There is no doubt in any quarter that when Dr James Kirrane sought legal representation at the hepatitis C tribunal of inquiry he should have received it.
The fact that the consultant pathologist was criticised in Mr Justice Finlay's report without the benefit of legal representation to defend himself was described by one legal source yesterday as 'a classic breach of natural justice'.
A family member told The Irish Times that Dr Kirrane was very pleased at the outcome of the case 'and the vindication of his good name and professional reputation'.
Dr Kirrane initiated legal proceedings last June. He was given leave to seek an order, by way of judicial review, quashing the parts of the Finlay report referring to him. Before the publication of the Finlay report he felt there had never been any previous suggestion that his reputation had been at issue or that allegations had been made against him.
This issue was clear-cut. However, beyond that, matters become murky. Technical legal issues are involved. Positive Action, the powerful group representing women infected with hepatitis C, is annoyed with the outcome. It watched this case closely, but still thinks there was sleight of hand, a Government playing politics, attempting to distance itself from the legal action.
Positive Action has always accepted an individual's right to take an action through the courts and the independence of the courts in dealing with the issue. A few weeks ago the group considered having its own legal representation in court. The State side was agreeable to this. However, it was not felt necessary after private assurances were received from Government officials.
The defendants in the case were Mr Justice Finlay, Ireland and the Attorney General. Until last week the three had been represented in court by Mr Frank Clarke SC. One statement of opposition was filed by the defendants in early February. It referred in most cases separately to the defendants, but in one or two instances collectively.
However, in Monday's court sitting the State held the position that Mr Justice Finlay, while appointed by the State, was acting independently in terms of the tribunal report. The State argued that it was not appropriate for such claims to be made against it.
By then Mr Clarke, representing only the State, spoke of 'important separation-of-power issues involved'. Mr Justice Finlay had a new legal team who said he did not oppose a number of the orders sought by Dr Kirrane.
During the case Mr Clarke said the State accepted it had a role in publication of the correction, but only as a 'communicator', given that it had been involved in publication and distribution of the original report. It argued the text of the publication was a matter between Dr Kirrane and Mr Justice Finlay.
Dr Kirrane had also sought a declaration of innocence, that he was in no way responsible for the contamination of blood products. However, this point was not conceded. On Monday Dr Kirrane's counsel said he had dropped a claim for damages, in the light of the attitude taken by the other side. He was reported to have originally been seeking £100,000.
The appointment of the separate legal team for Mr Justice Finlay was revealed in a letter sent last week by the Chief State Solicitor's Office to Positive Action. It also stated that the 'tribunal/Justice Finlay are not attempting to do anything to excise or quash part of the report of the tribunal. It is the High Court that will make whatever orders are appropriate. All that the judge has done is lodge a notice of opposition setting out his and the other parties' position in relation to Dr Kirrane's claim.'
However, sources close to the group take a different view. They believe the role of the State, rather than distancing itself from proceedings, was to 'protect the Finlay tribunal report' and public interest, which includes the interest of infected women and their families. They believe the State could have taken a far more active role. They understood that the reconvening of the tribunal was being actively considered.
Dr Kirrane believed that because of his limited involvement with the BTSB he was attending the tribunal as a witness. He felt there was never any suggestion that allegations might be made against him or that the tribunal would criticise him. He had applied for limited legal representation and in response was told that nobody was making allegations of any description against him.
At one stage, after he gave evidence, his solicitor wrote requesting copies of transcripts and copies of the statements given by the BTSB to the tribunal. In response he was told that these were available at his own expense from the stenographer and that statements by BTSB witness were not given as a matter of course to other witnesses.
He was also told at that time that none of the other statements contained allegations against him. Dr Kirrane also pointed out that he was unable to challenge the evidence of other witnesses, whose evidence may have contributed to the findings against him. Following publication of the report he was contacted by the Medical Council seeking clarification of his role in the contamination scandal.
Positive Action is still pushing for the reconvening of the tribunal, believing it would only take a few days to address Dr Kirrane's role, giving him full legal representation. But it appears, in the letter sent last week from the State Solicitor's Office to Positive Action, that Judge Finlay considers the tribunal to be closed.
It stated: 'As far as the judge is concerned the tribunal, since the completion of its report, is functus officio, and therefore the course of action proposed in your letter is not open to the first named respondent'. Legal sources also point out that the High Court is superior to a tribunal of inquiry. Reconvening the tribunal before the orders were granted by the High Court to Dr Kirrane, they say, would have been entirely pre-emptive.
The issue of reconvening the tribunal they describe as 'very difficult law' and compare it to the current difficulties with the attempts to extend the terms of reference of the Flood tribunal. The setting up of a new tribunal was suggested by some as more realistic than the reconvening of the old tribunal.