Monday 21 October 2019

Shamed former superintendent seeking most of his legal costs from Disclosures Tribunal

Supt Dave Taylor
Supt Dave Taylor
Shane Phelan

Shane Phelan

A former Garda superintendent heavily criticised by the Disclosures Tribunal for smearing whistleblower Maurice McCabe is seeking to have the majority of his legal costs awarded to him by the tribunal.

A lawyer for David Taylor told tribunal chairman Mr Justice Peter Charleton that if a decision was made not to award all of his client’s costs, then a 10pc deduction might be appropriate.

The judge also heard submissions today from lawyers for Supt Taylor’s wife Michelle and the Garda head of human resources John Barrett, both of whom are seeking their costs from the tribunal.

Taylor retired from the force last year in the aftermath of the tribunal findings.

He had been under suspension and was facing a disciplinary inquiry when he retired.

Mr Justice Charleton concluded Taylor helped former commissioner Martin Callinan in "a campaign of calumny" against Mr McCabe, who has also since retired from the force.

The judge said he had the gravest difficulty in accepting Taylor's evidence to the tribunal as anything approximating to the truth.

He also found that when Taylor came under Garda investigation over the unauthorised disclosure of information to journalists, he swore an affidavit that was "almost entirely made up of nothing but lies".

At a costs hearing today, Kathleen Leader SC, for the tribunal, said the default position was that people who appeared before the tribunal were entitled to their costs.

However, the tribunal has discretion on this and it is open to it not to award some or all of the costs.

She said the question the tribunal had to consider was whether a party cooperated. She said whether the party told the truth was also relevant.

At the outset of the hearing, Mr Justice Charleton asked the parties represented in court what percentage reduction in their costs they believed to be appropriate if their costs were to be reduced.

Michael O’Higgins SC, for Taylor, suggested a 10pc reduction.

He said the judge’s decision on the matter “might involve an element of compassion”.

Mr O’Higgins said that while his client had ultimately “been found wanting” by the tribunal, he did cooperate.

He said his client attended hearings, gave the tribunal access to his emails and phone records and made admissions.

Mr O’Higgins said his client had also released journalists from any duty of confidentiality they may have felt towards him.

Mr Justice Charleton is to give his decision on costs at a later date.

In the tribunal’s third interim report, the judge rejected evidence given by Michelle Taylor, who said her husband had told her that any time there was anything negative about Mr McCabe in the media he would text Callinan, who was Garda Commissioner at the time, and then Deputy Commissioner Nóirín O’Sullivan.

Felix McEnroy SC, for Mrs Taylor, said he believed his client was entitled to her full costs.

He said there was one adverse finding against her, but the language used was not in the same category as words like “lie” and “false”.

Mr McEnroy said his client had a very small involvement in the tribunal and was “an incidental player”, the bulk of whose evidence was accepted.

He said a finding that a portion of evidence was rejected was not prima facie evidence of non-cooperation.

A submission was also made by John Rogers SC, on behalf of John Barrett, a civilian who has been suspended from his post as Garda head of human resources since last October. The suspension has been described as a “an internal employment matter” by An Garda Síochána.

At the tribunal, Mr Barrett alleged that prior to the commencement of the O’Higgins Commission hearings, the Garda chief administrative officer, Cyril Dunne, had told him: “We are going after him (Mr McCabe) in the commission.”

This was strenuously denied by Mr Dunne, who said no such conversation took place.

In its report, the tribunal said it was not satisfied this conversation ever took place either at all or in any manner as alleged.

Mr Rogers told Mr Justice Charleton today his client should receive all of his legal costs.

He said there was no finding his client had given deliberately false evidence. The tribunal gave no finding to the effect John Barrett was dishonest.

Mr Rogers said the judge had to engage in a difficult balancing act when deciding on the awarding of costs and that the process should be undertaken with caution.

The barrister said he was concerned by Mr Justice Charleton’s comments at the outset suggesting parties should propose a percentage reduction or revision of costs.

He said that in the absence of a finding of giving deliberately false evidence, this should not arise.

Mr Rogers said there was no finding in the report which could meet the test set down in case law.

“In my submission, no reduction should be made. It would defy the law,” he said.

Submissions were also made today on behalf of three Irish Examiner journalists, Cormac O’Keeffe, Juno McEnroe and Daniel McConnell.

All three declined to answer certain questions at the tribunal, citing journalistic privilege.

The tribunal found they refused to give evidence about the content of their dealings with Taylor. It found this was without justification and frustrated the work of the tribunal.

However, Oisín Quinn SC, for the three journalists, submitted they had cooperated with the tribunal as best they could and were entitled to all of their costs.

Mr Quinn said that if they were to have their costs reduced, such a decision would be contrary to the public interest.

He said they would also be incorrectly put into the same category as someone who did not cooperate or who knowingly gave false evidence.

Mr Justice Charleton also heard a submission by counsel for two gardaí who gave evidence at the tribunal, Inspector Patrick O’Connell and retired garda John Kennedy.

The judge was urged to award both men all of their costs.

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