A truncated planning tribunal could reduce costs to near the €1 billion mark, writes Paul Cullen
The one clear fact that has emerged from this week's arguments over tribunal costs is that the final bill for the planning inquiry will be much larger than anyone ever dared to estimate up to now.
Whether the amount is €300 million maximum, as tribunal chairman Judge Alan Mahon says, or a round billion, as Minister for Justice Michael McDowell and others in Government insist, the cumulative sum is astonishing.
This is after all a process which will create nothing, and its outcome will have no direct bearing on the lives of most people. The result will be a book full of words - important words, undoubtedly, but with no legal effect.
If the tribunal were to end tomorrow and if it were similar to other inquiries, the final cost would be about €200 million. I base this estimate on current costs for the inquiry of about €60 million and third-party legal costs of twice this figure. Add in €20 million for other costs, including the expense involved in discovering documents from financial institutions, and you arrive at this figure.
However, this tribunal is not like other inquiries. From the start, the conflict has often spilled over into the courts.
It started messily and the extension of its terms of reference gave it a sprawling remit. The number of witnesses called and institutions asked to provide documents runs into thousands.
The multiple of third-party costs to core tribunal costs is likely, therefore, to be higher than in any other inquiry, certainly much higher than 2-1. So far, little information has been made public about the legal bills received by the tribunal, but we do know that Ray Burke's lawyers have submitted a bill for €10.5 million, while the legal bill for whistleblower James Gogarty comes to €3.5 million. It is possible that even bigger bills have been submitted.
In his letter to the clerk of the Dáil, Judge Mahon is cautious: "It may be that part of the costs incurred to date will be recovered from others."
So the tribunal may try to recover some of the costs, but it will have to fight a long battle. Some of those under fire are extremely wealthy and are likely to fight any such decision in the courts (thereby running up more bills).
Others don't have the money, so recovery will be difficult.
All applications for legal costs are examined by the Taxing Master, the legal profession constantly reminds us. However, experience tells us that the involvement of the Taxing Master, himself a lawyer, has no great effect on overall costs, save the trimming of some individual bills. Beyond noting who is in the hall on a particular day, the tribunal doesn't seem to be tracking third-party costs in any detailed manner.
Another factor worth considering when trying to assess the cost of the tribunal is its tendency to underestimate the time (and therefore the cost) needed to conduct inquiries. The story of this tribunal is one of missed deadlines, repeated delays and long breaks.
Mostly, this is due to external difficulties, such as legal challenges, calls for rulings or problems slotting in witnesses, but another cause is the archaic legal practices followed by the inquiry.
So when Judge Mahon now says he can finish his work "early in 2008", he is either being hopelessly optimistic or the tribunal has decided to abandon specific areas of inquiry. The Quarryvale module alone will take 12 to 18 months, I would guess, and other business related to Frank Dunlop will take several more months.
Then there are the six or seven inter-related modules centred on the late Liam Lawlor's land deals with Jim Kennedy. These could take several years, unless the judges opted to examine just one deal and treat it as a sample.
It took the tribunal over five years to complete its investigations into the JMSE and Oliver Barry payments to Ray Burke, so how long would it take to examine the third payment he received in 1989, from Tony O'Reilly's Fitzwilton? Six months? A year?
So it may be that Judge Mahon and Mr McDowell are talking at cross purposes. A tribunal that investigates Quarryvale, Fitzwilton and Mr Lawlor's arcane dealings would last years and could end up costing €1 billion.
However, a truncated inquiry that pulls down the shutters after Quarryvale should cost considerably less, although not quite the low figure cited by the chairman.