State should ease ‘financial burden' for people facing heavy legal costs at public inquiries, report finds
National Asset Management Agency
(Nama) commission has said.
The Commission of Investigation into the controversial sale of Project Eagle has called on the Government to change the 'strict' guidelines for covering the legal costs of those who appear before high-profile public inquiries.
It said witnesses who 'diligently' give evidence, submissions and documents can end up in the 'very unfortunate situation' of having to personally pay high legal fees for their participation in the process.
At the moment, the guidelines for legal costs under the Commissions of Investigation Act 2004 says witnesses can recoup some but not all of their legal fees. The current guidelines do not cover instruction fees, brief fees and legal fees incurred while making submissions.
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In the case of the Nama commission, over two-thirds of the legal bills of the so-called 'bad bank' could not be recovered.
It is understood that Nama's total legal costs reached €7.5 million, but it only received €2.4 million of that back from the commission. Thirty-six witnesses on behalf of Nama, including past and present employees, offered evidence and submissions over the seven years of the inquiry. All of these witnesses made claims for the payments of their costs.
After assessing the claims for costs from Nama with the help of the
State Claims Agency
, the commission said it believed the current guidelines on legal costs would 'benefit significantly from review and updating'.
'Engaging with a Commission of Investigation can be an onerous task for private individuals, many of whom understandably seek legal advice and assistance in relation to their interaction with a Commission,' the commission stated in its final report to Taoiseach
Micheál Martin
.
'Witnesses who diligently provide detailed statements, attend to give evidence, provide documents and make submissions may find themselves in the very unfortunate situation of having to discharge significant fees personally due to the strict confines of the guidelines for payment of legal costs.'
The commission, whose sole member is Susan Gilvarry, said Nama had tried to recoup 'substantial legal costs', but the commission wasn't able to consider or direct the recovery of any costs not set out in the current guidelines. It pointed out that the recovery of costs was less important in the case of Nama, where a state agency's costs are 'sought to be recovered from a Government department'.
But it said that these 'discrete set of circumstances' would not apply in every case, so it recommended that the 'guidelines are revised and clarified to reflect the personal financial burden that witnesses or third parties may be subjected to by virtue of being requested to engage with a Commission of Investigation'.
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The Department of the Taoiseach did not respond to requests for comment.
The report from the Nama commission said that its final costs, from the point it was established in June 2017 to April 2025, were €10.3 million. This included €4.6 million in legal fees, a salary cost of €1.75 million and administrative costs of €1.4 million.
Since the late 1990s, the State has spent more than €600 million on tribunals of inquiry and commissions of investigation, including the €143 million Mahon/Flood Tribunal, the €85 million Commission to inquire into Child Abuse and the €83 million Moriarty Tribunal.
In April, the billionaire businessman Denis O'Brien was awarded €5.8 million by the State Claims Agency for the legal costs he faced while a witness for the Moriarty Tribunal between 2001 and 2010.
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