Judge Alan Mahon has given 19 parties who hindered, obstructed or failed to co-operate with the planning tribunal a week to indicate why they should be awarded their multimillion euro legal costs, writes Paul Cullen.
The tribunal chairman plans to hold public hearings later this month at which the onus will be on lawyers for these parties to show why they should be awarded their costs.
If they fail to make written submissions within the seven-day period set by Judge Mahon, they will be deemed not to have made an application to the tribunal, and are likely to receive no costs.
The chairman signalled that he may grant costs to witnesses who, although involved in corruption, co-operated with the tribunal. This is likely to be interpreted as a "whistleblower's charter" and could see former Government press secretary Mr Frank Dunlop get his costs in later modules of the tribunal.
Yesterday's announcement, in which Judge Mahon ruled that he has the discretion to decide whether or not to award costs, directly affects Mr Ray Burke, developer Mr Michael Bailey, builders Brennan and McGowan, corrupt former official George Redmond and others who were found to have hindered or obstructed the tribunal in its first five years of work.
His ruling will almost certainly be challenged in the High Court, possibly even before the seven-day deadline.
The cumulative legal bill submitted by the 19 individuals is believed to approach €50 million, with Mr Burke's alone accounting for €10.5 million.
In his ruling, Judge Mahon said his interpretation of tribunal legislation was that he was entitled to award a party its legal costs where there were sufficient reasons rendering it equitable to do so. While it was clear that he had discretion, he did not accept there was any "automatic entitlement" to costs for witnesses appearing before the tribunal.
The initial legislation setting up tribunal of inquiries, dating from 1921, made no express provision for costs, he pointed out. A 1979 amending act introduced this provision, and its principles were followed in the case of the Whiddy, Stardust and Kerry Babies inquiries.
Drawing on the findings of these inquiries, Judge Mahon said he was satisfied the power to award costs was "discretionary".
He rejected arguments by some parties that he should not have regard to the "substantive" findings - of corruption - in tribunal reports, but merely to the finding as to whether someone co-operated or not. This was the interpretation of the legislation adopted by Mr Justice Hamilton in the Beef tribunal.
Judge Mahon pointed out that new legislation had been passed since the 1979 Act. He said he was "firmly of the view" that the word "findings" meant the findings of corruption, and that he was entitled to consider such findings when exercising his discretion on costs.
However, the chairman added that a finding of corruption did not of itself mean that he must refuse costs of a person who was found to have been corrupt.
He cited the example of a person who had co-operated fully with the tribunal by providing truthful information and was subsequently found to have been corrupt. Such a finding would not "of itself" prevent the person recovering some or all of his costs.
The tribunal's task was to ascertain the facts, he said. Anything that served to reduce or remove the incentive of people to co-operate would be detrimental to its capacity to do this.
He promised to take into account a number of factors when making a decision on costs, including the nature and extent of non co-operation, the conduct of a witness, whether a person made false allegations, a person's "personal circumstances" and the consequences of a refusal of costs.