A legal challenge to the Government's allowing Shannon airport to be used by US aircraft engaged in the war in Iraq will proceed at the High Court tomorrow.
However, the case is expected to run to the end of the present law term, April 11th, with judgment likely to be reserved.
A decision on the action by Mr Edward Horgan, a retired Army officer, may not be given before April 28th, when the next law term opens.
In his case, Mr Horgan is to call a military witness who will testify that the permitting of overflights and refuelling by the US military at Shannon constitutes participation by Ireland in war.
His lawyers will also cross-examine Mr Keith McBean, a counsellor in the Department of Foreign Affairs, about his assertion to the contrary and his claim that the activities at Shannon are a continuation of what has been going on there for some 50 years.
Mr John Rogers SC, for Mr Horgan, Newtown, Castletroy, Limerick, said issues about the nature of previous arrangements at Shannon would inevitably arise in the context of what this State understood its international obligations to be prior to the war in Iraq.
It would be his case that there was a duty on a neutral State, under international law, not to permit the movement of troops and munitions on its territory, Mr Rogers said.
Mr Paul Gallagher SC, for the State, said he was concerned to learn yesterday for the first time that a military expert was to give evidence. However, his side had done everything possible to ensure an early hearing and he asked that the matter proceed as listed.
Mr Donal O'Donnell SC, for the Government, agreed and said the case was expanding rather than constricting.
The President of the High Court, Mr Justice Finnegan, also expressed concern that the issues in the case appeared to be expanding. He had understood the case to be concerned about the legality or otherwise of the situation at Shannon once the war started. He could not see the relevance of the history of the previous 50 years when there was no war. It seemed to him there was a way of proving international law which did not involve comparing the practice of this State over the past 50 years with that of other states.
However, the judge said, he would direct the action to proceed as scheduled. He warned that if it did not finish by the end of term, he could not disrupt every other court list to accommodate it.
The action will be heard by Mr Justice Kearns and is proceeding following the resolution yesterday of issues relating to the production of documents.
Mr Horgan had sought a range of documents relating to what the Government alleges is a long-standing arrangement for overflights and landings of US military aircraft and a copy of the Government's decision of March 19th last to allow Shannon to be used by US aircraft engaged in the war in Iraq.
The State and Government had argued much of the documents sought were irrelevant and not necessary for the action.
Yesterday, Mr Gallagher said the State was maintaining its position that Mr Horgan was not entitled to discovery. However, without prejudice to that, it would give Mr Horgan the Government's minute recording the decision to put before the Dáil a resolution permitting the use of Shannon by US aircraft bound for Iraq.
Mr Gallagher said his side would also hand over documents indicative of the previous arrangements for overflights and refuelling at Shannon.
This was acceptable to Mr Horgan so discovery would not be an issue.
