Lawyers for former Fianna Fáil minister Mr Ray Burke have appealed to the tribunal for payment of their €10.5 million legal costs.
Mr Burke would suffer an "unfair and crippling" financial penalty if the tribunal decided to withhold his costs, Mr Aidan Walsh SC, for the former politician, told the tribunal yesterday.
Mr Burke was "not in a position" to pay his legal debts arising from his five-year involvement with the tribunal, which was set up to investigate payments he received in the 1980s and 1990s, Mr Walsh said.
Withholding his costs would amount to a punishment or penalty equivalent to a guilty verdict in a trial, he said.
Sixteen parties are at risk of having their costs withheld because they hindered the tribunal's work, and six of these have turned up at the present hearings to argue their cases in person. Lawyers for Mr Burke, who was found to have received a number of corrupt payments, made the first submission.
Last year, Mr Burke began legal proceedings aimed at preventing the tribunal chairman, Judge Alan Mahon, determining the issue of costs. Mr Burke argues that the former chairman, Mr Justice Feargus Flood, should deal with the matter, as he heard the relevant evidence.
Yesterday, Mr Walsh suggested that legislation passed earlier this year to empower Judge Mahon to determine the costs issue could be invalid or unconstitutional. He described Mr Justice Flood's interim report as flawed and inaccurate and claimed its findings about Mr Burke were ultra vires.
Mr Justice Flood had made "incongruous findings without a shred of evidence" about Mr Burke, and this was a "fatal flaw" which undermined its standing in dealing with the issue of costs.
Five years' work of the tribunal had been synopsised into a concise report, he pointed out. Judge Mahon, in determining the matter, would have to look at all the evidence and the documentary evidence and correspondence behind it, and this would be a "mammoth task".
He said the chairman had been "parachuted" into a difficult situation. Judge Mahon could not simply read the report; in order to interpret it, he would have to go into the background. If the tribunal were a court case and the judge had retired, the evidence would have to be reheard by another judge, he pointed out.
Mr Walsh said his client had not been given any forewarning that he was going to be judged an obstructive witness or one who had hindered the smooth running of the tribunal.
Once the Taoiseach had announced the setting up of the tribunal in 1997, Mr Burke had resigned from politics, ceased all employment and set about co-operating with the tribunal.
He said Mr Burke had made a "valuable contribution" to the tribunal. His counsel had not delayed proceedings; rather, they made numerous evidential concessions and did not obstruct its work.
Mr Burke had attended all hearings that were relevant to him. Where his lawyers had not attended the tribunal, this was done in the public interest to limit the costs involved.
Unlike other witnesses, Mr Burke had never been told to consider his evidence and had never received a warning from the tribunal, his counsel said.
At the same time, the former politician had paid considerable sums to the Revenue Commissioners to settle tax liabilities arising from the inquiry.
Mr Martin Hayden SC, for builders Brennan and McGowan, said the relevant fact in determining costs was whether a person participated in a tribunal and answered questions to the best of his ability.
