THE MAHON tribunal has failed to stop businessman Oliver Barry’s legal challenge that seeks to quash findings that he obstructed and hindered the planning tribunal’s inquiry into claims he had made a payment to Ray Burke.
Mr Barry’s judicial review proceedings also challenge the tribunal’s refusal to grant him legal costs – which he says are more than €610,000 – arising from his involvement with the Mahon/Flood tribunal.
Mr Justice John Hedigan yesterday refused the tribunal’s application to set aside the leave granted last July to Mr Barry of Hollystown, Dublin 15, to bring his proceedings.
The decision means the case can proceed on a date yet to be fixed.
In proceedings against the tribunal, Ireland and the Attorney General, Mr Barry is seeking a declaration quashing findings in the tribunal’s second interim report (of September 26th, 2002) that he obstructed and hindered it.
He claims these findings were in excess of the tribunal’s powers and in breach of fair procedures and his constitutional rights.
The tribunal found Mr Barry made a corrupt payment of £35,000 to the then Fianna Fáil minister for communications Ray Burke in May 1989.
In 2004, the tribunal refused to give Mr Barry his costs on the basis of the 2002 report of his obstruction and hindrance.
Mr Barry’s challenge comes after the Supreme Court judgment, on proceedings brought by Joseph Murphy Junior and others against the Flood tribunal, that the tribunal was not entitled to make findings of obstruction and hindrance.
In that case, the Supreme Court overturned the tribunal’s refusal to allow two directors of Joseph Murphy Structural Engineers – Joseph Murphy Junior and Frank Reynolds – and JMSE Ltd, the multimillion-euro costs of their dealings with the tribunal over 163 days.
The judgment set out important parameters for assessing entitlement to costs for dealing with tribunals.
The tribunal had sought to have the High Court order, granting leave for judicial review, set aside on several grounds, including that proceedings and reliefs claimed were brought out of time, were an abuse of process and the balance of justice required the leave order to be set aside.
The tribunal argued that the time for bringing the case ran from October 15th, 2004, when it first refused Mr Barry his costs.
Mr Barry argued that legal fees for his involvement with the tribunal had risen to €611,000 by December 2002.
When the costs were refused in 2004, he was earning €46,000 and was not in a financial position to borrow enough to fund a legal challenge to the costs refusal, he argued.
In his decision, the judge said he had to bear in mind this was not the substantive hearing of the case.
The real reason given by Mr Barry for the lengthy delay involved was his lack of funds at the time, the judge said.
Mr Barry had claimed this was caused by his poorly structured appearances at the tribunal. Mr Barry had also said he was advised that any challenge to the 2004 costs decision would be unlikely to succeed.
Mr Barry had said he could not afford to “take the chance”, the judge said. In his view, those matters were arguable as possibly excusing the undoubtedly inordinate delay.
Whether they did excuse the delay was an issue to be decided at the substantive hearing, the judge said.
The question of excusability and location of the balance of justice was very arguable, he ruled.