NEW evidence will show Sinn Fein deputy leader Mary Lou McDonald was aware of a second statement by the Referendum Commission on Ireland's veto over the European Stability Mechanism in the run-up to the Fiscal Stability Treaty referendum, the High Court heard today.
The Commission is seeking costs against Sinn Fein TD Pearse Doherty after his unsuccessful High Court challenge to comments made by the Commission in the weeks before the treaty referendum.
Counsel for the Commission, Michael Collins SC, told the court a new affidavit would show it was "inconceivable" for Mr Doherty to have remained unaware of a second statement issued by the Commission concerning Irelands' veto over the European Stability Mechanism.
On the eve of the Fiscal Treaty referendum, Mr Doherty lost a High Court challenge aimed at having the Referendum Commission withdraw remarks made by its chairman, which Mr Doherty submitted gave the impression that Ireland could not veto the ESM.
It was argued by counsel for Mr Doherty, Richard Humphreys SC, that the first statement garnered a lot of media attention and gave prominence to
"Yes" arguments over "No" arguments in the campaign.
Mr Humphreys submitted that a second statement issued by the Commission, which suggested that it was still open to Ireland to use a veto with regards to the ESM as Mr Doherty had argued, may have aided the "No" side but had been put under the radar.
Today, Mr Collins applied to introduce an affidavit which stated the Commission's second statement was prominently displayed on its website from the May 18 onwards and that a visitor could easily access the material by clicking on a link.
He said that the affidavit also stated the Commission had been in correspondence with the deputy leader of Sinn Fein, Mary Lou McDonald, regarding the statement on May 17, and that a full text of the statement was sent to her via email the following day.
Mr Collins said he wanted to reiterate "how untrue" it was to suggest that the Commission's second statement was in some sense put under the radar or not given sufficient publicity.
He said he would submit that it would be "inconceivable" for Mr Doherty to remain unaware of the statement given the Commission's correspondence with the deputy leader of his party.
Mr Humphreys said he intended to argue that Mr Doherty did not know anything about this email exchange either now or at the time of the hearing, and that this would seem inconceivable only if one was "naive" about office practices.
Mr Justice Gerard Hogan said that although it was "unusual" for an affidavit to be advanced at such a stage in proceedings, he would rule in favour of the Commission as Mr Collins had been placed under the "quite impossible" burden of having to deal with the highly complex issue under tight time constraints.
He said he would admit the affidavit as it appeared the costs issue was still open and he could therefore still receive the affidavit if it was relevant to the issue at hand.
Mr Justice Hogan said the Commission's proposed argument that Mr Doherty must have known of the second statement because of the correspondence with Ms McDonald "put a new gloss" on matters due to Mr Humphreys "under the radar" statement in the initial High Court proceedings.
Mr Humphreys subsequently submitted that it would be of benefit to the court if another affidavit was filed in response to the affidavit introduced by the Commission.
Mr Justice Hogan said that, in the interests of matters of procedural fairness, he would reserve the costs judgement and adjourn the hearing until June 21.