Tribunal urged not to pay costs to obstructors

Mahon Tribunal: Lawyers for the Minister for Finance, Mr McCreevy, and the Attorney General have called on the planning tribunal to withhold legal costs from parties who have hindered or obstructed its work.

The tribunal yesterday began a two-day hearing on the costs issue, which could see witnesses such as former minister Mr Ray Burke and corrupt official George Redmond having to pay their own multi-million-euro legal bills.

Mr Maurice Collins SC, for the Minister, said it was "ridiculous" for people who were found to have obstructed or hindered the tribunal to claim they had a "legitimate expectation" for costs. His submission was supported by lawyers for the Attorney General.

Opening the hearing, the tribunal chairman, Judge Alan Mahon, promised to deliver a ruling on the issue "as soon as possible," after hearing submissions from the various legal parties on the principles he should apply in reaching a decision.

Judge Mahon said he would not entertain any submissions questioning his jurisdiction to deal with the issue of costs.

He said he was aware proceedings had begun in the High Court that sought to challenge his power to determine the matter. However, he was satisfied he had the power to deal with the costs issue under current legislation.

The chairman also warned he would not entertain any questioning of the merits or the validity of the second and third interim reports prepared by the previous chairman, Mr Justice Feargus Flood.

He was aware that proceedings challenging these reports were being taken in the High Court, but these were a matter for the courts and not the costs hearings of the tribunal.

He said he would not deal with individual applications for costs at this time. He hoped to deliver his ruling as soon as possible and to deal with individual costs applications afterwards.

In his submission, Mr Collins said anyone who was found to have hindered or obstructed the tribunal to a substantial degree should not be awarded costs.

The tribunal should also be able to have regard to its findings when deciding on the issue of costs, he said.

Reviewing the practice of previous tribunals, he said the planning tribunal should not follow the practice adopted by the beef tribunal on costs and, further, was not bound to do so.

It was the Minister's submission that people appearing before a tribunal did not have an automatic entitlement to costs. It was up to parties to persuade the tribunal that it would be equitable to make an order for costs in their favour.

The issue was not an "all or nothing" judgment; the tribunal could make an order for part of someone's costs. It was important that the tribunal should bear in mind the requirements of proportionality when reaching its decision. The nature and extent of the non-co-operation should be considered in each case.

Mr Collins stressed that the tribunal, in its decision, would be exercising a "due and contemplated consequence" of its discretion, not imposing any penalty or sanction on a party.

He said the expenses incurred by a witness in appearing before the tribunal should be reimbursed. People of limited resources should be able to recover the administrative costs of complying with a tribunal order, but this should not apply to "well-resourced entities" except in exceptional circumstances. State-funded bodies should not get their costs.

Mr James O'Reilly SC, for the Attorney General, acting in the public interest, said his client wished to adopt the submissions made by the Minister. This was the appropriate criterion and template to apply in the determination of the issue, he said.