THE MAHON tribunal is entitled to question Bertie Ahern's banking expert Paddy Stronge about his view that the tribunal has advanced incorrect suggestions about the nature of lodgements to bank accounts of Mr Ahern, counsel for the Taoiseach agreed yesterday.
Mr Stronge had compiled a report that was given to the tribunal last October and the tribunal was entitled to question him about how he reached his conclusions, Brian Murray SC, for Mr Ahern, said.
However, the tribunal was also in effect seeking the solicitor/ client file relating to all the involvement of Mr Stronge in the case, including meetings with lawyers attended by Mr Stronge, and the tribunal was not entitled to those documents [ the Stronge documents] as they were privileged.
Mr Murray said privilege was being claimed by Mr Ahern over some 150 documents. Of that number, he argued that 139 attracted litigation privilege while the remaining 11 also attracted legal advice privilege. The court could inspect the documents if it wished, counsel added.
Counsel said litigation advice privilege applied to all legal advice exchanged between a lawyer and client, while litigation privilege applied to all other communications prepared for the purpose of litigation. Mr Ahern was making the "very simple point" that he had retained Mr Stronge to assist him in his preparations for the tribunal. If Mr Ahern had instructed an expert in High Court proceedings, there would be no question that the same documents would be privileged.
However, the tribunal was asserting the privilege claimed applied only to adversarial proceedings, and therefore did not apply to a tribunal as its function was inquisitorial.
The tribunal was contending litigation privilege did not apply to the Stronge documents and that litigation advice privilege applied only to those documents where a person was requesting legal advice and documents providing such advice.
This was the first occasion any tribunal had claimed that documents generated for the purpose of its proceedings were not privileged and were disclosable, and it was simply wrong, counsel said.
He argued the tribunal was wrong on several grounds, including its claim that the 1921 Tribunals of Inquiry Act did not provide for litigation privilege for persons appearing before tribunals and that non-adversarial bodies had no adversarial impact.
He argued the tribunal's claim contravened the rights to fair procedures and relating to presentation of cases as articulated by the Supreme Court in the Haughey and Abbeylara cases.
Mr Ahern had made voluntary and extensive discovery of his bank accounts, and in a private and voluntary interview with tribunal counsel in April 2007, hypotheses were put to him for the first time that lodgements to two accounts in 1994 were the result of exchanges of $45,000 and Stg£25,000.
In response, Mr Stronge concluded in a detailed report to the tribunal last October that the tribunal's hypotheses were not well-founded and were not supported by the evidence.
The bank's own procedures would have had to be breached to support the hypotheses and there was no evidence of this, he found.
