If they are lucky, the Moriarty and Flood tribunals may only have been set back two months as a result of yesterday's judgment. If they are unlucky, the delay could be six months or more. And in the worst-case scenario, their investigations could be seriously hindered through a denial of their wish to examine certain bank accounts.
Yesterday's Supreme Court judgment means that, in theory, a small fleet of couriers should leave Dublin Castle today bringing boxes of documents back to the various financial institutions and individuals from whom they were obtained. The orders made by Mr Justice Moriarty and Mr Justice Flood seeking these bank records were not made properly, and both judges must start over again.
This time Mr Justice Moriarty must notify Mr Charles Haughey and certain members of his family that he intends to make orders seeking to get details of their bank accounts. Mr Justice Flood must notify Mr Michael Bailey, his wife Teresa and his company Bovale Developments that he intends to make orders allowing him to look at their accounts. If they wish they must then be allowed make representations as to why their accounts should not be examined.
If this happens quickly, the orders are made and the matter is not appealed to a higher court, the fleet of couriers may be leaving Dublin Castle within two months to collect the documents again. However, in the event of an appeal which could end up in the Supreme Court the documents might not return until the new year, if at all.
In the meantime, the tribunals cannot use the information they received from the documents. Lines of inquiry begun on the basis of information gleaned from these bank accounts must be discontinued until the orders are properly made.
Senior legal sources were unsure last night how much this would delay the tribunals. If Mr Justice Moriarty were to act quickly and seek to make the orders again this week, the issue could be decided by September. However, if the matter goes to the High Court and ultimately the Supreme Court for adjudication, it might not be disposed of until the new year.
The issue to be decided is the level of evidence a tribunal must have before it is entitled to examine a bank account. Should it have evidence that on the balance of probability the account contains information that would be helpful? Or would it be enough, for example, for a tribunal to state that it has confidential information suggesting that access to particular bank records would be of assistance? Argument over this is likely to involve constitutional issues, such as at what stage the constitutional right to privacy is overridden by other constitutional provisions. It is therefore a matter that could well find itself before the Supreme Court in the coming months.
Roughly 36 orders of discovery are at issue in relation to the Haughey family. The precise number will emerge this morning when the Supreme Court sits to quash each one. Should Mr Haughey and the relevant members of the Haughey family make representations against each one - as they are entitled to do - the making of orders would take a considerable amount of time even if the issue is not appealed elsewhere.
Of course, in reality the Moriarty tribunal team has almost certainly already examined the information gleaned from its discovery orders in relation to the Haugheys. It is very likely that many of these orders produced no information of value, and the tribunal therefore would have no wish to make these same orders again.
However, a decision not to do so would be made on the basis of the information gleaned from the orders which have now been quashed, something which the tribunal is forbidden from doing. Therefore the tribunal may well have to apply again for orders which it knows are useless, simply to show that it is not using the information improperly received.
The practice of vigorous judicial examination of the recent political past in search of irregularities is a new one, and so hiccups in that examination are not surprising. There was no clearly established procedure for Mr Justice McCracken (Dunnes payments) and now Mr Justice Moriarty (payments to politicians) and Mr Justice Flood (planning) to follow as they attempted to shed light on past practices.
Court actions such as those taken by Mr Haughey and his family in relation to the Moriarty tribunal and Mr Bailey, his wife and his company Bovale in relation to the Flood tribunal will serve ultimately to set down clear unambiguous procedures for these inquiries.
In the current political climate the setting down of such procedures is needed. The number and complexity of judicial investigations into public life is growing. What began as a newspaper report about an extension to Mr Michael Lowry's house grew into a tribunal investigating payments by Mr Ben Dunne to politicians and others, which in turn spawned the Moriarty tribunal investigating other payments to Mr Haughey and Mr Lowry, and was joined by the Flood tribunal investigating planning matters in north Dublin. Tribunals seeking to uncover information that some would prefer to remain hidden will be a major feature of Irish political life in the next few years. The streamlining of the methods they use through a series of legal challenges is a tedious, tortuous but necessary aspect of that.