The Smithwick Tribunal has said it may not be “equitable” to pay the legal fees of key witness, Owen Corrigan, a former detective sergeant who served in Dundalk.
The tribunal which ran for almost eight years investigated allegations that members of Dundalk Gardai colluded with the IRA in the March 1989 murders of RUC chief supt Harry Breen and Bob Buchanan.
Last month the tribunal report found Mr Corrigan had passed information to the IRA, but said it had found no evidence he had done so to assist in the murder of the RUC officers.
The tribunal found that on the balance of probabilities somebody inside Dundalk Garda Station had tipped off the IRA about the movements of the men.
At the start of the hearing on costs today tribunal senior counsel Justin Dillon said the proposal to deny Mr Corrigan his costs was related to his “point blank and unambiguous refusal” to provide full details of his banks accounts.
Mr Dillon told the hearing the tribunal had written to Mr Corrigan to the effect that as a consequence of his failure, it had proposed “he shall not have the costs borne by the taxpayer”.
Mr Dillon recalled that on day 131 of the tribunal hearings Mr Corrigan was asked if he was refusing to assist the tribunal any further with its inquiries into his personal bank accounts.
Mr Corrigan had replied: ”Yes. I am not going to hand over my bank accounts to you and that’s it”.
Mr Dillon told Judge Peter Smithwick the ultimate decision was one for the judge himself but he was entitled to consider the tribunal’s finding that Mr Corrigan had passed information to the IRA, and that he had refused cooperation on full financial disclosure.
Mr Dillon told Judge Smithwick the tribunal had discretion to decide to what extent Mr Corrigan had not complied, and to decide what proportion of legal costs, if any, should be withheld.
However Jim O’Callaghan SC for Mr Corrigan told Judge Smithwick there were a number of reasons why he could not in law deny Mr Corrigan his legal costs. He said if Mr Corrigan was denied his costs his legal team would have to challenge that decision.
Mr O’Callaghan said the tribunal was not allowed to ignore the Acts setting up the tribunal and Supreme Court precedents which provided for payment of costs.
He said it would be “irrational and unfair” to Mr Corrigan not to allow him his costs over eight years, and “grossly disproportionate” to the level of cooperation provided. He also said such an order would constitute bias against Mr Corrigan and no other party who was granted legal representation, was denied costs.
Mr Callaghan told Judge Smithwick “you can not relay on your finding that Mr Corrigan passed information to the IRA”. Nor could the judge penalise him in this way for failing to voluntarily disclose his financial details, he said.
Mr O’Callaghan said denial of costs was to impose a penalty on his client and the tribunal had not power to impose penalties. He siad if the tribunal was minded to deny costs there was another option, that it could seek a direction from the High Court on what it might do, in relation to costs.
Judge Smithwick said he had “not made any decision”. He said “my mind is not made up”.
