THE HIGH Court has reserved judgment on the challenge by Taoiseach Bertie Ahern to the handling by the Mahon tribunal of its inquiries into controversial lodgements to his accounts when he was minister for finance in 1993 and 1994.
The court is also to examine 150 documents, over which Mr Ahern is claiming legal privilege, relating to his retention of banking expert Paddy Stronge to refute the tribunal's claims about the nature of the two lodgements - one to Mr Ahern's account and one to an account of his former partner Celia Larkin.
The first issue the court has to decide relates to how the tribunal may, given the protection in Article 15.13 of the Constitution attaching to statements made in the Oireachtas, deal (both in its examination of Mr Ahern and in its report) with statements made in the Dáil in September and October 2006 by the Taoiseach about his financial affairs.
The court also has to decide whether Mr Ahern is entitled to claim legal privilege over the Stronge banking documents.
A third issue in the case - in which Mr Ahern sought orders requiring the tribunal to hand over documents on which it based its claims concerning the lodgements - has been resolved following the tribunal's agreement this week to hand over those documents.
The documents amount to 110 pages, consist of bank data and computer records, and the tribunal has stated it considered them as of a limited nature and not relevant to cross-examination.
In submissions yesterday, Denis McDonald SC, for the tribunal, noted that Mr Ahern was contending that litigation privilege applied to 139 of the 150 Stronge documents, while legal advice privilege applied to the remaining 11.
The tribunal's position was that litigation privilege did not apply to tribunals because they were inquisitorial bodies not engaged in the "administration of justice". He argued the administration of justice involved the determination of rights.
While the tribunal accepted legal advice privilege did apply to inquiries by tribunals, it was the tribunal's case that legal advice privilege did not apply to the 11 documents in this case.
Rejecting those arguments, Brian Murray SC, for Mr Ahern, said that in determining whether litigation privilege applied to the documents, the test the court should apply was whether the tribunal was a quasi-judicial body whose decisions affected legal rights. A person had a right to defend themselves before such bodies, and litigation privilege was a consequence of that right.
Mr Murray said the tribunal, in asserting legal advice privilege did not apply to the 11 documents, was saying there was no legal advice privilege attaching to meetings attended by Mr Ahern's solicitor, counsel, agent and Mr Stronge because Mr Ahern was not present. If that was the law, someone should run to the King's Inns and tell everyone that, he said.
Earlier, Mr Murray said the tribunal, in clarifying how it now proposed to treat Mr Ahern's Dáil statements, had said it would not seek to call into question the veracity, propriety or motivation behind the Dáil statements in either its examination of Mr Ahern or in its report. He agreed the media could comment on the veracity of Dáil statements.
The tribunal had also stated it could, in examination of Mr Ahern about statements made outside the Dáil, "draw his attention" to the Dáil statements.
In those circumstances, Mr Murray said all the court could do in this regard was identify the legal ground rules about "drawing attention", but could not say how it would be applied in the future.
The President of the High Court, Mr Justice Richard Johnson, remarked it was like the reference to "tackle" in the rules of Gaelic games. The rules said you may tackle, but did not say what tackling was. Mr Murray said his side was in court because they had asked the tribunal to state it "would not tackle us" [ about the Dáil statements] but the tribunal had declined to do so.
At the conclusion of the two-day hearing yesterday, Mr Justice Richard Johnson, sitting with Mr Justice Peter Kelly and Mr Justice Iarfhlaith O'Neill, said the court would reserve its decision.
