The Government is now seriously concerned that any attempt by the planning corruption tribunal to withhold massive costs claimed by witnesses who obstructed it may fail as a result of yesterday's resignation of Mr Justice Feargus Flood.
The tribunal revealed yesterday that former minister Mr Ray Burke has lodged a claim for €10.5 million in costs and it emerged that bills from developers JMSE and Bovale could be even higher. These are among the witnesses deemed by the tribunal as having "hindered and obstructed" its work and therefore not seen as guaranteed to have their costs paid by the taxpayer.
However legal experts believe that the fact that the judge who heard the original evidence - Mr Justice Flood - will not decide on costs will leave any decision to withhold payment at risk of successful challenge in the courts.
The Government announced yesterday that the Minister for Justice, Mr McDowell, will introduce legislation in October designed to deal with this problem. However a Government spokeswoman conceded that it could not prevent challenges nor could it be guaranteed that the challenges would not be successful.
The Government's preference had been for Mr Justice Flood to adjudicate on costs, she said, although the Attorney General, Mr Rory Brady, was "confident" the new legislation would resolve the problem.
In a move described by the Taoiseach, Mr Ahern, as "the end of an era", Mr Justice Flood wrote to the Government yesterday announcing his resignation with immediate effect. This will allow the Dáil and Seanad to agree before it rises for the summer next Thursday to appoint ordinary tribunal member Judge Alan Mahon as the new chairman.
Judge Gerald Keys, currently the reserve member, will be appointed a full member joining Judge Mary Faherty on the three-member tribunal. The tribunal will continue doing private work over the summer. Mr Ahern led tribute to Mr Justice Flood for his six years on the planning and corruption tribunal.
"His name will be synonymous with the will and determination of the Dáil, the Seanad and the Irish people to expose and root out malpractice and corruption," he said.
He said the manner in which future modules and allegations would be dealt with was a matter for discussion by the Oireachtas. He pointed out that the Dáil and Seanad could change the tribunal's terms of reference and the Oireachtas "can consider whether this is prudent or desirable" in the light of a letter received this week from the tribunal.
The letter, a response to a Government request for information as to its future, said that hearings relating to the current planning modules were not expected to be completed until the end of 2006. The tribunal should cost €6.4 million a year to run, not including the €21.5 million in costs claims submitted so far or any future costs, it told the Government.
Opposition politicians expressed surprise last night that Mr Justice Flood had resigned from the tribunal entirely, as he had proposed earlier this month that he would resign as chairman while remaining as an ordinary member. It emerged last night that he had decided to resign completely after the Attorney General expressed concern that any future tribunal reports could be challenged if he stayed as an ordinary member.
While the Government would not give the basis for this concern, it is understood to arise from the fact that in his original letter suggesting his preferred course of action, Mr Justice Flood said he found the chairmanship and the prospect of handling the costs issue "onerous and arduous". This raised concern that a future litigant could claim the judge had implicitly questioned his own competence to remain involved in the tribunal at all.
As well as revealing Mr Burke's massive costs bill, the tribunal revealed that star witness Mr James Gogarty is claiming costs of €3.5 million. The total estimated costs submitted so far is €21.5 million, with VAT bringing this to €25 million.
Developers JMSE and Bovale have refused to submit estimates but will be claiming costs which may at least double the bill, bringing it to over €50 million. Other high claimants include builder Mr Tom Brennan of Brennan & McGowan, who has claimed €2.66 million. JMSE executive Mr Gerard Downes is seeking almost €1 million, Fianna Fáil €606,000 and Government Minister Mr Dermot Ahern, €270,000.