Flood’s move creates a stir

WHILE nobody should begrudge Mr Justice Feargus Flood the retirement that he finally confirmed yesterday, it is an understatement to say the decision has created a wave of uncertainty about the future of the inquiry that bears his name.

After six years presiding over the longest tribunal in the State’s history, Mr Justice Flood, who turns 75 next month, has more than earned his right to a quiet life. However, the manner and timing of his resignation has created a monumental headache for the Government at a time when the public finances are already coming under unprecedented strain.

With yesterday’s somewhat surprising news of his retirement with immediate effect came the revelation that the various parties who have appeared as witnesses before the tribunal have submitted legal bills totalling 21.5m, including an individual bill of almost 10.5m from the former Fianna Fáil minister, Ray Burke.

These sums come on top of the tribunal’s own legal and administrative costs which have already topped 26m, while it also omits the unspecified legal bills being sought by two central parties in the inquiry, JMSE and Bovale Developments, which are estimated to total another 5m each.

It all means that the final cost of Mr Justice Flood’s landmark interim report published last September, which found that Mr Burke had received several corrupt payments, will fall just short of 60m, excluding VAT.

However, the more immediate concern for the Government is how much of the 60m cost of the tribunal will ultimately be borne by taxpayers.

Mr Justice Flood’s resignation is also bringing tribunals into unchartered territory as long-established legal precedence suggests that parties which are deemed to have obstructed the work of a public inquiry are liable for their own legal costs. Conversely, parties which assist tribunals can generally rely on having their costs met from the public purse.

In normal circumstances, judges who make findings about the subject matter under investigation also issue rulings on how costs should be apportioned. As the sole member of the Tribunal which sat for 313 days to investigate corruption payments to Ray Burke, it was always assumed that Mr Justice Flood would rule on what parties would have their costs paid by the State.

Such a ruling was also awaited with interest to see if he would avail of the legislation which enables tribunal chairmen to make parties which obstructed the investigation liable for the tribunal’s own costs.

Many observers believe that such a power remains the best and only type of punishment for people against whom negative findings are made as it is considered unlikely that anyone will ever face jail arising out of the reports of public inquiries.

Mr Justice Flood was expected to argue that his long-running investigation would have proceeded much quicker if everybody had provided full co-operation from the outset. Instead, the tribunal found itself involved in over a dozen separate challenges to its workings in the Four Courts, while parties also continued to thwart its progress through late filing, delays in correspondence, lack of recollection and blatant lies.

So when Mr Justice Flood recently indicated his desire to stand down as chairman of the tribunal, the Government understandably sought to persuade him to remain on until the thorny issue of costs had been decided.

Now, the Taoiseach accepts that new legislation will be required to enable another judge, presumably Alan Mahon, whom Mr Justice Flood has recommended as his successor, to take on this responsibility.

By Mr Justice Flood’s own admission and one which he used to justify his retirement, such a task will be “particularly onerous, complex and time consuming.”

Despite being deemed to have hindered the investigations, many of the main parties involved in the modules relating to Ray Burke will argue that the State should pay their legal bills.