The Gallagher family, whose property at St Johnston, Co Donegal, was searched "on the word of a lying Garda informer" in 1997 for explosives and subversive paraphernalia, are to legally challenge Mr Justice Morris's refusal to examine the circumstances of the search.
Mr Justice Abbott granted Alfie, Anne and James Gallagher leave to seek a High Court order compelling the Morris tribunal to hold such an inquiry and reverse its decision setting aside the grant of full legal representation for the Gallaghers at the tribunal.
Mr Alan Toal, for the Gallagher family, was also granted leave to seek declarations that they had a legitimate expectation that their interests would be protected and that Mr Justice Morris's exclusion of them from further proceedings amounted to a failure to vindicate their good name and constitutional rights.
Mr Toal submitted that the tribunal had mistakenly determined that, because the search had yielded nothing, coupled with the fact that the Gallaghers were accepted to be above reproach, this constituted a "cure" for an unlawful search by the State.
He told Mr Justice Abbott that, acting on the word of an informer, now proved to be a liar, 240 gardaí and soldiers had searched the Gallagher property.
Not only had nothing been found and considerable damage caused, but the State had succeeded in destroying the reputation of the Gallaghers, one of few Roman Catholic families living in the staunchly Protestant community of Ardagh, St Johnston. Their business as agricultural contractors had collapsed as their neighbours would not employ them, and one son had had to emigrate.
Mr Toal submitted there was already evidence before the tribunal to suggest the existence of a conspiracy between two members of the Garda and the Garda informer to plant explosives on the Gallagher property. It was no answer to say that, because nothing had been found, and because the Gallaghers were nice people, that was an end to the investigation.
He said the tribunal should inquire into what had been done to the Gallaghers by agents of the State and the motivation behind their actions.
The search had been carried out at the prompting of a garda who already had established that the Garda informer concerned was nothing but a liar. Another garda had singularly refused to go on the search as he had known there was nothing to be found.
Mr Justice Abbott, in granting the reliefs sought by the Gallaghers, said he did so on the basis that, at the application for leave to seek a judicial review stage, the threshold they had to pass in terms of proof was not high. That threshold would be much higher at later stages.