Former Taoiseach Mr Charles Haughey yesterday lost his High Court attempt to gain access to a confidential letter written by the Moriarty tribunal to the Government chief whip.
The contents of the letter were not opened in court but it was stated to have clarified earlier correspondence from the tribunal seeking details of payments of more than £500 made to TDs and senators while they were member of the Oireachtas.
In a reserved judgment yesterday, Mr Justice Geoghegan also rejected an application by Mr Haughey and some of his relatives seeking production of various other documents in the tribunal's possession.
An application by the Haughey side for access to other documents in the possession of the State was adjourned.
The Haugheys want the various documents in preparation for a High Court action where they will seek to stop the Moriarty tribunal looking into their financial affairs.
Lawyers for the Haughey side told Mr Justice Geoghegan that there would probably be an appeal to the Supreme Court in relation to the decision not to order discovery of the documents.
The lawyers are expected to go to the Supreme Court today and the case is to be mentioned in the High Court again this afternoon.
During a brief adjournment yesterday, the judge read in his chambers the confidential letter which is being sought by the Haugheys.
When he returned to court, Mr Justice Geoghegan said there was nothing in the letter which could conceivably support any allegation of any improper agreement between the tribunal and members of the Fianna Fail parliamentary party.
The High Court proceedings have been taken by Mr Haughey; his wife, Ms Maureen Haughey; daughter Ms Eimear Mulhern; and sisters Ms Ethna Haughey and Ms Maureen Haughey.
In his judgment on the application for discovery, Mr Justice Geoghegan said the Tribunals of Inquiry (Evidence) Acts permitted the tribunal, where it was appropriate, to conduct its proceedings in private.
Mr Justice Moriarty, as sole member of the tribunal, had exercised his discretion under the Act and had been conducting the investigative aspect of the tribunal in private.
The documents sought to be discovered were those which were issued in the context of the private investigatory phase of the tribunal's proceedings.
Although the sole member had been given many of the powers of a High Court judge, and although independently of the statutory powers, he must act judicially and constitutionally. Therefore, there would be the usual obligations of fair procedures involving compliance with the rules of natural and constitutional justice and the constitutional obligation to vindicate the good name of Mr Haughey.
However, the functions of the sole member of the tribunal had to be carried out differently than if he was sitting as an ordinary High Court judge.
If he was simply sitting as a judge of the High Court in the High Court, he would have played no part in the evidence-gathering aspect of the case. The gathering of the evidence would have been done by the parties themselves. That was the essential feature of the adversarial system of justice.
The sole member had to adopt an inquisitorial role and , indeed, more than that, Mr Justice Geoghegan said.
Mr Justice Moriarty had to gather up all the evidence himself with the assistance of his team of legal advisers.
Mr Justice Geoghegan said it was obvious that confidentiality had to play an important part in the preliminary evidence-gathering process. It was prima facie in the public interest that confidentiality should be honoured.
It went without saying that information obtained during such confidential investigations could not be relied on for the purposes of the findings of the tribunal without such evidence being available to any party who could be damaged by any finding arising out of it.
This would involve the conferring of all the normal rights of calling evidence in rebuttal and cross-examination of the relevant witnesses.
However, the plaintiffs were not now seeking this documentation for the purposes of being represented at the tribunal but rather for the purposes of the action questioning the validity and conduct of the tribunal.