MR Justice Brian McCracken will announce on Monday afternoon whether he intends using his powers in the tribunal of inquiry to instruct Mr Ben Dunne's solicitor to reveal the contents of confidential conversations he had with the former Taoiseach, Mr Haughey, about £1.3 million in payments he allegedly received from the supermarket millionaire.
At his Kinsealy home late yesterday afternoon, Mr Haughey personally took delivery of the envelope containing Mr Noel Smyth's account of the meetings.
It was delivered from Dublin Castle by a member of the tribunal's legal team, Mr John Lawless, and it was learned that Mr Haughey simply thanked Mr Lawless.
Mr Smyth revealed he had five meetings with Mr Haughey to discuss the inquiries into alleged payments by Mr Dunne to politicians.
The solicitor told the hearing he did not want to reveal the details of the conversations unless directed by the judge.
Mr Justice McCracken deferred his decision on this and in the light of this fresh evidence has given Mr Haughey a further opportunity to consider whether he wishes to be legally represented. "Mr Haughey has until Monday afternoon to indicate his intention.
Mr Smyth clearly surprised the lawyers at the tribunal when he revealed the meetings with Mr Haughey during his evidence to the tribunal yesterday afternoon. He had not referred to these meetings in his statement to the tribunal before he gave evidence yesterday, and Mr Michael Collins SC, for the tribunal, said they had no notice of what Mr Smyth was now saying.
Mr Smyth told the tribunal yesterday the meetings had occurred at Mr Haughey's instigation. He asked me if I was prepared to meet with him as he had some questions that he wished me to answer," Mr Smyth said.
Mr Smyth said he has written a statement containing information that Mr Haughey had given him concerning the inquiries into alleged payments to politicians by Mr Dunne. Mr Haughey had believed he was talking to him on a confidential basis when he gave him this information.
At his meetings with the former Taoiseach, Mr Haughey had imparted information to him as he would to a solicitor, Mr Smyth said, but he agreed that there was no formal solicitor client relationship that would make the conversations privileged and would therefore keep them from the tribunal.
Three of the meetings took place in Mr Haughey's home and two in a neighbour's house to avoid possible media attention, Mr Smyth said. During the meetings Mr Haughey gave Mr Smyth information ... in terms of the Buchanan inquiry and in relation to this particular inquiry."
Counsel for the tribunal, Mr Collins, applied to Mr Justice McCracken for an order directing Mr Smyth to give the details of his conversations with Mr Haughey to the tribunal. There was no privilege in law for things said in confidence in the conventional way, he said.
Judge McCracken decided to defer a decision until Monday to allow Mr Haughey to be represented if he chose.