Burke acts to have Flood rule on costs

Former Fianna Fáil minister Mr Ray Burke has issued legal proceedings to prevent anyone being appointed to deal with his €10.5 million legal bill other than Mr Justice Feargus Flood, who resigned as chairman of the planning tribunal last June.

Mr Burke is claiming that because Mr Justice Flood presided over his evidence to the tribunal, only he is legally capable of determining if costs should be awarded.

If Mr Justice Flood is not the person appointed to deal with the matter, the High Court should award Mr Burke his legal costs by default, according to the plenary summons issued by the former politician.

The move is a direct challenge to plans by the Minister for Justice, Mr McDowell, to have the costs issue dealt with by Mr Justice Flood's successor, Judge Alan Mahon. Legislation to this effect was published last week and is expected to be approved by the Oireachtas before Christmas.

Earlier this week, Mr Burke issued the proceedings against the tribunal, Mr Justice Flood, the Minister for the Environment - whose Department pays the bills of the tribunal - Ireland and the Attorney General.

Notice of the proceedings was given last week, before Mr Burke was arrested and charged with tax offences last Monday. The State is expected to oppose the proceedings, which are likely to come before the High Court in the New Year.

The surprise move will be closely watched by other people who have submitted legal bills to the tribunal amounting to tens of millions of euro.

A decision by the tribunal on costs has been delayed since the resignation of Mr Justice Flood last summer.

A spokesman for the Department of the Environment last night confirmed Mr Burke had issued the proceedings against the Minister. The Chief State Solicitor's office had informed the Department of the impending action on Tuesday, he said. Earlier this year Mr Burke's legal team submitted a bill of €10.5 million, the largest single demand received by the tribunal. But in common with other witnesses before the tribunal, Mr Burke has yet to receive any of this money, let alone a determination that the tribunal is prepared to award him his costs.

Last year's interim report of the tribunal found that Mr Burke and 15 others had hindered and obstructed its work. The tribunal wrote to these parties earlier this year asking them to give reasons why they believed they should be awarded their costs.

However, a planned hearing on this issue was cancelled and Mr Justice Flood resigned from the tribunal shortly after. His successor, Judge Mahon, was not a member of the tribunal at the time of Mr Burke's evidence, a fact which led legal commentators to suggest that any decisions Judge Mahon made on costs could be open to challenge.

Acting on legal advice, the Minister for Justice last week published a Bill amending legislation for tribunals, which would shore up the legal position of a tribunal chairperson who makes decisions on costs involving hearings presided over by a different chairperson. The bill is retrospective.

It is six years now since the tribunal first started investigating Mr Burke, who resigned from the cabinet and the Dáil in October 1997. He last appeared in the witness box over three years ago. His legal team changed several times during this period.

While some of the wealthy developers and business people who have appeared as witnesses have paid their lawyers in full, most witnesses are relying on the State to pay their legal bills. Only the tribunal's own lawyers are paid on an ongoing basis.

Mr Burke was last month served with a €2 million tax bill by the Criminal Assets Bureau. Earlier this week, he appeared in Dublin District Court on charges of failing to make correct returns in the 1993 tax amnesty.