Documents reveal counsel's advice on McCole costs

Three months before the BTSB threatened Mrs Bridget McCole with costs if she continued her legal action the Department of Health was advised that a court was unlikely to order her to pay costs.

"Whatever the outcome . . . it is difficult to see a court penalising this particular plaintiff in costs," Mr Eoghan Fitzsimons SC said, when asked for a legal opinion. "For her to leave court with orders for costs against her, it seems to me that she would have to be seen to have acted very unreasonably in not accepting the lodgement," he advised. The BTSB had made a lodgement to court less than a month earlier.

Mr Fitzsimons was appointed by the Attorney General to give advice at the request of the Minister for Health, Mr Noonan. His advice is published in documents released by the Government late on Friday as a single-page extract from a letter to the Chief State Solicitor's Office hand-dated June 10th, 1996.

Mr Fitzsimons served briefly as AG in 1994 after the resignation of Mr Harry Whelehan.

On September 20th, 1996, the BTSB wrote to solicitors acting for Mrs McCole admitting liability for compensatory damages. The letter ended with a warning that if Mrs McCole continued with her claim against the Minister for Health, the NDAB and the BTSB, she could be liable for costs.

However, Mr Fitzsimons's advice to the Department of Health was that, even if the State and the NDAB won the case, "the court may well take the view that, having regard to the nature of the case and the plaintiff's particular position, they should bear their own costs in any event".

This advice related only to the State defendants: the Department of Health and the NDAB. There are no documents in the report to suggest that the BTSB took advice on its own position on costs.

The documents also reveal that the chairman of the BTSB, Mr Joe Holloway, appears to have been fully aware of Mrs McCole's deteriorating health three days before the BTSB sent the letter to her solicitors threatening her with costs.

A hand written note from a Department of Health official to the Department secretary, Mr Jerry O'Dwyer, relays a telephone message from the BTSB chairman about Mrs McCole. "Joe Holloway rang to say that there has been a sudden deterioration of Mrs McCole (her liver is decompensating)," it says. "They have been told that a liver transplant has been indicated; however, she is not a suitable candidate for a transplant." This note, dated September 17th 1997, also states that the BTSB would send the letter two days later "unless the Minister disagrees".

A separate letter from the Attorney General, Mr Dermot Gleeson, to Mr Noonan on October 13th, 1996, was not published in full in the report. In the letter, Mr Gleeson objects strongly to including any reference, in the terms of reference for the tribunal, to the legal strategy used in the McCole case.

He begins by writing that there were "two matters which in my view would give rise to the most serious difficulties, were they to be included". The letter goes on to outline the difficulties of parliament inquiring into how any party conducts its litigation in the court.

Mr Gleeson is adamant in his opposition, saying: "I should say that this is a point of fundamental principle as far as I am personally concerned. I would not assist in a process by which parliament could now interrogate any party (even if it is only "a semi-state body") as to the conduct of its litigation".

However, the letter does not outline the second "matter". A Government spokesman said yesterday this had been "excised" by Ms Fidelma Macken SC, who prepared the report.

It is understood from one source that the missing portion of the letter referred to the need to maintain public confidence in the blood supply. It is believed Mr Gleeson was concerned that if members of the BTSB board were blamed for following a certain legal strategy this could affect public confidence.