Judge 'surprised' at suggestion over tribunal findings


THE CHAIRMAN of the Moriarty tribunal has expressed surprise at the suggestion that his legal team might be helping him arrive at the conclusions in his forthcoming report.

Mr Justice Michael Moriarty commented on the matter in a letter sent in January to the secretary general to the Government, Dermot McCarthy.

Correspondence released under the Freedom of Information Act to agents of businessman Denis O’Brien shows Taoiseach Brian Cowen wrote to the judge in July 2008 to say the Government believed tribunals should not continue to pay for legal staff associated with public hearings beyond the completion of public hearings.

The correspondence, which has been seen by The Irish Times, shows that Mr Cowen told the judge that the Government was facing significant expenditure constraints as a result of the economic and fiscal situation.

The judge, in his reply some days later, explained that the preponderance of the work conducted by his legal team has been its advice to him in the course of the tribunal’s private work. He said he required the full complement of his legal team for the timely conclusion of a process whereby interested parties were making written submissions to the tribunal and being afforded the opportunity to respond, in private, to the tribunal’s provisional findings.

Following receipt of the judge’s response, Mr Cowen communicated with Minister for Finance Brian Lenihan about the matter. There were additional sittings of the tribunal over a number of days during 2009 and a further 12 sitting days during 2010. The tribunal last sat on November 5th, 2010, and is not expected to sit again.

On November 8th, 2010, Mr McCarthy wrote to the judge, referring to Mr Cowen’s July 2008 letter and seeking the judge’s view on the Government’s desire that tribunal lawyers not be engaged after public hearings ceased.

Mr McCarthy wrote again to the judge on December 22nd, 2010, in which he referred to comments that had been made to the Taoiseach’s department by the Department of Finance. These comments are redacted from the released letter.

It was in response to this letter that the judge expressed surprise. He referred to “concerns expressed in some quarters in regard to the demarcation of functions within the tribunal”.

He said he wished to state clearly that the substantive obligation of evaluating evidence and expressing conclusions was “exclusively and necessarily mine alone”.

“Whilst I entirely appreciate that, once raised, it was quite correct that you drew the matter to my attention, I acknowledge a little surprise that it should be inferred, however indirectly or from whatever quarters, that I would act otherwise than as stated.”

He said he was proposing that the commitment of the most senior member of the tribunal’s legal team “should forthwith be substantially reduced”. Fee notes for the December 2010 to January 2011 show that the senior tribunal barrister Jerry Healy SC was paid €68,600, including VAT, while his colleague, Jacqueline O’Brien SC, was paid €85,159.

Former tribunal counsel John Coughlan SC ceased working for the tribunal in early 2010 and was replaced by a junior counsel who is paid €900 per day less. Mr Healy is paid €1,955 per day and Ms O’Brien €1,564. The tribunal also has junior counsel staff. Mr Healy was paid a total of €9.49 million in fees in the period from October 1997 to the end of 2010.