THIS weekend Mr Haughey is studying what may be the most sensational document to emerge from the tribunal. Mr Justice McCracken will decide on Monday whether its contents will be revealed.
It contains a statement by Mr Noel Smyth, solicitor for Mr Ben Dunne, giving details of five meetings he has had with Mr Haughey since January.
The meetings had been requested by Mr Haughey. During those meetings Mr Haughey gave Mr Smyth information relating to the Buchanan inquiry into payments to politicians revealed in Price Waterhouse documentation, and information relating to the present tribunal of inquiry.
It is assumed at the tribunal that this information is of a dramatic nature. Mr Just ice McCracken will decide on Monday whether to direct Mr Smyth to reveal what Mr Haughey said to him during those meetings.
Mr Haughey has until Monday to decide whether to be represented before Mr Justice McCracken makes his decision.
The issue to be decided by Mr Justice McCracken is whether the conversations between Mr Haughey and Mr Smyth are in any way privileged, and therefore subject to confidentiality. Normally, the only discussions which are privileged are those between a lawyer and his or her client, or part of attempts to settle court proceedings.
According to evidence given to the tribunal yesterday by Mr Smyth, neither of these exceptions appears to apply in this case.
First, Mr Smyth was not Mr Haughey's solicitor, as he made clear to Mr Justice McCracken yesterday. Second, there were no court proceedings in train in relation to the matter, so these meetings clearly were not negotiations to settle any such proceedings.
Mr Smyth said yesterday that he would not reveal details of his conversations with Mr Haughey unless directed by the tribunal.
While not arguing that there was any client/lawyer privilege attached to the conversations, he said: "I unfortunately believe the information Mr Haughey gave me in terms of the Buchanan Inquiry and in relation to this particular inquiry only came about because he believed he was imparting information to me as a solicitor."
He felt that Mr Haughey said what he had said in confidence, although he did not argue that there was a legal basis for him to keep the confidence. He made it clear that he would give the details of his meetings if directed to do so.
Mr Justice McCracken has put off until Monday a decision on whether to direct Mr Smyth to reveal what Mr Haughey told him. He said that Mr Haughey had been supplied with statements made by witnesses in advance of their giving evidence to the tribunal, and on that basis decided not to be represented.
Mr Smyth's initial statement, however, had not contained details of these conversations with Mr Haughey. If they had Mr Haughey might have decided to attend or be represented after all, the judge said.
He should therefore have an opportunity to read Mr Smyth's new statement, and to decide whether to be represented in the light of that.
Counsel for the public interest, Mr Edward Comyn SC, made his first intervention of the week on this issue. He submitted that the rule of privilege did not apply in this case, but said he believed Mr Haughey had a right to know what Mr Smyth planned to say and, on that basis, decide whether or not to be represented.
Mr Comyn did not question any witnesses or intervene until yesterday, but senior legal practitioners say that this is proper practice. "The primary public interest is represented by the tribunal and its legal team," says one - senior legal source. "The public interest is to find the truth and that's the tribunal's job."
The public interest's representative should intervene only if he or she perceives a possible conflict between the actions of the tribunal and the public interest, according to the source.
Thus, yesterday Mr Comyn felt it important to express a view to Mr Justice McCracken on whether Mr Smyth's account of his meetings with Mr Haughey should be heard.
Nor should he have intervened, for example, to question Mr Dunne and the Dunnes Stores former chief accountant, Mr Michael Irwin, about the taxation arrangements surrounding the alleged payments, the source says.
The terms of reference of the tribunal say that it is to inquire into payments to politicians and political parties by Mr Dunne, Dunnes Holding Company or associated companies. Tangential matters which may be of public interest are nevertheless outside the terms of reference.
Silent barristers are often a great thing," says the source. "The more they speak, the longer the thing goes on and the more it costs the public."
The other legal point of interest this week has been whether Mr Haughey can be compelled to attend and give evidence.
The tribunal has the power to summon any person it believes can help with its inquiry. The Tribunals of Inquiry (Evidence) Act states that if a person refuses a summons without a good reason, he or she is guilty of an offence and can be fined up to £10,000 and imprisoned for up to two years.
However, a witness cannot be compelled to give any answers that might be self incriminating.