The Supreme Court has reserved judgment on a challenge by the Criminal Assets Bureau to a High Court decision that the Flood tribunal may decide whether documents seized by CAB from the former Dublin assistant county manager, Mr George Redmond, are privileged.
The documents are being sought by the tribunal but CAB is claiming investigations and potential criminal proceedings could be jeopardised if they are handed over.
The High Court held the tribunal was correct in stating it had jurisdiction to determine the issue of privilege.
However, the court also directed that the tribunal should reconsider the matter as CAB had not given full evidence to support its claim of privilege at an earlier hearing.
Mr Redmond was arrested by CAB officers at Dublin Airport last February, and subsequently his house was searched and certain material and documents were seized by CAB.
The tribunal requested CAB to furnish copies of all documents seized from Mr Redmond and sent a consent to this action signed by Mr Redmond to CAB. It is those documents over which CAB claims privilege.
In the Supreme Court yesterday Mr Dermot Gleeson SC, for CAB, described the dispute over documents between the tribunal and CAB as a conflict between the legislature and the executive arm of government.
He said that where there was a conflict between two institutions representing different branches of government, and where both had approximately the same status, the courts were required to decide the conflict.
The Oireachtas had given no guidance on the matter of weighing the public interest between two statutory bodies. In this case parliament was saying it would decide that the executive could not assert public interest privilege. Such a dispute was a matter for the courts, said Mr Gleeson.
"We say that when parliament finds itself at loggerheads with the executive, then it is the judges who will decide," he said.
The Chief Justice, Mr Justice Hamilton, said it appeared they had two sets of proceedings - at great expense - concerning the same documents before the courts.
In an affidavit which Mr Redmond had made, he had said he could co-operate in every way with the tribunal. The Chief Justice asked if there was any reason why Mr Redmond could not make the documents available.
Mr Justice Hamilton said Mr Redmond had sworn he was willing to co-operate with the tribunal and he either meant that or he did not.
He asked if Mr Angus Buttanshaw, counsel for Mr Redmond, was in a position to confirm to the court that documents in Mr Redmond's possession would be made available to the tribunal.
Mr Buttanshaw said he was not in a position to do that. His recollection was that Mr Redmond had agreed to co-operate with the tribunal's inquiry into matters which Mr Redmond believed the tribunal was legitimately inquiring into.