Minister Cowen's so-called report on behalf of the Government on the legal strategy adopted by the defence in the McCole case is largely a re-hash of political charges made by Mr Cowen before the election.
The Minister's political report is in stark contrast to the careful report of the independent counsel, Fidelma Macken. The Minister posed a number of detailed questions to the independent counsel. She has answered them, but clearly not in a way that satisfies Minister Cowen's desire for a political scapegoat. Some of the answers may not have been to the Minister's liking. For instance, Ms Macken says: "I can find no decision or direction given by the Government on the McCole strategy during the course of the proceedings."
Not satisfied with the independent report, the Minister has proceeded to compose his own political report, comprising of a series of tendentious political charges, some of them at odds with the findings of the independent counsel.
Irish taxpayers want to compensate the McCole family. Minister Cowen, as a lawyer, will know that one of the foreseeable consequences of taking a case to the High Court, rather than going the route of the non-adversarial compensation tribunal, is that the legal costs could be up to forty times as much in a High Court case as in a compensation tribunal case. The costs of four parties has to be paid after a High Court case, whereas only one party's legal costs arise in the tribunal.
While the women affected have the perfect right to ignore the tribunal and go to the court instead, the previous Government was right to encourage them, because it wanted to compensate victims themselves, not run up huge legal costs of no benefit to the women concerned.
Two cases have been before the courts, hundreds before the tribunal. Average tribunal legal costs are about £15,000 per case. Average costs (including all four parties) of the court cases are estimated at over £1 million per case. This is ignored by Minister Cowen in his report.
The Minister should furnish exact figures at once for the court costs of all parties in the recent cases. The public is entitled to know these figures if it is to assess this matter in a balanced way.
Minister Cowen says that the previous Minister should have "called the shots" and directed the BTSB to settle the High Court case, on the basis of the Attorney General's advice on the likely outcome of the court case. He deliberately ignores four points here:
1. He ignores the clear finding of the independent counsel on this aspect and in effect seeks to contradict her conclusion that the Minister could not make such a direction.
2. Such an approach would have undermined the compensation tribunal.
3. The issue in the High Court case was not whether there was liability by the BTSB, but whether aggravated rather than ordinary damages were due. The Government was not advised that aggravated damages were payable by the BTSB and this distinction between aggravated damages and simple is ignored in the Minister's commentary on Cabinet discussions of the matter.
4. The BTSB, like other state bodies, may inform the Minister of what it is doing in legal and other matters, but it is, by statute, independent of the Minister in its legal decision-making.
Minister Cowen's idea that normal legal processes should have been set aside because this was what he describes as "the greatest scandal in the history of the State" shows scant understanding of the proper distinction between politics and law. All should be treated equally before the law, and political value judgments should not be used to influence the way legal cases are conducted before the courts.
Minister's Cowen's approach is one that says, in effect, that political considerations should influence the conduct of court cases. This is a highly questionable principle for any Minister to adopt. It would have far-reaching implications in other cases.
The Minister, as a lawyer himself, knows perfectly well it is normal court practice that, if somebody rejects a formal settlement offer, goes to court, and gets less, they are liable to pay the costs of the case. This sensible procedure exists to encourage people to settle cases. Without it, no contested cases would ever be settled and all would end up in lengthy court hearings, the courts would become clogged up, and justice would be denied to genuine claimants because of legal delays.
It is not, in principle, wrong for a defendant in any case to inform the plaintiff of this well-known legal fact. There is a possibility that politically-motivated hindsight commentators, like Minister Cowen, could easily criticise a defendant for failing to inform a plaintiff of such a well-known legal fact, if they were later to rely on it. This aspect has not been addressed at all by Minister Cowen in his report.
Mr Cowen has engaged in an extensive, retrospective and politically-motivated examination of one aspect of his predecessor's work.