Banking expert can be questioned on lodgments

THE Mahon Tribunal is entitled to question Taoiseach Bertie Ahern’s banking expert Paddy Stronge about his view that the tribunal has advanced incorrect suggestions about the nature of lodgments to bank accounts of Mr Ahern, counsel for Mr Ahern agreed yesterday.

Mr Stronge had compiled a report which had been given to the tribunal last October and the tribunal was entitled to question him about how he reached his conclusions, Brian Murray SC, for Mr Ahern said.

However, the tribunal was also effectively seeking the solicitor/client file relating to all the involvement of Mr Stronge in the case, including meetings with lawyers attended by Mr Stronge, and the tribunal was not entitled to those documents (the Stronge documents) as they were privileged.

Mr Murray said privilege was being claimed by Mr Ahern over some 150 documents. Of that number, he argued that 139 attract litigation privilege (LP) while the remaining 11 attracted legal advice privilege (LAP). The court could inspect the documents if its wished, counsel added.

Counsel said LAP applies to all legal advice exchanged between a lawyer and client while LP applies to all other communications prepared for the purpose of litigation.

Mr Ahern was making the “very simple point” that he had retained Mr Stronge to assist him in his preparations for the tribunal. If Mr Ahern had instructed an expert in High Court proceedings, there would be no question that the same documents would be privileged.

However, the tribunal was asserting the privilege claimed applied only to adversarial proceedings and therefore did not apply to a tribunal as its function was inquisitorial.

The tribunal was contending LP did not apply to the Stronge documents and that LAP applied only to those documents where a person was requesting legal advice and documents providing such advice.

This was the first occasion any tribunal had claimed that documents generated for the purpose of its proceedings were not privileged and were disclosable and it was simply wrong, counsel said.

He argued the tribunal was wrong on several grounds, including its claim that the 1921 Tribunals of Inquiry Act did not provide for LP for persons appearing before tribunals and that non-adversarial bodies had no adversarial impact.