THE former Taoiseach, Mr Charles Haughey, has been given the weekend to consider new revelations concerning the claims that he received £1.3 million from Mr Ben Dunne.
In a surprise development at the tribunal yesterday, Mr Dunne's solicitor, Mr Noel Smyth, said he had had five meetings with Mr Haughey since the Buchanan inquiry into the payments to politicians controversy began.
A sealed statement made by Mr Smyth, concerning the contents of his conversations with Mr Haughey, was yesterday sent to the former Taoiseach for him to decide whether he wishes to be represented at the tribunal on Monday.
The tribunal chairman, Mr Justice McCracken, will decide then whether to direct Mr Smyth to divulge what Mr Haughey said to him.
Mr Smyth had not referred to the meetings with Mr Haughey in a written statement made to the tribunal before he gave evidence yesterday, and the revelation clearly took lawyers by surprise.
The matter arose as counsel for the tribunal, Mr Michael Collins SC, was questioning Mr Smyth about the three bank drafts with fictitious names, for £70,000 each, which Mr Dunne said he handed to Mr Haughey in 1991.
Mr Smyth said he was concerned, as Mr Dunne's solicitor, that Mr Dunne had only remembered this year giving the drafts to Mr Haughey. Mr Dunne had previously been under the impression that the drafts had been given to members of his family.
No reference had been made by Mr Dunne to these payments in legal correspondence with other members of the family in 1994, when he had outlined other payments of more than £1 million allegedly made to Mr Haughey.
Mr Smyth said that by making a new allegation in 1997, it seemed that "we were switching horses in midstream". He had told Mr Dunne that no observations should be made about the three drafts to anybody until "we were satisfied about where they went".
Mr Collins suggested to the witness that he was concerned that Mr Dunne had made an allegation in 1994 and was now "topping it up" with another one in 1997, and anybody who wished to contradict him could point to it as a possible weakness.
Mr Smyth said it was more serious than that. If Mr Dunne's credibility about the drafts could be challenged, than his credibility about everything he had said could be damaged.
He told Mr Collins he agreed with Mr Dunne he would try to pursue the matter directly with Mr Haughey.
Asked what steps he took, the witness replied: "I telephoned Mr Haughey and asked him ...
Mr Collins interrupted and said before Mr Smyth completed his answer, could he confirm that he must have had considerable discussions with Mr Dunne "before taking a step of this nature"?
Mr Smyth said Mr Collins should be made aware that before he took this step, he had been contacted by Mr Haughey directly. "He asked me if I was prepared to meet with him as he had some questions that he wished me to answer."
He was not Mr Haughey's solicitor but he found himself in a position where Mr Haughey bad asked to meet him, both at the time of the Buchanan inquiry and again in relation to the tribunal.
He met Mr Haughey on five occasions, three times at his home in Kinsealy and twice at a neighbour's house because of the possibility of media attention.
Mr Collins intervened to say the tribunal had had no notice of what Mr Smyth was saying, as he had not put it in his earlier written statement.
Mr Smyth said he would explain the reason. He believed that in giving information to him in relation to the Buchanan inquiry and the tribunal, Mr Haughey had done so in confidence. He had imparted the information as he would to a solicitor.
He believed Mr Haughey had not distinguished between him being a solicitor and acting as Mr Haughey's own solicitor. Therefore he took the view that unless the tribunal directed him to do so, he did not intend giving the information now.
On the other hand, if the tribunal directed him to give the information, he was required to do so. But he would ask the tribunal to consider that when Mr Haughey approached him, he did not see the information discussed being inquired into by the tribunal.
Mr Collins asked if the position then was that Mr Smyth had had conversations with Mr Haughey in the context of the Buchanan inquiry; Mr Smyth was not acting for Mr Haughey; whatever Mrs Haughey had said was in confidence, perhaps because he was speaking to a solicitor; and if Mr Smyth was to divulge the details before the tribunal he would be breaking that confidence.
Mr Smyth said Yes.
Mr Collins said the case was not being made that the confidentiality was based on a solicitor client relationship, and Mr Smyth said that was correct.
Mr Collins said he would then apply to the chairman, Mr Justice McCracken, that he should direct Mr Smyth to give the information, as there was no solicitor client privilege involved. While it was proper and correct for Mr Smyth to leave the matter out of his statement, there was no privilege in law for things said in confidence in the conventional way.
Mr Smyth was then asked by the chairman if Mr Haughey was under the impression that he was acting as his solicitor, and he answered No. He had asked Mr Haughey who his legal team were in relation to the matter and be had told him, so there was no confusion.
He also confirmed to the chairman that Mr Haughey was aware that in the context of the conversations Mr Smyth was Mr Ben Dunne's solicitor.
Counsel for the public interest, Mr Edward Comyn SC, said it might not be possible at this stage to say exactly what the public interest was, until other evidence was before the tribunal. However, the issue appeared to be concerned with the matter the tribunal was inquiring into.
Counsel for Mr Ben Dunne, Mr Seam us McKenna SC, said everything about the tribunal was a matter of urgent public interest. But perhaps Mr Haughey should be alerted to the situation.
Counsel for Dunnes holding companies and subsidiaries, Mr Garrett Cooney SC, said in their submission it was not a matter of a client solicitor relationship and privilege did not apply. To audible "hear hears" from the public gallery, he was supported by counsel for Mrs Margaret Heffernan and Mr Frank Dunne, Mr Adrian Hardiman SC.
The chairman said he believed it would be wrong to proceed without allowing Mr Haughey an opportunity to make his argument. Mr Smyth then informed the tribunal that he had anticipated this matter coming up. On the advice of counsel he had decided to make a statement concerning his conversation with Mr Haughey and post it to him himself. It was now in a sealed envelope. He had intended to give it to the tribunal if so directed.
He added that Mr Haughey was aware of the conversations and there was nothing in the statement that should be new to him.
The chairman directed that the envelope not be opened and that it be sent forthwith to Mr Haughey. He adjourned the hearing until Monday at 10.30 a.m. Mr Smyth will return to the witness box at 1.45 p.m. when the chairman will hear submissions on whether he should be directed to reveal the details of his conversations with Mr Haughey.