The High Court has temporarily blocked the Mahon tribunal from holding public hearings into a £30,000 payment by a Sir Anthony O'Reilly company, Fitzwilton Ltd, to Ray Burke for Fianna Fáil funds.
Mr Justice Barry White granted Fitzwilton leave to seek a judicial review challenging the tribunal's competency to hold public hearings into the matter, which it planned to do from September 28th.
John Gordon SC, for Fitzwilton, successfully applied for a stay restraining the tribunal from holding any public hearing into the payment until the High Court has given its ruling on the Fitzwilton challenge.
Mr Justice White said that if the true position was that the tribunal did not have lawful authority to hold a public hearing, irreparable damage might be done to Fitzwilton Ltd if a stay was not placed on the hearings.
Mr Gordon told the court Fitzwilton had been deeply frustrated for seven years by the tribunal, which had investigated the matter twice and then dropped it. Then out of the blue last July, for its own purposes, it had decided to pick it up again.
Mr Gordon, who appeared with Maurice Collins SC and Bernard Dunleavy for Fitzwilton Ltd, told Mr Justice White: "My clients are in this court because enough, as far as they are concerned, is enough."
Mr Justice White, in granting leave to seek to challenge the tribunal's competency, said the applicants argued that a document of April 28th, 2005, was not in compliance with the Dáil resolution amending the tribunal's terms of reference and that, accordingly, the tribunal did not have lawful authority to consider the particular payment.
Michael Collins SC, who appeared with Mairéad Coughlan for the tribunal, said it had been given only 18 more months to complete its work, and asked that the hearing date of October 10th be brought forward to next week. He said there might well be an appeal to the Supreme Court by either side.
Mr Justice White said he would put the matter in for hearing in the new law term on October 10th.
Mr Gordon told the court that on December 3rd, 2004, the terms of reference of the tribunal had been amended by the Oireachtas which provided that the tribunal "shall . . . by 1st May, 2005 . . . consider and decide upon . . . those matters . . . that shall be proceeding to a public hearing and shall record that decision in writing and shall duly notify all parties affected by that decision . . ."
The tribunal was obliged, between December 3rd, 2004, and May 1st, 2005, to consider whether the matter of the Fitzwilton £30,000 payment would be proceeding to a public hearing, to decide that it would and to record that decision in writing.
Having informed Fitzwilton that public hearings would begin in September, Fitzwilton sought a copy of the record of the tribunal's decision. The tribunal had furnished a copy of this document which revealed it did not record in writing its decision that the Fitzwilton matter "shall be proceeding to a public hearing" and therefore did not comply with the mandatory requirements of the amended terms of reference.
Mr Gordon said the tribunal, in a document apparently created on April 28th, 2005, two days before the deadline set by the Oireachtas resolution, effectively subverted that resolution by drawing up a list which apparently contained an enormous amount of material in which Fitzwilton had featured as one line.
"In the document, the tribunal maintained to itself an ongoing discretion as to what it would do with all of this material, entirely defeating what the Oireachtas required it to do," Mr Gordon said.
He said the tribunal was permitted to proceed to a public hearing in relation to any matter only to the extent authorised by its amended terms of reference.
Having failed to comply with mandatory requirements of the amended terms, the tribunal was not now entitled to proceed to a public hearing in relation to the Fitzwilton payment.