Ahern succeeds in court challenge to Mahon tribunal

FORMER TAOISEACH Bertie Ahern has won his High Court challenge to the handling by the Mahon tribunal of aspects of its inquiries into lodgements to Mr Ahern’s accounts when he was minister for finance in 1993 and 1994.

The three-judge court upheld arguments, on all grounds, by Mr Ahern that the parliamentary privilege over Dáil statements as provided for in Article 15.13 of the Constitution does not permit the tribunal – in its report or while Mr Ahern is giving evidence to it – to draw attention to his Dáil statements about his financial affairs which may be inconsistent with his statements outside the House or in his evidence.

The tribunal may reproduce the Dáil statements of September and October 2006 in its report but is prohibited by Article 15.13 from suggesting they were untrue or misleading or inspired by improper motivation, the court ruled. The public could “draw their own conclusions” whether the statements were inaccurate and, if so, whether such inaccuracies were “deliberate or accidental”.

The court also ruled Mr Ahern is entitled to claim legal professional privilege over 150 documents relating to his retention of banking expert Paddy Stronge to refute the tribunal’s claims about the nature of two lodgements – one to Mr Ahern’s account and the second to an account of his former partner Celia Larkin.

A third issue – in which Mr Ahern sought orders requiring the tribunal to hand over documents on which it based its claims concerning the lodgements – was resolved following the tribunal’s agreement to hand over those documents amounting to 110 pages of bank data and computer records.

Mr Ahern sought the documents to refute the tribunal’s claim that a sum of £28,772 lodged to the account of Ms Larkin at the AIB branch at O’Connell Street, Dublin, on December 4th, 1994, was equivalent to an exchange of $45,000.

The tribunal has also suggested that an amount lodged into Mr Ahern’s account on October 11th, 1994, was equivalent to stg£25,000. Mr Ahern has said the lodgement was for £16,500 plus stg£8,000 given to him by friends following a dinner in Manchester.

The action was heard over two days last month by the president of the High Court, Mr Justice Richard Johnson, Mr Justice Peter Kelly and Mr Justice Iarfhlaith O’Neill. Mr Justice Kelly delivered the court’s 48-page judgment with which the other judges agreed. The issue of costs will be decided later.

Upholding Mr Ahern’s claim of litigation privilege, Mr Justice Kelly said Mr Ahern was not “a mere witness” before the tribunal but a person whose conduct is under examination by the tribunal.

Mr Ahern was therefore entitled to certain fundamental constitutional rights identified by the Supreme Court in its 1971 judgment on proceedings by the late taoiseach Charles Haughey. Those “Re Haughey” rights included the right to one’s good name, to fair procedures and to natural and constitutional justice.

The tribunal was not involved in the administration of justice but has an adjudicatory function and may well affect Mr Ahern’s entitlement to his good name, the judge said. The tribunal accepted its report had the potential to have serious and damaging effects for persons called before it.

In those circumstances, it would be “anomalous” and make little sense if a person to whom the Re Haughey rights applied could not claim litigation privilege, the judge said.