The Minister for Health, Mr Martin, is expected to give evidence in the High Court today opposing a petition by the defeated 2002 general election candidate, Ms Kathy Sinnott, aimed at overturning the election result in Cork South Central, where Mr Martin topped the poll.
The Minister was in court yesterday afternoon and is expected to return today.
Ms Sinnott is alleging Mr Martin spent more than the €38,092 limit permitted under legislation during the May 2002 election campaign and that this had a material effect on the outcome of the election. She was defeated for the last seat by six votes.
Lawyers for Ms Sinnott are contending that a written undertaking by Mr Martin to assign 50 per cent of his spending limit to his party was a binding agreement and that there is no evidence to indicate he assigned less than that.
The assigned amount, plus Mr Martin's own spending of €21,430, would give him a total spend of more than €40,000, placing him in excess of the limit of €38,000, it is claimed. Mr Martin has denied the claims.
The petition challenging the result has been brought in the name of Ms Sinnott and Mr Mark Menihane, an elector in the Cork South Central constituency, with an address at Ballinrea, Carrigaline.
In evidence yesterday Mr Gerard O'Mahony, election agent for the Minister, said Mr Martin had signed an undertaking to assign 50 per cent of his election spending limit of €38,092 while knowing that £5,000 of that amount was to be reassigned back to him.
Mr O'Mahony said he had only agreed to act as election agent for the three Fianna Fáil candidates in Cork South Central on the basis that he would have a "contingency fund" under which £5,000 from the 50 per cent amount assigned by each candidate to Fianna Fáil would be immediately reassigned back to him.
He was to have control of that fund.
Before the general election he had reached an arrangement with Mr Hugh Dolan, finance director of Fianna Fáil, that that reassignment would happen and that any money not spent out of the contingency fund would be returned to the party, Mr O'Mahony said.
However, Mr Dolan had insisted that all three Fianna Fáil candidates in Cork South Central should nonetheless sign undertakings to assign 50 per cent of their limit because, Mr O'Mahony said, Mr Dolan was concerned that if other Fianna Fáil candidates were aware money was being reassigned to candidates, the party would be "avalanched" with similar requests.
He said Mr Martin had delayed in signing the assignment undertaking because he was concerned to ensure the £5,000 would be reassigned.
Mr O'Mahony said he had returned a statement recording Mr Martin's expenses to the Public Office Commission on December 20th, 2002, and had signed that statement and declared its content to be true and accurate.
The statement recorded that Mr Martin's total spend was €21,430, including spending from public funds. It also recorded that Mr Martin had assigned €15,546 to Fianna Fáil.
Mr Justice Kelly asked Mr O'Mahony if it was not the case that the document signed by Mr Martin assigning 50 per cent to Fianna Fáil was the binding agreement to be returned to Fianna Fáil headquarters.
The judge asked if it was not the case that the signed document did not reflect the true agreement because it was subject to the "side agreement" between Mr O'Mahony and Mr Dolan, which latter agreement was only evidenced by a figure of £5,000 referred to in a spreadsheet.
Mr O'Mahony replied: "Yes." He said his view was that he had an agreement with Mr Dolan regarding additional money and, if there was change, it was to revert to the party. He understood the inclusion of the £5,000 figure in the spreadsheet constituted a written agreement.
He agreed the spreadsheet document was different in form from what was in the signed undertaking.
Earlier, Mr O'Mahony said he had carefully recorded all Mr Martin's expenditure, including funds spent by his constituency office in Cork, which latter included office costs and staff salaries.
He said he had been advised by Mr Dolan during the election campaign that the High Court might decide, in a case then being taken by a Fianna Fáil Dublin Mid West election candidate, Mr Des Kelly, that money spent by election candidates out of public funds must be deemed election expenses, and he had taken careful account of money being spent in the event of the High Court so deciding.
On the eve of the general election, May 16th, 2002, the High Court had found in favour of Mr Kelly and found to be unconstitutional those provisions of the electoral Acts which exempted from calculation as election expenses services provided free to outgoing TDs, senators and MEPS, such as office space, phone services and postage.
In November 2002 the Supreme Court affirmed the High Court's finding and rejected an application by the State for a declaration that the High Court order should be prospective, applying only to future elections.
That latter refusal created the possibility of legal challenges to the election of some candidates in the 2002 election.
