The State is to seek to have the former Taoiseach, Mr Charles Haughey, ordered to bear part of the costs of some of the parties who appeared before the Dunnes Stores (payments to politicians) tribunal, a sitting to hear applications for costs was told yesterday. The order against Mr Haughey is to be sought because of his conduct before the tribunal. Mr Haughey was not represented at yesterday's hearing. The tribunal received word at 10 a.m. from Mr Haughey, who said he would not be represented and was not seeking his costs. The tribunal sat at 10.30 a.m.
Mr Edward Comyn SC, for the public interest, is to inform the tribunal within two weeks of the submission he proposes to make in relation to Mr Haughey. Mr Haughey and any other parties mentioned in the submission will then be informed and the tribunal will sit to consider the matter.
Mr Justice McCracken, at the outset of yesterday's hearing, said the tribunal would not be pursuing its appeal in the Cayman Islands. The report which the tribunal had submitted to the Oireachtas was a final report.
Mr Comyn said he wished to make four points concerning Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979: that a party or person had been given representation before a tribunal did not automatically give a right to costs; a tribunal should only award costs where it was of the opinion that it was equitable and useful to do so; conduct at a tribunal might deprive a party of costs which might otherwise have been awarded; and conduct at a tribunal might attract an order that a person should pay the costs of another represented before the tribunal.
There were four categories who might appear before a tribunal: people who gave considerable and direct assistance which went beyond giving mere evidence; those in a "defensive position" before the tribunal; those merely looking after their own interests; and those entitled to costs but who should be deprived of them by reason of their conduct before the tribunal.
The question arose as to what conduct might oblige a tribunal to withdraw any award of costs.
Mr Comyn submitted "that where the conduct of the person before the tribunal has been such that the evidence or papers or documents put before the tribunal have either concealed the position or lacked candour to the tribunal, then costs should not be awarded".
Evidence given to the tribunal should be the truth and given with candour. However, in the tribunal's report there were remarks about the candour of certain persons.
There were two observations in relation to Mr Michael Lowry. Mr Comyn then read out passages from pages 29 and 25 of the report which concerned, respectively, Mr Lowry's statement to the Dail on December 19th, 1996, and the tribunal not accepting evidence given by Mr Lowry in relation to payments to him and/or Streamline Enterprises.
The chairman said the first of these passages concerned Mr Lowry's lack of candour before the Dail.
There were also comments in the report in relation to Mr Haughey, said Mr Comyn. The chairman said the tribunal had received a communication from Mr Haughey personally "this morning, only at 10 o'clock, saying he (Mr Haughey) would not be seeking his costs and would not be represented here".
Mr Justice McCracken said he was concerned that Mr Haughey was not represented and had no notice of any application being made against him.
If Mr Comyn was going to make a representation that Mr Haughey should bear the costs of other parties then Mr Haughey would have to be put on notice, he said.
Mr Comyn said that, not referring to any particular person, the wording of the section would seem to suggest that a person might be ordered to pay costs to a person who is represented before the tribunal.
Mr Comyn said he had been anticipating full representation at the hearing and the matter could have been dealt with. Mr Justice McCracken said the tribunal had also been expecting there would be representation.
The chairman asked whether, if no such application was made, the tribunal could take it upon itself to order that one party pay some of the costs of another. Mr Comyn said he would go further. The question arose of the conduct of a party leading to increased costs for another party. There was a difficulty if there was no application.
The chairman said it seemed the tribunal could not give itself costs. "It seems to me to be an omission because it seems to me that the greater costs have been incurred by the tribunal."
Mr Comyn said it seemed the chairman could not make any order in relation to costs for the tribunal or the tribunal team.
Counsel said that in relation to Mr Ciaran Haughey there were aspects of his evidence which he thought the chairman felt did not represent the truth of the situation. Mr Justice McCracken said parties who had been the subject of orders of discovery would have those costs paid. He said companies and banks which had given evidence in London would have their costs met as part of the costs of the tribunal. The same was true of costs incurred in the Cayman Islands.
Mr Comyn said he had received instructions that his client was anxious to pursue the matter of Mr Haughey and asked that a date be fixed for a future hearing and notice be given to Mr Haughey. Mr Comyn is instructed by the Attorney General's office.
The tribunal might have the power to make orders in relation to costs where other parties have sought costs and part of those costs were due to the conduct of another party, Mr Comyn said. "I am instructed to pursue that particular point."
The chairman said no other party needed to appear at the next hearing unless requested by the tribunal to do so. He said it would only be fair if Mr Haughey was given a copy of any submission that was going to be made in relation to him.
Mr Comyn agreed and said when the submission was ready he would forward it to the tribunal team. The submission might dictate which other parties should be present at the hearing. He would be in a position to forward the submission within two weeks.
The chairman of the tribunal reserved his judgment in relation to the applications for costs.
