Judge Alan Mahon's ruling on Ray Burke's legal costs was not unexpected, writes Carol Coulter, Legal Affairs Correspondent.
It will be difficult for Mr Ray Burke to challenge Judge Alan Mahon's refusal yesterday to grant him his estimated €10 million in legal costs. Judge Mahon spelled out the principles on which he would decide the issue of costs last June. These were based on earlier decisions concerning the issue of tribunal costs. His ruling yesterday, therefore, was not unexpected.
In it, he drew a clear distinction between not co-operating with the tribunal and adverse findings being made against a person by a tribunal. Only the former would lead inevitably to a failure to be awarded costs.
This distinction follows a Supreme Court ruling by Mr Justice McCarthy in relation to the costs of Mr Larry Goodman during the Beef Tribunal. He said that liability to pay costs could not depend on the findings of the tribunal.
Some of the allegations against Mr Goodman were found to be unfounded, but others were upheld. He was found to have been involved in tax evasion and to have abused the export credit insurance scheme. But there was no finding that he did not co-operate with the tribunal.
Mr Justice Liam Hamilton awarded him his costs, which were later taxed by the taxing master at £6.7 million (€8.51 million), an enormous sum almost 10 years ago. This amount was later reduced by the High Court, where Ms Justice Laffoy reduced the lawyers' bill by £1.2 million and threw out costs awarded to a public relations firm and to caterers.
This, and the massive estimate put forward by Mr Burke in his initial claim, will concentrate the minds of the new specialist group on legal costs being proposed by the Minister for Justice, who will bring an aide mémoire on this issue to Government in the next few weeks.
The group will be asked to examine the system in place for deciding on legal costs. Unless there is agreement on costs, they are decided by one of the two taxing masters in the High Court.
The bills put forward by litigants and their solicitors are defended before the taxing master by legal costs accountants.
The taxing master then decides on whether they should be paid in part or in their entirety.
Decisions of the taxing master can be reviewed by the High Court, and a number of high-profile decisions have been reduced in recent years.
Mr Charles Haughey paid his own costs before the McCracken Tribunal into allegations that he had received payments from Mr Ben Dunne and others.
He did not seek them from the tribunal. Had he done so, he would have been unlikely to have been granted them, as he initially denied receiving £1.3 million from Mr Dunne, and it took the tribunal's lawyers many weeks to track this money down.
He clearly did not co-operate with it. However, he was not asked to pay the additional costs incurred by the tribunal itself arising from his denial.
Judge Mahon had already warned those who appeared before the Flood/Mahon Tribunal that among the principles he would consider were: the nature and extent of any non-co-operation or failure to assist the tribunal; the consequences which flowed from such non-co-operation; the conduct of any applicant for costs and the reasons for such conduct.
Under each heading he found reasons why Mr Burke should not be awarded his costs. The nature and extent of his non-co-operation was substantial; this prolonged the work of the tribunal; this conduct was in breach of Mr Burke's legal obligation to co-operate with the tribunal, and his reasons for behaving in such a way were to mislead the tribunal and frustrate its attempts to discover the truth.
He added that had Mr Burke co-operated, he would have been granted at least a part of his costs, despite the finding of corruption against him. This was "in the interests of providing an incentive to individuals to co-operate with tribunals of inquiry such as this one," he said.
It was open to Judge Mahon under the 1997 legislation relating to tribunals to go further, and seek the costs of the prolonging of the tribunal from Mr Burke. He did not do so, and so far there has been a reluctance on the part of tribunal chairpersons to go this extra mile. It would be fraught with legal difficulties, as it would be necessary to prove direct causation between the non-co-operation and additional sitting days.
There is no appeal from Judge Mahon's costs ruling to another court, as tribunals are not involved in the administration of justice, and therefore not subject to appeal to a higher court.
It is open to those who appear before them to seek a judicial review of rulings and decisions (and various people have gone to the High Court to do so) but this requires proving that the decision was unreasonable or contrary to the law. It is difficult to see how this can be argued in this instance.
It would also be theoretically possible to argue that the Mahon Tribunal has no jurisdiction under the Constitution to make such a ruling on costs, but, again, it is difficult to see the basis for such an argument. This tribunal is already subject to a number of challenges to its jurisdiction, but challenges to tribunals' jurisdiction have not fared well in the courts so far.
It remains to be seen what effect this ruling will have. It may deter lawyers from taking on such work, as the indications are they are unlikely to receive anything like full fees.
It is unclear what the enormous figure of €10 million was based on, but Mr Burke's legal team were involved in this matter for five years, and will have incurred considerable costs, even if €10 million is a very generous estimate.
Already, anecdotally, there is less enthusiasm in legal circles for representing people before tribunals than there was. Mr Liam Lawlor and Mr George Redmond have opted to represent themselves, claiming they cannot afford legal representation.
It will also give lawyers an incentive to stress, even more than heretofore, the need for their clients to cooperate fully and frankly with tribunals. That can only be a good thing.