The Flood tribunal has rejected a claim by lawyers for Mr Liam Cosgrave that their case had been damaged "enormously" by the tribunal's non-disclosure of certain bank records.
Mr Michael O'Higgins SC, for the former Fine Gael senator, said they had been sent down "cul-de-sacs and blind alleys" due to tribunal's failure to release records until after their cross-examination of the lobbyist Mr Frank Dunlop had begun. The documents contradicted information which the tribunal had previously released, thereby prejudicing the cross-examination, he said.
Mr Justice Flood admitted the records in question ought to have been circulated a fortnight ago when an issue relating to them was raised by Mr O'Higgins. "The subject matter of the cross-examination may have been prolonged to some degree by this non-disclosure."
But, the chairman said, "this does not amount to prejudice. This is not a criminal trial, and there is no jury, so the question of prejudice does not arise." The records in question showed money had been withdrawn from one of Mr Dunlop's bank accounts on the day before an alleged meeting in November 1992, between the lobbyist and Mr Cosgrave, and the day not after - as originally assumed in cross-examination.
They also contained the copy of a cheque dated September 16th, 1997 for £1,815 (£1,500 plus VAT) from Mr Dunlop to Egan Cosgrave & Assoc, the solicitors' firm in which Mr Cosgrave was a partner.
Mr Justice Flood said the tribunal had withheld such documentation because it believed it was relevant only to the financial module of its inquiries, which would arise later. Once it became relevant to the cross-examination the records were released.
He noted the decision to release the files was made following the production by Mr O'Higgins on Tuesday of a copy of a £2,500 cheque from Mr Dunlop to Mr Cosgrave dated July 2nd, 1997, which had not previously been disclosed by the counsellor to the tribunal.
Mr Justice Flood said the cheque should have been discovered by Mr Cosgrave as far back as last December, if not before. "No party is entitled to conceal evidence for any purpose, including the purpose of using it to confront an unsuspecting witness, irrespective of the perceived value, probative or otherwise, in so doing."
He added the tribunal was "particularly concerned at the failure by Mr Cosgrave to make full discovery" and now required him to furnish an affidavit setting out his reasons for so failing. "The tribunal will, on receipt of the affidavit, consider whether further action is appropriate in respect of Mr Cosgrave's conduct."
Mr O'Higgins described as "very shocking" the ruling, which was one of two made by the tribunal on the issue yesterday. Not only did it fail to deal with aspects of his submission on the issue on Wednesday but it cast a "very serious shadow" over his client. The tribunal should take account of the old phrase "about people in glasshouses", he remarked.
His client had been castigated from a height in circumstances where the tribunal had disclosed to him for the first time yesterday a portion of Mr Dunlop's statement relating to the £1,815 cheque.
Noting that the £2,500 cheque had already been discovered to the tribunal by another party, he added Mr Cosgrave's failure to do likewise had placed no impediment on its investigations.
Resuming his evidence, Mr Dunlop said it had been a matter of some annoyance to him that he had "overlooked" the £2,500 cheque in his statement to the tribunal. The cheque had been produced by Mr O'Higgins to contradict the lobbyist's evidence that he had made a political donation of this sum to Mr Cosgrave, at the time of the Seanad elections in July/August 1997, in the form of £1,000 cash and a £1,500 cheque to Egan Cosgrave & Assoc.
Later, Mr Dunlop rejected a further claim by Mr O'Higgins that the £1,815 cheque may have been to pay for legal services rendered by Egan Cosgrave & Assoc over a land deal in 1995.
The tribunal continues today.
