.

Given those and other findings, Ms Justice Macken said the court would set aside the High Court order. The Supreme Court will hear submissions on costs arising from its judgment later this month.

(The Irish Times, 10th June 2011)

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