A DECISION on whether Mr Ben Dunne's solicitor should be directed to divulge details of conversations he had with Mr Charles Haughey was deferred yesterday by the tribunal.
The chairman, Mr Justice Brian McCracken, agreed to delay the decision following submissions by counsel for Mr Haughey, Mr Eoin McGonigal SC.
Mr Dunne's solicitor, Mr Noel Smyth, told the tribunal on Friday that he had had five meetings with Mr Haughey since the start of the Buchanan inquiry into the Dunnes payments controversy. He said while he was not acting as Mr Haughey's solicitor, he believed Mr Haughey had spoken to him in confidence.
A statement Mr Smyth made about the conversations, which he had sealed and posted to himself was delivered to the former Taoiseach on Friday evening.
When the tribunal resumed after lunch yesterday, Mr McGonigal said he wished to apply for limited representation on behalf of Mr Haughey to deal with the issue of confidentiality which had arisen on Friday.
Mr Justice McCracken said this was a different kind of limited representation than had been granted to other parties.
Mr McGonigal said he Was not aware of that, but he was seeking representation at this time only in relation to the issue of confidentiality. The chairman said Mr McGonigal was certainly entitled to representation on that issue, but he was also entitled to it on all matters which concerned his client.
Mr McGonigal said he appreciated that, but repeated that at this time he was seeking representation on the confidentiality issue only. His application was for an adjournment of the issue as he was not in a position to deal with it at this time.
A document had been delivered to his client's home on Friday. While it had been possible to make certain inquiries since then, they were not yet complete and would not be for some time. Counsel said he was aware from correspondence with the tribunal that it was continuing certain inquiries, in London and maybe elsewhere.
It was his application that the issue of confidentiality should be determined only at a time when the tribunal's inquiries had been completed and all of the evidence or statements which might affect his client had been given to him.
At that time his client would be in a position to be fully advised on all matters relating to the issue of confidentiality and everything else.
The chairman said it was not just inquiries which were taking place in London this week. Evidence was also being taken and again Mr McGonigal's client was entitled to be represented. He realised it was a "complex enough" legal subject which was being raised, and was aware of a report in that day's Irish Times on a Northern Ireland case on confidentiality.
However, he was a "little doubtful" about giving Mr McGonigal the sort of adjournment he was seeking. "You're almost seeking an indefinite adjournment of something which is very important to the tribunal," he said.
Mr McGonigal said it was not indefinite in this sense: the adjournment would allow the tribunal to complete its inquiries in relation to any aspect of the evidence which it felt might affect his client. He was entitled to have that evidence before he had to make any comment or do anything.
"It seems to me that in advising my client it would be of assistance to him in making any decisions which have to be made that that evidence should be given to him first," he said.
The chairman said Mr Smyth's evidence was part of that evidence.
Mr McGonigal said Mr Smyth's evidence, as given to his client, prior to Mr Smyth's testimony last week, was a statement which did not include any reference to the document which was produced so suddenly last Friday. It was for that very reason that these complex legal issues had been raised.
The chairman said he knew that, but normally in a court action, if objection was made to the admissibility of evidence, that objection was ruled on there and then. There might be a two day adjournment to allow the parties prepare their submissions, but the evidence involved was not taken out of turn.
However, the position at the moment was that the tribunal was going to have to adjourn, the chairman added. Arrangements were being made to take evidence in London this week and possibly next week.
He felt, however, that when the tribunal sat again, Mr McGonigal should deal with the matter. He hoped that by then the tribunal would have a good deal more evidence, but it might not have all the evidence. Mr McGonigal could renew his application then in the light of what information he had.
The chairman added there would be evidence taken from, for instance, Irish banks, when the tribunal sat again. "We'll give you as much notice as possible and I think in the light of what you then know you can perhaps renew your application to postpone Mr Smyth further."
They would leave it that Mr Smyth was nominally the next witness when the tribunal resumed, but subject to Mr McGonigal's right to make further submissions.
Mr Michael Collins SC, for the tribunal, said Mr McGonigal had said his client was entitled to statements in advance. He wished to make it clear that the tribunal had given Mr Haughey all statements which had come before it which were relevant to him.
The chairman said he was not accepting or rejecting Mr McGonigal's argument that all the evidence needed to be given to his client before he could come to a view on the confidentiality issue. It was a matter for another day.