COUNSEL for Mr Ben Dunne was accused of making a "somewhat misleading statement" to the tribunal of inquiry yesterday. Mr Garrett Cooney SC, for Dunnes Holding Companies and their subsidiaries (Dunnes), said his colleague, Mr Paul Gallagher SC, for Mr Ben Dunne, was being "neither fair nor accurate" in his report to the tribunal on difficulties he said his client was having in providing documents.
Mr Gallagher had said Dunnes had sought "prior restraint" on what documents Mr Ben Dunne might provide concerning his confidential severance agreement with them on November 17th, 1994. He said they had been in contact with Dunnes on the matter, seeking their consent, so hoping to avoid litigation which might arise from providing documents which could be construed to be in breach of confidentiality.
This consent, however, "was not forthcoming", he said. Dunnes wanted "an indication in advance" of what documents concerning the agreement it was intended to submit to the tribunal. This was not acceptable to his client, said Mr Gallagher.
He also accused Dunnes of trying to exercise "a dual restraint" over Mr Ben Dunne on the matter, both in wishing to see in advance what documents he would submit to the tribunal on the agreement and in "the threat of a breach of confidentiality of the agreement being held over us".
He said his client would wish to make a statement to the tribunal which "of necessity" might raise concerns about breaching the confidentiality of the agreement. His client had "undertaken that he will respect that confidentiality" and "doesn't believe discovery to the tribunal will breach confidentiality".
After questioning his colleague's interpretation of Dunnes's stance on the issue, Mr Cooney said he believed what had arisen was "a somewhat artificial dispute at this stage". He said Dunnes was prepared to "fully cooperate" with the tribunal and it had "no objection" to making available documents about the agreement of November 1994.
He quoted from a letter sent by Dunnes' solicitors to Mr Ben Dunne's solicitors, in reply to a letter from them dated February 5th. It explained that Dunnes was in discussion with counsel for the tribunal on how its confidentiality could be "fully protected".
Mr Justice McCracken told both counsel that "any order I make must override any agreement made between the parties". He said the order "extends to all documents, regardless of confidentiality agreements and overrides private agreements".
Mr Gallagher said it was hoped to have an affidavit from Mr Ben Dunne sworn by early next week. Mr Justice McCracken said it should be done "on or before the 15th of March, or at such time as the tribunal may agree".
Mr Cooney indicated the affidavit for his clients would be sworn by the group secretary, Mr Pat Doherty.
