Taoiseach launches High Court challenge

TAOISEACH Bertie Ahern has taken a High Court challenge to the “manifestly unconstitutional” handling by the Mahon Tribunal to date of inquiries into certain banking transactions conducted through Mr Ahern’s account in 1993 and 1994.

Mr Ahern has also secured a stay on a tribunal order requiring him to produce by 4.30pm yesterday documents concerning advice to his lawyers from a banking expert retained on his behalf, Paddy Stronge, a financial consultant and former chief operating officer for Bank of Ireland Corporate Banking.

Among several complaints, Mr Ahern is disputing the tribunal’s entitlement to cross-examine him about statements made by him in the Dáil about his financial affairs.

He claims those statements are privileged and that the tribunal’s actions to date have breached his constitutional rights to his good name, to fair procedures, legal representation and natural and constitutional justice.

Mr Justice Bryan McMahon yesterday granted leave to Brian Murray SC, for Mr Ahern, to seek a number of orders and declarations in judicial review proceedings against the tribunal.

The judge also granted Mr Murray an interim stay on orders of the tribunal directing Mr Ahern to hand over advice given to Mr Ahern’s lawyers by Mr Stronge.

The stay applies until Thursday when the matter will be mentioned before the court. A date for a full hearing of the proceedings has yet to be fixed.

The judge said he was satisfied Mr Ahern had made out an arguable case — the legal threshold required for the bringing of judicial review proceedings.

Mr Murray had said earlier he was not seeking to interfere with Mr Ahern’s next scheduled appearance before the tribunal on February 21.

The challenge centres on three issues. The first issue is the entitlement of the tribunal to question Mr Ahern about statements made by him in the Dáil about his financial affairs in September and October 2006 following publication of an Irish Times article of September 21, 2006, about payments to him when he was Minister for Finance. He claims such statements attract Dáil privilege and the fact they were repeated outside the chamber does not remove that privilege.

The second aspect of the challenge relates to advice received by him from Mr Stronge, an expert retained by him to assist him in preparing for the tribunal’s examination of him about his financial affairs.

Mr Ahern claims a report prepared by Mr Stronge has already been given to the tribunal but that discussions between Mr Ahern’s lawyers and Mr Stronge and advice from Mr Stronge constitute litigation privilege or privileged legal advice and that the tribunal is not entitled to such material.

The third issue concerns Mr Ahern’s claim that he is entitled to all material relied upon by the tribunal when putting hypotheses to him concerning certain payments into his accounts when he was minister for finance.

The hypotheses, arising from an in-depth analysis of banking transactions and other matters, were presented in an attempt by the tribunal to contradict Mr Ahern’s explanations to the tribunal about the lodgments, counsel said.

Mr Ahern had been given spreadsheets in relation to the hypotheses but wanted to see all of the information on the basis of which the tribunal had arrived at its calculations, counsel said.

Opening the application, Mr Murray said it was “fundamentally wrong” for the tribunal to contend that Mr Ahern could “be cross-examined “on anything said in the Dáil”. While some of the matters contained in Mr Ahern’s statements to the House “may have been repeated elsewhere”, article 15.13 of the constitution provided that no member of the House may be cross-examined on what is said in Dáil Éireann.

The tribunal had also, “for reasons not apparent to me”, made a discovery order for all the documents relating to Mr Stronge, counsel said. It was his case all communications between Mr Ahern’s lawyers and Mr Stronge were privileged and confidential.