Publican Charlie Chawke has won a legal challenge to the Planning Tribunal in which he claimed it breached fair procedures in finding he had not co-operated in his evidence about a financial "dig-out" for Bertie Ahern.
The High Court rejected a separate but similar challenge over non-cooperation by former Dun Laoghaire-Rathdown councillor, Tony Fox, who was found to have given false evidence when he denied receiving money from lobbyist Frank Dunlop for voting for the rezoning of land in Dublin.
Mr Chawke and Mr Fox challenged “non-cooperation” findings, which meant there were consequences for any legal costs orders against them by the tribunal. Mr Chawke was mainly concerned the finding had seriously damaged his reputation. The tribunal denied the claims.
Ms Justice Marie Baker yesterday ruled that the “deductive reasoning” process under which the tribunal found Mr Chawke was a non-cooperating witness was not arrived at by affording him fair procedures.
There were no factors that impaired legal validity, such as frailty of memory, that might have allowed the tribunal to conclude he had not knowingly been untruthful, she said. The process of adjudication by the tribunal which resulted in the finding was deductive in that sense and must fail for breach of fairness.
The judge said Mr Chawke’s evidence to the tribunal was, broadly, that he had lent £2,500 to Mr Ahern to assist the former taoiseach in defraying legal bills, and that loan was repaid. It was claimed to be part of a larger sum of £22,500 contributed by 10 individuals, including Mr Chawke, in what the tribunal heard was a “dig-out” for Mr Ahern.
In its final report of March 22, 2012, the tribunal found no payment had in fact been made to Mr Ahern and it “expressly rejected” Mr Chawke’s evidence and that of other witnesses that these payments had been made and repaid, the judge said.
The tribunal said it would award Mr Chawke 30% of his costs, to reflect his co-operation in correspondence with the tribunal before he gave evidence, the judge said.
She said Mr Chawke received a bill from his solicitor for costs of €6,396 which, it was accepted, was a relatively small sum. His main focus in challenging the decision was his “extreme agitation” at a wholly unfair finding which had the imputation of poor character and damaged his reputation, the judge said.
Mr Chawke claimed he was never given an opportunity to address the tribunal’s conclusion, that his evidence in relation to the money was false, before the tribunal issued its final report and findings.
Ms Justice Baker said the tribunal made efforts to appear to give Mr Chawke an opportunity to address it with regard to its findings but had “no real choice” in the conclusion it came to once it had decided it disbelieved him.
In relation to the Fox case, the judge said unlike Mr Chawke, Mr Fox was not a mere witness but was identified as someone who received monies to vote for rezoning.
Mr Fox denied receiving payments for rezoning votes and, as a witness whose evidence was central to the tribunal, he was afforded every opportunity to put his version of events and to comment on those of others, she said.
The tribunal found his denials were falsely given, his evidence was motivated by a desire to frustrate its inquiries, and that he had not co-operated, she said.
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