Mr Liam Cosgrave's legal team apologised to the Flood tribunal yesterday for failing to previously disclose to it a cheque which was used in the cross-examination this week of the lobbyist Mr Frank Dunlop.
Mr Michael O'Higgins SC, for Mr Cosgrave, said the cheque, which challenged a part of Mr Dunlop's evidence, had not been concealed or held back. Rather, it had come into Mr Cosgrave's possession in mid to late December last, at a time when disclosure was not uppermost in the mind of his legal team.
Mr O'Higgins noted his client had been characterised as "a bit disorganised, unfocused and scattered", and it would not have been unreasonable for him to have expected the cheque to have been disclosed through Mr Dunlop.
Counsel admitted, however, that it ought to have been disclosed by Mr Cosgrave and he apologised for that. He further undertook to submit to the tribunal two files of documents from the offices of a firm of solicitors in which Mr Cosgrave was a partner, and every other "scrap of paper" on file. His comments came after counsel for the tribunal, Mr John Gallagher SC, drew attention to the fact that the cheque had been produced "without warning", despite assurances from Mr Cosgrave that all relevant documentation had been disclosed.
Earlier, Mr Aidan Redmond, for Mr Dunlop, criticised Mr O'Higgins for plucking the cheque "like a dead rabbit from a hat". He said it would appear whilst Mr O'Higgins demanded fair procedures for Mr Cosgrave, the same did not apply to Mr Dunlop.
The cheque in question was for £2,500, made out to Mr Cosgrave in July 1997. It had been produced to contradict Mr Dunlop's evidence that he had made a payment around this time to Mr Cosgrave, comprising £1,000 in cash and a cheque for £1,500 made out to Egan Cosgrave & Muldowney, the firm in which the former Fine Gael senator was a partner.
In a further twist yesterday, however, a copy of a cheque for £1,815 (£1,500 plus 21 per cent VAT) made out to the firm in question was circulated by the tribunal with other relevant bank records.
This prompted Mr O'Higgins to accuse the tribunal of being unfair to his client. Counsel said he had made repeated submissions to have all relevant documentation disclosed before cross-examination began. Instead he found himself in receipt of papers early yesterday which "unfairly compromised" his questioning of Mr Dunlop.
Among other things, the records showed money was withdrawn from one of Mr Dunlop's bank accounts two days before previously thought, thereby putting the withdrawal before and not after a meeting between the lobbyist and Mr Cosgrave.
Mr O'Higgins said failure to make the information available was not justified and had damaged the case he was bringing on behalf of his client.
He said he laid the blame for that damage firmly at the door of the tribunal "because it has not treated us fairly". The tribunal should strive to do justice, Mr O'Higgins added, but his client "is not receiving justice".
Denying the charge, Mr Gallagher said the tribunal was master of its own procedures, and as such had decided to deal with financial records at a later stage in order to progress in an intelligible fashion.
He noted that the information given by the tribunal to Mr O'Higgins, which indicated the later withdrawal date, had been given in good faith and in the belief that it was accurate. The tribunal decided to circulate the bank records, which contradicted the information, after Mr O'Higgins produced the £2,500 cheque in cross-examination on Tuesday, and in the interests of fairness to all parties.
Mr Gallagher added there continued to be an obligation on Mr Cosgrave to rectify the discovery he had made, which was "clearly inadequate".
The chairman, Mr Justice Flood, said the tribunal would consider making an order of discovery against the relevant firm of solicitors when it resumes today.
No evidence was heard yesterday because of the legal dispute.
