No government decisions on defence strategy

The senior counsel appointed to examine the previous coalition's handling of the McCole case found that the "government did not make a decision on the manner in which the case was to be defended but was generally made aware of what was deemed to be the appropriate approach".

Ms Fidelma Macken SC prefaces her report with the qualification that her examination of the case is confined to documents.

"It is probable that these matters are not comfortably answered by references to mere documentation, and I want to point out that the documentation does not - as can be readily appreciated - translate nuances which one would expect to find attaching to matters of this sort."

Ms Macken said she could "find no decision or direction given by the Government on the McCole strategy during the course of proceedings". The State's "approach" was primarily influenced by the Attorney General's advice to the Department of Health that the BTSB had been negligent.

The report poses questions on the handling of the case and outlines the answers found in the documents, which include solicitors' letters, the text of legal opinions, correspondence from the Chief State Solicitor's office and government memoranda.

One key question was who decided to oppose Mrs McCole's request for anonymity. The report says there was no "outright opposition to the motion for anonymity" but this was a "real concern and worry" for the State.

The legal advice to the Department of Health was that there were good grounds for objecting to anonymity but it was decided to proceed with a "mild objection" and to co-operate with any decision the court made.

On who decided to resist Mrs McCole's request for an early hearing the report states, "this was decided on legal advice".

It does not state who decided this on the advice, but says the considerations included the age of the claim, the need to call medical experts, the complex nature of the case and a medical examination of Mrs McCole which indicated that she would be "sufficiently well for a hearing in October".

The report traces the sequence of events leading to the decision by the BTSB to admit liability in Mrs McCole's case.

Counsel for the BTSB gave preliminary advice and several witnesses were interviewed in early September 1996. On September 9th all three barristers for the BTSB gave the board a 13-page opinion.

Eleven days later the BTSB admitted liability in a letter to Mrs McCole on September 20th, 1996.

The report also asked the question of when the BTSB decided to make a lodgement to court. A defendant makes a lodgement to court as a form of protection against legal costs. If the damages awarded are lower than the amount lodged in court the plaintiff must pay the legal fees.

The report said the "precise date is unclear" but the question was first mentioned in early April 1996. This was "in the context of getting a full and complete medical report and assessing the prognosis for Mrs McCole."

The BTSB was advised by its counsel to consider making a lodgement prior to the deadline of May 15th, 1996. And the lodgement was made on that date.

The BTSB informed the Department of Health that it had made the lodgement about six days later "in or around the 20th or 21st of May". This was communicated verbally.

The BTSB informed the Department of Health of its decision to admit liability around September 17th, 1996, three days before the board made this admission to Mrs McCole.

This was confirmed in writing to the Department on September 23rd, three days following the letter to Mrs McCole.

The report questioned why the BTSB contacted the Compensation Tribunal directly to set up an emergency hearing date for Mrs McCole after they admitted liability. The admission of liability was contained in a letter which also warned that Mrs McCole could be liable for costs if she went for aggravated damages.

"It is clear from the documents," the report says, "that consideration was given by the BTSB to facilitating Mrs McCole if a decision was made by her to go to the tribunal."

On the question of whether the BTSB delayed its admission of liability in order to promote the tribunal Ms Macken said she could "find no document showing actual postponement of the admission of liability on the part of the BTSB."

The report says the State played no role "as such" in the admission of liability. This was made "by the BTSB solely on the advice of its legal advisers."

Counsel to the BTSB advised the board on September 9th, 1996, that aggravated damages should be defended. "Once that decision is accepted, a warning of the consequences of costs, is normally included to protect the party making the offer."