The High Court has ruled that the Tribunal of Inquiry into Certain Planning Matters and Payments could not question Bertie Ahern about statements he made in Dáil Éireann and that he could claim litigation privilege over 150 documents concerning a banking expert retained through his lawyers.
In a judgment delivered on 8 May 2008, Mr Justice Kelly, sitting in the Divisional Court with the President and Mr Justice O’Neill, granted declarations on both issues. He also quashed Tribunal determinations of 30 January and 6 March 2008 that had rejected the privilege claim and required production of the documents.
The Tribunal was examining the nature and sources of lodgements to bank accounts held by Ahern or people associated with him. It wanted to draw his attention, while he gave evidence, to possible inconsistencies between statements he had made outside the Dáil, his evidence to the Tribunal and four Dáil statements from September and October 2006.
The Tribunal accepted that it could not challenge the truth or motivation of statements made in the Dáil. It argued that pointing out inconsistencies would help make the evidence complete. Ahern argued that doing so would indirectly make him answerable for his parliamentary utterances.
Kelly held that drawing attention to such inconsistencies could suggest that the Dáil statements were untrue or misleading, and was prohibited by Article 15.13 of the Constitution. The Tribunal may record or reproduce the statements in its report, but may not suggest they were false, misleading or improperly motivated. The judgment left readers to draw their own conclusions; it did not determine whether the statements were accurate.
The privilege dispute concerned 150 documents relating to Paddy Stronge, a banking expert retained in April 2007 through Ahern’s lawyers to advise on the banking and financial aspects of the Tribunal’s inquiry. Ahern claimed litigation privilege over all 150 and legal advice privilege over 11. The Tribunal rejected both claims, arguing that litigation privilege did not apply to an inquisitorial inquiry and that the documents were created for dealings with the Tribunal rather than anticipated litigation.
Kelly ruled that a person whose conduct was under examination and who had rights under the Supreme Court’s decision in In Re Haughey was, for litigation privilege purposes, in the position of a party to High Court proceedings. He found that the privilege applied to all 150 documents. He also rejected the Tribunal’s argument that Ahern had waived privilege by referring publicly to Stronge’s conclusions. Because litigation privilege resolved the claim, Kelly did not decide the separate legal advice privilege question.
A third issue, concerning disclosure of other material, was not pursued after the Tribunal supplied 65 pages of bank data and figures, a narrative report, and a 50-page computer programming assessment with a report at the opening of the hearing. Ahern’s counsel reviewed the material and sought no relief on that issue.