Mahon tribunal costs could have been cut - auditor

 

THE MAHON tribunal could have saved some of its €194 million estimated cost if it had run three sittings at the same time, according to a report from the Comptroller and Auditor General.

In his Special Report on Tribunals of Inquiry, John Buckley said the total cost to the State of the Mahon, Moriarty and Morris tribunals could be up to €434 million.

He said despite the existence of a provision to run sittings concurrently at the three-member Mahon tribunal, the system was not used. “There appears to be scope to use concurrent sittings where a tribunal has a number of members and where discrete issues can be identified,” he said. The move would lead to more efficiency.

In calculating tribunal costs to the exchequer, the report did not take into account money raised by the Criminal Assets Bureau and the Revenue Commissioners on foot of the tribunals. This was estimated at almost €60 million so far, it said.

The report examined the timescale, cost and efficiency of the three tribunals.

It found both the Mahon and Moriarty tribunals would be 12 years old by completion, estimated at April 2010 and June 2009 respectively. Work at the Morris tribunal was largely complete after seven years, it said.

Mr Buckley said their “extended timescale” was affected by the nature of the investigations, adversarial procedures and legal challenges.

Some 39 cases were taken against the tribunals: 29 against Mahon, four against Moriarty and six against Morris. These have cost approximately €4 million so far. The tribunals could recoup costs in 16 cases valued at €2.26 million. To date, less than half a million has been recovered. The tribunals’ wide terms of reference, extended cross- examination and some procedural shortcomings added to its duration, as did the obstruction or non-co-operation of witnesses.

The report suggested that new lines of inquiry in a tribunal should be limited to instances where the tribunal is satisfied the cost and duration could be justified by relevance.

Tribunal evidence-gathering could be improved by using techniques like those used in auditing or other investigative work, the report noted. Witnesses could give evidence by affidavit, rather than by public appearance, it suggested, and oral examinations would be reserved for contentious facts.

“It would be worth considering whether efficiency could be improved by only proceeding to oral hearing in instances where a party asserts that their reputation or interests may be adversely affected,” the report stated.

The report found that tribunal legal teams would cost €87 million by the completion of the inquiries. Senior counsel earned €2,250 a day and junior counsel earned €1,500 in the Morris and Mahon tribunals, but in Moriarty the figures were €2,500 and €1,100 respectively. Private sector solicitors earned €1,000 a day.

Tribunal costs could be reduced by using less expensive paralegal staff for research and by introducing a scheme of pre- determined fees which “would take account of the certainty of tribunal work”.

Government plans, mooted in 2004, to introduce reduced payments to inquiry teams were not implemented, the report found. “Considerable savings” could be achieved if those rates were implemented in future, it noted.

Third party costs represent the major portion of costs and were estimated at up to €182 million, but this was uncertain, it added.

“There is a risk that, due to the extended timescale, their ultimate cost could rise for future settlements and awards by the Taxing Master,” the report stated. If third-party costs match those in the beef tribunal, a further €68 million could be added.

In the future, costs could be curtailed if applications for legal fees were made before participation in a tribunal. The award of costs could also be limited to a maximum amount set by a minister.

“The State faces a considerable challenge to achieve predictability and financial control in the case of tribunals of inquiry . . . without compromising their independent investigations or the constitutional rights of witnesses,” the report noted.