Setting aside of findings by tribunals leaves sour aftertaste

State ends up paying legal bills

Many people were appalled when a Supreme Court decision caused findings of planning corruption and obstruction against powerful individuals to be set aside and the State became liable for their legal costs. For those who had followed the cross-examination of key witnesses before the Flood and Mahon tribunals over many years, the notion they had not "hindered and obstructed" its work was risible. Yet that legalistic conclusion was forced on Mr Justice Alan Mahon.

Not all tribunal findings have been set aside. Defending its work, Mr Justice Mahon said nothing in its final report, which investigated the financial affairs of former taoiseach Bertie Ahern, had been withdrawn. Adverse findings against prominent individuals in a number of its interim reports still stood, while other conclusions had been partially altered. So, it wasn't a complete waste of time. But it was a close run thing. It shows how a strictly legal process and deep pockets can unpick tribunal conclusions that appear well grounded.

The judicial establishment regards the separation of powers between the executive and the judiciary as sacrosanct and has traditionally viewed Oireachtas inquiries in a jaundiced light. Bodies that make findings on "the balance of probability" are seen as suspect, when the courts apply a criminal law standard of "beyond a reasonable doubt". This dichotomy has brought a succession of legal challenges to the authority and work of tribunals, though their terms of reference were set down in law by the Oireachtas

Process and interpretation drives our legal system. Tribunals of inquiry work to separate terms of reference. Governments want fast, cost-efficient outcomes from sworn public inquiries. They don't normally get them. But it doesn't stop them asking. So, between 1997 and 2002, Mr Justice Feargus Flood conducted investigations he believed to be "fair, appropriate and in compliance with legislation". His terms of reference asked for quick results and, following private interviews, Mr Justice Feargus Flood excluded material from the original whistle-blower, James Gogarty "to avoid revealing the identity of people not immediately relevant to the tribunal's work". A similar practice was followed when Tom Gilmartin was interviewed.

A successful Supreme Court appeal for the release of all Gilmartin material led to a similar challenge for the release of evidence given by Mr Gogarty. This was found to contained unproven allegations against third parties and so was adjudged to raise questions about Mr Gogarty’s credibility. As a consequence, all findings based on his evidence were withdrawn and the legal bills of persons found to have hindered and obstructed the tribunal will be paid. The cost will run into tens of million of euro. Another fine mess, your lordships.