The Disclosures Tribunal will give its decision later on whether various witnesses should or should not get their legal costs.
Tribunal chairman, Mr Justice Peter Charleton, who sat in Dublin’s Four Courts today to hear submissions on costs, said he would post his decisions on the tribunal website.
Tribunal counsel, Kathleen Leader, said the principles applying to the costs decision starts with the default assumption that a party should not get costs if they failed to co-operate or knowingly provided false or misleading evidence.
Mr Justice Charleton said he wanted lawyers for the various parties to specifically address points in relation to telling the truth, whether fair procedures have been followed in relation to costs, and whether there should be a percentage reduction in costs depending on circumstances. There was also the question, as it is taxpayers money involved, whether there was any room for compassion and mercy in deciding those costs.
Michael O’Higgins SC, for now-retired garda press officer, Supt Dave Taylor, said despite adverse findings against his client, he should get 90% of his costs because he had co-operated.
The tribunal, in its report, found Mr Taylor and former Garda Commissioner Martin Callinan together conducted a campaign to smear and “repulsively denigrate” now-retired garda whistleblower Maurice McCabe for “being no more than a good citizen and police officer”.
Mr O’Higgins said Mr Taylor’s participation in the tribunal involved a very significant commitment from him and public examination of him in which, it had to be acknowledged, he was significantly found to be wanting.
It must be accepted there are negative findings against him but counsel said there were a number of factors to be considered when taking into account his co-operation.
His client was the only member of the gardaí to acknowledge there was wrongdoing and that there was a campaign to smear then-Sergeant McCabe. It was accepted this was not done out of good duty and was clouded by his own personal agenda which meant there were inevitable consequences to be drawn.
However, there was “significant co-operation” from Mr Taylor who as a key witness readily clarified any issues raised by the chairman of the tribunal.
He had also released journalists who gave evidence from their claim of journalistic privilege involving him. He was always willing to be a witness unlike many journalists who did not come forward, counsel said.
This was a very complex case involving a large volume of documentation which tied up a senior lawyer in the firm representing Mr Taylor, ME Hanahoe Solicitors, counsel also said.
Asked by Mr Justice Charleton how he arrived at the figure that Mr Taylor’s cost entitlements should only be reduced by one-tenth, Mr O’Higgins said while he could not do so forensically, it was a level at which the tribunal could mark its disapproval and at a level to show where he “came up short” which is reasonable and proportionate.
John Rogers SC, for garda human resources director John Barrett, said there was no finding his client gave deliberately false evidence and no statement to the effect that he was dishonest. He was therefore entitled to all his costs, counsel said.
Mr Barrett had claimed at the tribunal he was told by former garda chief administration officer Cyril Dunne “we are going after” Sgt McCabe. Mr Dunne denied the claim.
Mr Rogers said while the tribunal was not satisfied this conversation ever took place, this fell far short of making any finding of having made a false statement. The tribunal, in considering costs, was undertaking a balancing act which should be done with very real caution.
Mr Rogers said he was not going to propose any reduction in costs in the absence of any finding of deliberate falsehood against his client. Compassion and mercy also did not arise in this case.
Felix McEnroy SC, for Mr Taylor’s Michelle, who gave evidence about setting up a meeting between her husband and Sgt McCabe, urged that she should get her full costs in the public interest of ensuring people co-operate. Her testimony was important for the tribunal and for Sgt McCabe in establishing the chain of evidence, he said.
Oisin Quinn SC, for Irish Examiner journalists Daniel McConnell, Juno McEnroe and Cormac O’Keefe, said despite asserting journalistic privilege in circumstances where Supt Taylor had waived his right to be protected, his clients should also get their full costs.
Despite asserting that privilege, they were co-operating and were not in the same category of people who knowingly provided false information. They were entitled to 100% of their costs, counsel said.
Counsel for two gardaí who gave evidence, Inspector Patrick O’Connell and retired Garda John Kennedy, also urged that his clients get all their costs.