Plans by the Flood tribunal to make Mr Ray Burke and other unco-operative witnesses pay a large share of its costs have run into serious difficulty.
Tomorrow's scheduled hearing of the tribunal on the allocation of costs may be postponed for a second time, according to legal sources. It was originally due to start last week but was postponed abruptly.
Mr Justice Flood has asked Mr Burke and others that were found to have hindered or obstructed the tribunal to explain why they should not pay their own costs and those of the tribunal.
The tribunal's stance is expected to be buttressed by lawyers for the Department of Finance and the public interest, who will argue that the tribunal would not have lasted as long as it did if Mr Burke and others had been more co-operative.
The taxpayer, therefore, should not bear the extra cost, they will say.
However, Mr Burke is claiming he made a deal with the tribunal five years ago, under which he offered his co-operation in return for having his legal costs covered. Other parties have indicated they will resist any attempt to impose costs on them and may take High Court action if this threat materialises.
The hearings on costs threaten to be acrimonious. Unusually, the tribunal has not circulated the written submissions prepared by the various legal teams, prompting one lawyer to accuse it of trying to "ambush" his client.
In recent months, lawyers representing the 177 witnesses who gave evidence during the first five years of the tribunal have submitted bills amounting to tens of millions of euros.
Most will have their application for costs approved by Mr Justice Flood, although the actual amount in each case will be decided by the Taxing Master.
The tribunal has cost about €25 million so far, but this figure only covers its own expenses. The final figure for the first five years, when the legal costs of witnesses are added in, is likely to exceed €50 million.
The only way to reduce this bill is to make non-co-operative witnesses such as Mr Burke pay a portion of the costs. The tribunal could then claim to have paid its way, or most of it.
Many senior lawyers have doubts about the tribunal's ability to levy huge amounts in costs on individuals it says failed to co-operate.
There is also scepticism about the ability of Mr Burke, and others, to pay the multimillion euro sums that could be demanded of them.
However, it is expected that Mr Justice Flood will have left the tribunal by the time any of these disputes end up in the High Court.
The chairman, who will be 75 next month and has retired as a judge, will step down from the tribunal after the matter of costs is determined, according to Law Library sources.
Future hearings into planning corruption would then be chaired by three new tribunal judges who were appointed last year.
The interim report published by Mr Justice Flood last September found that 18 people had either hindered and obstructed the work of the tribunal or had failed to co-operate with it.
They included Mr Burke; former Government press secretary Mr P.J. Mara; builders Mr Tom Brennan, Mr Joe McGowan and Mr Michael Bailey; businessmen Mr Joseph Murphy jnr and the late Joseph Murphy snr and the founders of Century Radio, Mr Oliver Barry and Mr James Stafford.
The hearings on costs are expected to last two weeks, after which the tribunal will resume its inquiries into allegations of planning corruption against nine politicians.
