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Councillor faces significant legal bill following failed attempt to stop ethics inquiry

Councillor McElvaney was one of the subjects of an RTÉ Investigates programme in 2015.

Councillor Hugh McElvaney in a still from RTÉ Investigates.
Councillor Hugh McElvaney in a still from RTÉ Investigates.
Image: RTÉ

A COUNTY COUNCILLOR faces a significant legal bill arising out of his failed High Court bid to halt an ethics inquiry into comments he made while being secretly filmed by RTÉ’s Primetime Programme.

At the High Court on Tuesday, Mr Justice Garrett Sims ruled that Monaghan County Councillor Hugh McElvaney should pay the legal costs of proceedings the politician brought against the Standards in Public Office Commission (SIPO).

The councillor is the subject of a SIPO investigation into whether he breached ethics when he was one of the subjects of an RTÉ Investigates programme Standard in Public Office, aired in 2015.

In it, an undercover researcher, using the name Nina Carlson posed as a representative of a foreign investment firm looking for their support for a fictitious wind farm development.

McElvaney brought High Court judicial review proceedings claiming that SIPO, which held a preliminary inquiry into the matter,  should be stopped from going any further.

In his judgement earlier this month Mr Justice Garrett Simons, who heard the application over the course of two days, said he was satisfied “to dismiss the application in its entirety”. 

That decision clears the way for the SIPO inquiry to proceed after being on hold pending the outcome of the High Court case.

Today, when the case returned before the court counsel for McElvaney, Breffni Gordon Bl asked the court to use its discretion and make no order in regards as to who should pay the costs.

This was opposed by counsel for SIPO James Doherty SC who argued that the normal rule where costs follow the event, meaning that McElvaney should pay his client’s costs, should be applied.

In his ruling, Mr Justice Simons agreed with Mr Doherty and said that given that the proceedings had been dismissed in their entirety the normal rule in regards to who should pay the costs of the action should apply.

This was not a case where McElvaney had won a number of points raised in his action, the judge added. 

The judge ordered that McElvaney pay the legal costs of the action, estimated to be a five-figure sum.

SIPO’s investigation arose following a complaint made to the commission that the councillor had contravened provisions of the 2001 Local Government and the Code of Conduct for Councillors. 

In his action, the former Fine Gael, now independent councillor McElvaney argued that he was entrapped by the RTÉ reporter, who would not be available for cross-examination at the hearing of the investigation and that the inquiry was inadequate.

SIPO had opposed the application.

In a lengthy and detailed ruling, Judge said that the absence of the undercover reporter did not prejudice the statutory investigation being conducted by SIPO.

The Judge said what the reporter said to McElvaney during the interview was not at issue as it was accepted what she had said was fictitious.

What was at issue, the judge added, was the response of the councillor to what was said.
The Judge added that the councillor’s objection to RTE engaging in an impermissible exercise of entrapment was “premature.”

The court was not given any indication if councillor McElvaney intends to appeal the judgement to the Court of Appeal.

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About the author:

Aodhan O'Faolain & Ray Managh

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