Counsel calls the tribunal 'manifestly unfair'

Correspondence:Lawyers for the Taoiseach claimed yesterday that the tribunal had failed to furnish it with its correspondence with stockbrokers, in a manner that was "manifestly procedurally unfair".

Conor Maguire SC, for Bertie Ahern, said that he had first learned only yesterday that the tribunal had written to stockbroker companies in November 2006 asking whether they been canvassed to make contributions to Mr Ahern. This arose from the testimony of former NCB managing director Pádraic O'Connor, who told the tribunal that his company's payment of £5,000 to Mr Ahern was influenced by his belief that other companies had been approached for similar payments.

During questioning of Mr Ahern yesterday, tribunal counsel Des O'Neill disclosed that all stockbrokers contacted replied that no such approach had been made.

That prompted an immediate intervention from Mr Maguire, who said he was unaware of this correspondence which had not been furnished to Mr Ahern in advance of yesterday's hearing.

In reply, Mr O'Neill said that the reason the correspondence had not been provided was because all the companies had replied in the negative and the documentation was of "zero evidential value". However, in a submission to the tribunal after lunch, Mr Maguire said it was not for the tribunal to decide what should and should not be disclosed.

"Where does Mr O'Neill's assessment that these document are of zero evidential value come from?" he asked.

He said the failure to furnish was reminiscent of the tribunal's failure to disclose inconsistencies in Tom Gilmartin's evidence at an earlier stage.

Mr Maguire read from the transcript of Mr Ahern's evidence last December, in which he was asked about Mr O'Connor's belief that other stockbrokers had been approached without being told that they had all replied in the negative.

"He [ Mr O'Neill] never made any reference to correspondence between the stockbrokers and the tribunal which contradicted Mr O'Connor's evidence. How could he think it fair to ask those questions without disclosing that information?"

Referring to the need to guarantee the fairness of procedures, he asked the tribunal for a ruling to investigate whether any other documents had not been disclosed.

Mr Maguire also returned to a general observation. "I do not think the words Quarryvale or Tom Gilmartin have been mentioned once today."

Tribunal chairman Judge Alan Mahon declined to make a ruling on the basis that it would effectively use up the entire afternoon.