A dispute over discovery of documents relating to the use of Shannon Airport by US military aircraft en route to the war in Iraq has cast doubt on whether a High Court challenge will proceed this week to the Government's permitting such use of the airport.
Among the documents sought by Mr Edward Horgan, a retired Army officer, for his action against the Government and State are documents relating to the alleged long-standing arrangements for overflights and landings of US military aircraft and a copy of the Government decision of March 19th last to allow Shannon to be used by US aircraft engaged in the war in Iraq.
The State and Government have argued that many of the documents sought are irrelevant and not necessary for the action, which is scheduled to begin on Thursday. If Mr Horgan persisted in seeking such documents, that could delay the action, Mr Paul Gallagher SC, for the State, said.
The President of the High Court, Mr Justice Finnegan, said he would read the documents and affidavits filed to date and any reply to those and would rule on the discovery issues this afternoon, unless the parties came to some agreement on discovery in the interim.
In exchanges with counsel yesterday, the judge queried whether all the documents sought by Mr Horgan were necessary for the determination of the action.
Mr John Rogers SC, for Mr Horgan, of Newtown, Castletroy, Co Limerick, said he had just learned yesterday that there was no actual written Government decision of March 19th allowing the use of Shannon Airport by Iraq-bound US aircraft.
His side was disputing the Government's claim that the use of Shannon as complained of is a continuation of a long-standing arrangement over previous decades. It was Mr Horgan's case that the present arrangements for US aircraft using and overflying Shannon was a new arrangement which was illegal and unconstitutional.
Mr Rogers said he was seeking discovery of documents related to policy-based decisions underlying long-standing arrangements for overflights and landings. He suspected such documentation would amount to one or two files.
He also wanted a copy of the Attorney General's advice to the Government that the use of Shannon as complained of did not constitute participation by this State in a war. The Taoiseach had set out the advice in summary form to the Dáil, and in those circumstances the State could not assert the advice was privileged.
Mr Justice Finnegan said he had been concerned the case would get an early hearing and had fixed Thursday for that, but counsel was now casting the net very wide.
Mr Rogers said the issues regarding discovery were very limited and could be reduced to what was the pre-existing arrangements at Shannon, the Government decision permitting the use of the airport by the US military and the nature and extent of that current use.
Mr Paul Gallagher SC, for the State, said Mr Horgan's letter seeking documents was received just last Friday, and the relevance of many of the documents sought escaped his side.
The State had made many express admissions in its defence with a view to obviating unnecessary disputes regarding factual matters and had set out the current position at Shannon in affidavits. Tha nature of previous arrangements at Shannon was not an issue.
The defence had also admitted that the Government did take a decision to allow the use of Shannon by the US, but there was no written document to that effect. A written decision was not necessary to the hearing, counsel said. He also argued that the Attorney General's advice regarding the legality of the use of Shannon was not relevant to the hearing.