Former Garda commissioner Martin Callinan will not be able to fight the upcoming legal action taken by whistleblower Maurice McCabe if the State decides to settle the case, as is widely expected.
The State has agreed to provide legal representation to Mr Callinan as part of its broader defence to the case. As well as the former commissioner, Mr McCabe is also suing the Attorney General, the Office of the Garda Commissioner and the State over a smear campaign against him by Mr Callinan.
As part of the agreement with Mr Callinan, a single legal team will represent all the defendants. However, it is unlikely the case will ever see the inside of a courtroom. The State is eager to settle the case at an early stage and pay compensation to Mr McCabe.
"I would like to see this case settled and I hope it can be settled to the satisfaction of Maurice McCabe and Lorraine, sooner rather than later," Taoiseach Leo Varadkar said in the Dáil on Tuesday.
Any move to settle the case raises the question of what would happen if Mr Callinan wanted to fight it in court.
Under the terms of the agreement to provide Mr Callinan with representation, his position would be bound to that of the State, informed sources said yesterday.
If the State agrees to settle the case, Mr Callinan will have to go along with this agreement. If he decides to fight the case he will be obliged to fund his own defence.
One legal source compared the situation to one motorist suing another sued over a car crash. “The insurance company takes over the case and nine times out of 10 they settle it. The defendant has no say in the matter unless they want to pay their own costs. Which, of course, no one does.”
Growing backlash
Yesterday, in the face of a growing backlash to the agreement with Mr Callinan, the Taoiseach said the decision to provide him with representation was currently been reviewed.
Garda Commissioner Drew Harris is also understood to be unhappy with the decision to fund Mr Callinan's defence and is seeking legal advice on the matter from Garda lawyers.
The Government has also asked the Attorney General for advice on whether it can pursue Mr Callinan for any compensation it pays out to Mr McCabe as part of a potential settlement.
Under Section 48 of the Garda Síochána Act 2005, it may be open to the State to seek a contribution from Mr Callinan towards both the final legal costs and the settlement.
Section 48 says the State is liable for wrong committed by “a Garda acting in the course of duty”. The Government is seeking advice on whether Mr Callinan’s actions fall within the course of duty.
Fianna Fáil justice spokesman Jim O’Callaghan yesterday called on the Government to pursue the former commissioner for costs.
"Although the State is liable for any wrongs committed by former commissioner Callinan, there is no requirement that the State indemnify his legal costs, let alone any award of damages against him," he told The Irish Times.
He also called for clarity on the deal reached between Mr Callinan and the State.
Despite the public backlash, the agreement to provide Mr Callinan with representation could turn out to be a smart move by the State, several officials suggested yesterday.
In doing so they ensured Mr Callinan could not fight the case and prolong the controversy which has dogged the Government and the Garda for so long.
Last month the disclosures tribunal found Mr Callinan had, along with his press officer David Taylor, engaged in a "campaign of calumny" against Mr McCabe by falsely linking him to allegations of sexual assault.
