Challenge to US use of Shannon may be delayed

A DISPUTE over the discovery of documents relating to the use of Shannon Airport

Among the documents sought by Edward Horgan, a retired Irish Army officer, for his action against the Government and State are documents relating to the alleged long-standing arrangements for overflights and landings of US military aircraft and a copy of the government decision of March 19 last to allow Shannon be used by US aircraft engaged in the war.

The State and Government have argued much of the documents sought are irrelevant and not necessary for the action, which is scheduled to begin on Thursday. If Mr Horgan persisted in seeking such documents, that could delay the action, said Mr Paul Gallagher SC, for the State.

The president of the High Court, Mr Justice Finnegan, said he would read the documents and affidavits filed to date and any reply to those and would rule on the discovery issues tomorrow afternoon (Wed) unless the parties came to some agreement on discovery in the interim. In exchanges with counsel yesterday, the judge queried whether all the documents sought by Mr Horgan were necessary for the determination of the action.

Mr John Rogers SC, for Mr Horgan, of Newtown, Castletroy, Co Limerick, said he had just learned yesterday that there is no actual written government decision of March 19 last allowing the use of Shannon Airport by Iraq-bound US aircraft.

His side was disputing the government’s claim that the use of Shannon as complained of is a continuation of a long-standing arrangement over previous decades. It was Mr Horgan’s case that the present arrangements for US aircraft using and overflying Shannon was a new arrangement which was illegal and unconstitutional.

Mr Rogers said he was seeking discovery of documents related to policy-based decisions underlying long-standing arrangements for overflights and landings.

He also wanted a copy of the attorney general’s advice to the Government that the use of Shannon as complained of did not constitute participation by this State in a war. The Taoiseach had set out the advice in summary form to the Dáil and in those circumstances the State could not assert the advice was privileged.

Mr Justice Finnegan said he had been concerned that the case would get an early hearing and had fixed Thursday for that, but counsel was now casting the net very wide.

Mr Rogers said the issues regarding discovery were limited and could be reduced to what were the pre-existing arrangements at Shannon, the government decision permitting the use of the airport by the US military and the nature and extent of that current use.

Mr Paul Gallagher SC, for the State, said Mr Horgan’s letter seeking documents was received just last Friday and the relevance of many of the documents sought escaped his side.

The defence also admitted the government did decide to allow the use of Shannon by the US, but there was no written document to that effect.