The behaviour of Charles Haughey added a great deal to the cost of the McCracken tribunal. Because he denied receiving £1.3 million from Ben Dunne, the tribunal team travelled a very expensive route to prove he did get the money. The mesmerisingly detailed evidence proving the money trail took several days to be heard. On October 28th, the tribunal adjourned again to allow Mr Edward Comyn SC, for the public interest, to prepare a submission on whether Mr Haughey should be ordered to pay some of the costs of parties appearing before the tribunal. Yesterday it was confirmed this idea had been abandoned. Last Monday, the Chief State Solicitor, representing the public interest, explained why. In a letter to Mr Justice McCracken, three reasons were given.
Firstly, most of the expense incurred as a result of Mr Haughey's conduct was incurred by the tribunal rather than by persons appearing before it and the law does not allow these costs to be recovered from Mr Haughey.
Section 6 of the Tribunals of Inquiry (Evidence) (Amendment) Act 1979 states: "Where a tribunal or, if the tribunal consists of more than one member, the chairman of the tribunal is of the opinion that, having regard to the findings of the tribunal and all other relevant matters, there are sufficient reasons rendering it equitable to do so, the tribunal or the chairman, as the case may be, may by order direct that the whole or part of the costs of any person appearing before the tribunal by counsel or solicitor, as taxed by a Taxing Master of the High Court, shall be paid to the person by any other person named in the order."
In other words, the tribunal can direct that all or some of the costs of a person appearing before it be paid by another person. There is no provision, however, for the costs incurred by the tribunal itself to be sought from another person. The costs involved in proving Mr Haughey a liar must be borne by the Exchequer.
Secondly, the costs incurred by others - as opposed to by the tribunal - as a result of Mr Haughey's conduct are limited. The public interest identified three days on which sittings were adjourned because of his behaviour. Therefore, the only costs recoverable from Mr Haughey are the costs of persons appearing on those days, a limited sum. Thirdly, an attempt to make Mr Haughey pay these costs might be resisted, therefore necessitating a further costly tribunal sitting. The Chief State Solicitor's letter outlines a central principle to be followed by legal representatives of the public interest in such cases: "The public interest must be guided by the principle that public funds ought not to be used to pursue an issue when it is clear that the outcome will probably involve a loss to public funds." In other words, the principal consideration is one of economics, not of justice.
The Chief State Solicitor appears to be saying it has no role in seeking to punish Mr Haughey financially. Mr Justice McCracken sent papers relating to Mr Haughey's non-co-operation at the tribunal to the DPP last August for him to consider whether Mr Haughey's behaviour warrants a prosecution. A decision is awaited.