High Court hears Ahern challenge to tribunal inquiries

A THREE-JUDGE High Court has begun hearing the challenge by Taoiseach Bertie Ahern to the conduct by the Mahon Tribunal of its inquiries into certain banking transactions conducted through Mr Ahern’s account in 1993 and 1994.

However, a number of concessions made by the tribunal since the case was initiated and disclosed to the court yesterday are expected to have a considerable impact on the scope of the action.

The concessions include the tribunal’s acceptance, contrary to an earlier position, that the Constitution prohibits it from questioning Mr Ahern about the veracity of statements made by him in the Dáil about his financial affairs. The tribunal also yesterday agreed to hand over to Mr Ahern information sought by him about the basis for its conclusions about the nature of lodgments to separate bank accounts of Mr Ahern and his former partner Celia Larkin.

However, a central issue in the case remains. This relates to Mr Ahern’s claim of privilege over some 150 documents (the Stronge documents) relating to advice to his lawyers from a banking expert retained on his behalf, Paddy Stronge, a financial consultant and former chief operating officer of Bank of Ireland Corporate Banking. Mr Ahern is challenging a tribunal order requiring him to hand over the documents.

The judicial review proceedings by Mr Ahern were initiated last February and opened before the President of the High Court, Mr Justice Richard Johnson, Mr Justice Peter Kelly and Mr Justice Iarfhlaith O’Neill yesterday and are expected to last a number of days. Mr Ahern did not attend the hearing in a courtroom packed with lawyers and journalists.

The proceedings centre on three main issues — the first is whether constitutional privilege applies to statements by Mr Ahern in the Dáil in September and October 2006 about his financial affairs following publication of an Irish Times article of September 21, 2006, about payments to him when he was minister for finance.

This issue arises in the context of Mr Ahern’s disputing the tribunal’s claim it is entitled to cross-examine him about those statements in the context of other similar statements made by him outside the Dáil about his financial affairs. Mr Ahern claims article 15.13 of the Constitution provides that no member of the House may be cross examined on what is said in Dáil Eireann.

The second issue relates to whether legal advice privilege (LAP) and/or litigation privilege (LP) applies to documents and expert reports procured by witnesses appearing before a tribunal. This arises in the context of Mr Ahern’s claim of privilege over the Stronge documents.

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

Mr Ahern has been given spreadsheets in relation to these hypotheses but has sought all of the information on the basis of which the tribunal had arrived at its calculations.

Given the tribunal’s decision to give Mr Ahern certain of the information sought in relation to the analysis of the banking transactions, Brian Murray SC, for Mr Ahern, said yesterday his side wanted to review the information to be provided and this could lead to a reduction in the scope of this third issue.

His side also wished to consider the tribunal’s new position on the issue of parliamentary privilege, counsel added.