Tribunal costs payout bonanza to add insult to injury

Everyone from Bertie Ahern to George Redmond stands to be reimbursed because of constitutional catch, writes Vincent Browne.

The scale of the national disaster that has befallen us since September 2008 has dwarfed most other issues formerly of central national importance.

Nevertheless, the findings of the Mahon tribunal on the bizarre financial arrangements of the taoiseach who was in office while the timebomb of our national disaster was being primed – and who is regarded as one of the chief primers of that timebomb – will be of some passing interest.

Reminders of the extraordinary explanations Bertie Ahern offered for tens of thousands of pounds in cash streaming in and out of his office in Drumcondra and into and out of his bank accounts, when he finally acquired bank accounts, will be fascinating all over again.

Ditto reminders of the sterling that he made on the gee-gees. The loads of sterling that swirled around Drumcondra will add to national merriment all over again, just at a time when we need a bit of merriment.

But we might end up appalled at the realisation that the person guiding the nation's fortunes at a time when the nation was headed firmly towards catastrophe had been up to such shenanigans while in his previous incarnation as minister for finance.

Whether we like hearing it or not there is something we need to know about soon: the true cost of the tribunals.

For it might well be that Bertie will get all his legal costs from the Mahon tribunal. Perhaps not immediately but eventually, costs probably running to well over half a million.

Ditto Frank Dunlop, George Redmond and everyone else who was before that tribunal – although some of those claims might be barred because of being too late. Everyone who was before the Moriarty tribunal will also be in line for a costs payout: Denis O'Brien, Michael Lowry, the lot. All their costs – however many millions.

The estate of Charles Haughey might also be entitled to be paid in respect of the costs incurred by him in his tribunal dealings, although the time factor could again be a problem here.

The reason for this joyful news arises from judgments of the Supreme Court made in the builders JMSE case against the Mahon/Flood tribunal in April of last year: both the substantive aspects of the judgments and implications in some of them.

The Supreme Court found that the basis on which JMSE had been refused costs was invalid because the refusal was founded on findings of the Flood tribunal which themselves were invalid.

So all the costs incurred by JMSE have had to be paid by the State and the costs everyone else incurred as well.

The issue was this: Feargus Flood, the first chairman of the planning tribunal (Alan Mahon is now the chairman), found that persons connected to JMSE, notably Joseph Murphy jnr, had hindered and obstructed the tribunal in failing to give a true and accurate account of payments made to Ray Burke and George Redmond. And the reason that this finding was invalid was because hindering and obstructing a tribunal is a criminal offence and tribunals are not permitted to make findings of criminality, that being the function and sole preserve of the courts.

Several Supreme Court judgments have declared that tribunals are legally sterile in that there can be no legal consequence arising from their findings or opinions. Neither can tribunals impose any penalties or sanctions of any kind, which brings us to the appalling vista.

Everybody whose reputation is at stake in the tribunal investigations and inquiries has a constitutional entitlement to legal representation before the tribunal. This was clearly established in a seminal case back in 1971. Legal representation is very expensive, so people involuntarily required to attend and give evidence at tribunals and have their reputations put at risk are required to incur very considerable expense in engaging lawyers to protect their interests and reputations.

Tribunals are empowered to award costs to such persons and to deny costs to persons who have failed to co-operate.

Tribunals are even empowered to require persons who have refused to co-operate to pay not just their own costs but some of the costs of the tribunals themselves. And here is where the catch is.

Everyone is agreed that tribunals are legally sterile, with no power to impose penalties on anybody. Yes many people think this is absurd but that is the way it is. The issue therefore is how can a tribunal impose a huge penalty on a person who comes before it by refusing to pay the legal costs, costs they were obliged to incur, in accordance with their constitutional rights, if tribunals are legally sterile and not empowered to impose any penalties? In other words, the statute permitting tribunals to refuse costs seems unconstitutional.

In the conclusion of his judgment in the JMSE case, one of the Supreme Court judges, Adrian Hardiman, said that this was "manifestly doubtful" in constitutional terms. Another judge of that court in that same case, Nial Fennelly, implied more or less the same. Anyway, isn't it obvious?

So you thought the national finances were in big trouble. Well, they are but bigger than you thought!