The legislation appears to be clear. There is no circumstance in which a tribunal can seek to recover its own costs from anyone appearing before it. A person can be unco-operative and can mislead it, forcing it to incur great expense in carrying out its task, yet this person cannot be made liable for the extra costs forced upon the tribunal. Mr Charles Haughey's initial denial that he had received £1.3 million from Ben Dunne sent the tribunal team on a long, and ultimately successful, voyage along the money trail to prove him wrong.
They ploughed through thousands of documents from Guinness and Mahon and the Irish Intercontinental Bank; they travelled to London and the Cayman Islands for complex court hearings; they and a couple of dozen pricey barristers sat through days or oral evidence designed to prove the money trail that began at Ben Dunne ended at Charles Haughey.
However, the chairman of the tribunal, Mr Justice McCracken, and counsel for the public interest, Mr Edward Comyn SC, agreed yesterday that the tribunal did not seem to have the power to make Mr Haughey pay for the tribunal's costs in this regard.
Mr Justice McCracken may order Mr Haughey to pay some of the costs of parties represented at the tribunal, but not the costs of the tribunal itself.
This is unlikely to have been the intention of the Oireachtas when it passed the Tribunals of Inquiry (Evidence) (Amendment) Act 1979. However, Section 6 of the Act states:
"Where a tribunal, or, if the tribunal consists of more than one member, the chairman of the tribunal, is of the opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the tribunal or the chairman, as the case may be, may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order."
Put simply, the tribunal can direct that all or some of the costs of a person appearing before the tribunal be paid by another person. There is no provision for the costs of the tribunal itself to be sought from another person.
It is likely that Mr Comyn will apply to have Mr Haughey ordered to pay some of the costs of others represented at the tribunal. He told yesterday's hearing that he would have a submission prepared within two weeks and that a copy would be sent to Mr Haughey to allow him prepare any response he may wish to make.
Mr Haughey's decision not to be represented at yesterday's hearing has had the effect of causing further delay. Mr Haughey sent a message to the tribunal at 10 a.m. yesterday saying that he would not be seeking his costs, and that his legal team would not, therefore, be turning up.
In their absence, Mr Justice McCracken said that an application to have Mr Haughey ordered to pay other people's costs should not be heard until he was notified.
Mr Comyn outlined four principles which, he said, should govern who was awarded costs. Firstly, that a party or person had been given representation before a tribunal did not automatically give them the right to costs. Secondly, the tribunal should award costs only where it was of the opinion that it was equitable and useful to do so.
Thirdly, a party could be deprived of costs based on its conduct at the tribunal. Fourthly, conduct at the tribunal might attract an order that a person should pay the costs of another person represented before the tribunal.
It was on the basis of these principles that 26 legal teams which had represented parties to the tribunal sought to be awarded costs. Mr Justice McCracken reserved his judgment on the applications, most of which appear uncont en
tious.
The total cost is difficult to estimate. Barristers for the tribunal are estimated to have earned £100,000 to £120,000 each since the tribunal began its work last February. Other barristers have fee agreements with their clients.
How much of the enormous bill will be paid by the Exchequer, and how much by Mr Haughey, has yet to be determined at another sitting of the tribunal.