Fox v Judge Mahon & ors

Factual and Procedural Background

This judicial review involves an application by the Plaintiff challenging a decision made by the Respondents, members of a Tribunal of Inquiry into Certain Planning Matters and Payments ("the Tribunal"), dated 31st October 2013. The Tribunal had found that the Plaintiff failed to co-operate with the Tribunal and/or knowingly gave false or misleading evidence. The Tribunal was established by the Minister for the Environment and Local Government in 1997 to investigate alleged payments to politicians and officials related to planning decisions, particularly payments influencing rezoning of lands in County Dublin.

The Plaintiff, an elected Councillor, was identified by another witness as having received improper or corrupt payments in connection with votes on rezoning matters. The Plaintiff gave sworn evidence over multiple hearing modules, denying these allegations. The Tribunal ultimately found that corrupt payments were made to the Plaintiff and that the Plaintiff gave false evidence. After publishing its substantive report in March 2012, the Tribunal invited submissions on costs, which led to the challenged finding of non-cooperation communicated to the Plaintiff in October 2013.

Legal Issues Presented

1. Whether the Tribunal erred in making a finding of non-cooperation and knowingly giving false evidence against the Plaintiff based on its substantive findings of corrupt payments.
2. Whether the Tribunal properly separated its substantive factual findings from its costs-related findings concerning the Plaintiff's conduct before the Tribunal.
3. The scope and application of the Tribunal’s statutory power to award costs under the Tribunals of Inquiry (Evidence) (Amendment) Acts 1979 and 1997, particularly regarding findings of non-cooperation and false or misleading evidence.

Arguments of the Parties

Applicant's Arguments

• The Plaintiff challenged the Tribunal’s finding of non-cooperation on the basis that it was inherently linked to the substantive findings of corrupt payments, which the Plaintiff argued was a breach of established legal principles from Goodman v. Hamilton and Murphy v. Flood.
• The Plaintiff sought a declaration that the Tribunal’s findings were ultra vires, though this ground was not argued before the court.

Respondents' Arguments

• The Respondents contended that the Tribunal was entitled to consider that the Plaintiff gave false evidence, which was contradicted and disbelieved in light of other witnesses’ evidence preferred by the Tribunal.
• They argued the Tribunal properly exercised its discretion under the statutory framework to consider the Plaintiff’s conduct, including knowingly giving false or misleading evidence, in making its costs decision.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court carefully examined the statutory framework governing Tribunals of Inquiry, particularly the amended s. 6 of the Tribunals of Inquiry (Evidence) (Amendment) Acts, which empowers the Tribunal to award costs based on findings of conduct including failure to co-operate or knowingly giving false or misleading evidence. The Court emphasized the two-stage process: substantive findings of fact and separate adjudication on conduct related to costs.

The Tribunal’s final Report made substantive findings that the Plaintiff received corrupt payments, but it did not address co-operation in that report. Instead, the Tribunal conducted a separate process to consider co-operation and costs, inviting submissions and deferring decision until after related criminal matters.

The Court found that the Tribunal’s decision on non-cooperation was based on a detailed analysis of the Plaintiff's conduct and credibility, particularly the Plaintiff’s emphatic and repeated denials of receiving corrupt payments, which the Tribunal found to be knowingly false. This finding was not merely a restatement of the substantive corruption finding but was a distinct judgment on the Plaintiff’s intention and truthfulness in evidence.

The Court rejected the Plaintiff’s argument that the Tribunal erred by relying on substantive findings, noting that the Tribunal properly distinguished between the two types of findings and made clear that its non-cooperation finding was based on conduct and intention rather than the substantive fact of corruption. The Court also recognized that the Tribunal’s weighing of evidence and credibility is central to determining whether false evidence was knowingly given.

Accordingly, the Court held that the Tribunal did not err in its findings or in exercising its discretion under the statutory provisions.

Holding and Implications

The Court DISMISSED the Plaintiff’s application for judicial review and upheld the Tribunal’s finding that the Plaintiff failed to co-operate and knowingly gave false or misleading evidence.

The direct effect of this decision is that the Plaintiff is not entitled to the relief sought, including any challenge to the costs or findings of non-cooperation. The Court did not set new precedent but affirmed the proper application of established legal principles regarding the separation of substantive findings and costs-related conduct findings in Tribunal proceedings.