IF the Bord na Mona saga does end up in court, then Eddie O'Connor's case will centre on whether the legal principles of natural justice have been applied in the way he has been dealt with by the company board and the Government. The only other solution would now appear to be a negotiated settlement, under which Dr O'Connor will leave Bord na Mona on agreed terms. It is not clear how the further investigation ordered by the Government could open up another route.
The legal avenue down which Dr O'Connor has said he will travel is to seek a judicial review of the Government's decision to suspend him. If he takes this course of action his main argument to the court will be that natural justice has not applied in the way he has been dealt with by the board and the Government.
In seeking a judicial review, Dr O'Connor's lawyers would first seek the leave of the High Court to apply for judicial review. To obtain such permission he must firstly establish a prima facie case - to do so he must persuade the judge that there is a case to answer. The case would then be listed for hearing some weeks hence; with the long court vacation due at the end of the month any litigation could thus drag on well into the autumn.
Dr O'Connor could seek one of two remedies from the court. An order of mandamus would direct the person in authority - in this case the Minister or the Government - to take a particular course of action. Legal sources believe Dr O'Connor would be more likely to seek an order of certiorari. Under this procedure the applicant would seek to persuade the court that the decision-maker was acting outside the limits of his authority. To ascertain this the court would examine how the decision to suspend Dr O'Connor was arrived at. Such inquiry would include examining the deliberations of the company board.
Central to the any such court action is the issue of natural justice. Dr O'Connor's lawyers can point out that there is no provision in the company's originating legislation to suspend him and that the only grounds for dismissal are incompetence or misconduct. They may also argue that while the Government moved to suspend rather than dismiss the chief executive, this move could also influence the public perception of the managing director.
The managing director's case will be that fair procedures were not followed. Dr O'Connor has listed 37 leaks to the media of information damaging to him and alleged a deliberate attempt to undermine him and ruin his reputation. Dr O'Connor has argued that the board was put under intolerable pressure by the Government in its deliberations.
The board finally concluded that Government pay guidelines were breached. However guidelines are not binding in law and the managing director has argued that he was operating under a valid contract with the former chairman of Bord na Mona, Brendan Halligan. Mr Halligan supported this contention in his presentation to the board. He was mandated by the board to conclude a confidential deal with the managing director, he said. In a written agreement Mr Halligan agreed with Dr O'Connor items such as the managing director's use of a company car, membership of a social club, VHI payments, four overseas trips a year accompanied by his wife and an insurance bond. Later, in 1992, Mr Halligan agreed a public affairs budget of Pounds 15,000 a year with Mr Halligan "to pay for expenses incurred by him in conducting a public affairs campaign" to influence the business community and policymakers. These payments were claimed in the form of unvouched expenses. On this basis Dr O'Connor argues that he had a valid agreement with Mr Halligan for all aspects of his package.
If the issue is to avoid court, then a settlement package will have to be reached. There would be two aspects to such a package. A financial deal would have to be struck involving the payment of the rest of Dr O'Connor's contract, a pension and other items. However it might be just as difficult to agree the terms in which Dr O'Connor's departure would be announced, a matter of considerable importance to Dr O'Connor.
