Developer challenges Mahon inquiry

Yet another legal challenge, worth quoting in full because of its signifcance to the workings of the Plannin Tribunal:

The High Court has begun hearing a bid by Cork property developer Owen O’Callaghan to prevent the Mahon tribunal from further inquiring into, or making any findings on allegations against him, by developer Tom Gilmartin.

The tribunal proposes to continue those inquiries in its Quarryvale Two module.

The case has been brought by Mr O’Callaghan; John Deane, a solicitor and partner in O’Callaghan Properties; Riga Ltd of Lavitts Quay, Cork, and Barkhill Ltd, which developed the Liffey Valley shopping centre in Dublin.

The tribunal is opposing the application and has denied the allegations of bias. It also denies it gave Mr Gilmartin a special or privileged status. The case before Mr Justice Thomas Smyth is expected to last two weeks.

Mr O’Callaghan claims Mr Gilmartin made “entirely untrue” allegations in private which were never mentioned in evidence by Mr Gilmartin at the tribunal’s public sessions and were concealed by the tribunal.

It had ignored “glaring” inconsistencies between Mr Gilmartin’s private statements to its lawyers and his evidence on oath, Mr O’Callaghan claims.

The tribunal denies that it offered immunity to Mr Gilmartin as an inducement to get him to testify against Mr O’Callaghan. It contends such a claim indicates a misunderstanding of the nature of the tribunal.

The tribunal says it had been openly stated by its counsel that Mr Gilmartin had been granted immunity from the DPP, on foot of a request from the tribunal, which was subject to his giving truthful testimony.

Mr O’Callaghan claims the alleged bias against him is evident from the tribunal’s failure to disclose statements made by Mr Gilmartin to tribunal lawyers which were inconsistent with Mr Gilmartin’s evidence to the tribunal.

The existence of those statements became known during cross-examination of Mr Gilmartin but the tribunal had refused to disclose them. Last July the High Court ordered the tribunal to disclose the documents, later upheld by the Supreme Court.

In the Supreme Court last November, tribunal counsel conceded that the documents had been wrongly withheld from Mr O’Callaghan and that had they been made available to him in March 2004 when Mr Gilmartin was giving his evidence, they could have been used to ground a judicial review application.

Senior counsel Paul Gallagher read a number of documents outlining the background to the action. Among the claims is that the tribunal was protecting Mr Gilmartin by withholding material which was inconsistent with Mr Gilmartin’s testimony.

It is also claimed that the documents disclosed to Mr O’Callaghan as a result of the High Court order made against the tribunal showed “glaring” and “significant” inconsistencies between Mr Gilmartin’s private statements to tribunal lawyers and his evidence to the tribunal.