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JOINT COMMITTEE ON COMMUNICATIONS, MARINE AND NATURAL RESOURCES debate -
Wednesday, 4 Apr 2007

Valentia Marine Limited: Discussion with Mr. Pat Curtin.

Members will recall that following consideration of correspondence from Mr. Pat Curtin, the joint committee asked him to address it on 15 November 2006. On 7 February the committee discussed the matter with the Secretary General of the Department, which prompted Mr. Curtin to write and advise the committee of some inaccuracies. The committee agreed that Mr. Curtin should address it to allow him to correct the record from his point of view. We have considered Mr. Curtin's letter and decided upon a course of action. However, for the record, I ask him to tell us what he believes was wrong with the presentation the Secretary General gave to the committee. What Mr. Curtin says will be on the public record and will be sent to the Secretary General for his comments. Mr. Curtin will have only a short period of time — ten or 15 minutes maximum — to get his message across.

Mr. Pat Curtin

I thank the Chairman and members of the committee for this further opportunity to address them. Today I wish to place on record some important and significant facts, particularly regarding the aforementioned address by the Secretary General of the Department of Communications, Marine and Natural Resources, Mr. Tuohy, to the committee on 7 February. I fully appreciate the difficult position in which Mr. Tuohy finds himself as he could not possibly be fully familiar with some of the key details and facts relating to my case. He has inherited the problem. All the facts, corrections and details that I wish to place on the record are fully supported by official documentation. Unusually I will begin in the middle of the situation and read an extract from a letter from the Secretary General at the time of my application in 1992-93. In my view, this letter states what I have always claimed, that the Department made serious mistakes in funding my project and to the present day it has not honoured its obligations. This also shows——

The committee is at a total disadvantage. Mr. Curtin has produced a document, of which the committee has not had sight. I would prefer him to go back to the transcript of what Mr. Tuohy said to the committee and tell us whether any of his evidence to the committee was not factually correct. Mr. Curtin must appreciate that this is a parliamentary committee and we must be in possession of any documents discussed in the event that any member might have questions to ask about them.

Mr. Curtin

I submitted a copy of this letter at my last attendance.

Is Mr. Curtin referring back to the time he last appeared before the committee?

Mr. Curtin

That is right.

Mr. Curtin wrote to the committee and stated that part of the evidence of the Secretary General was not factually correct. I ask him to tell the committee what was not factually correct so that we can put it into the record and send it to the Secretary General.

Mr. Curtin

I apologise.

It is just that I have a procedure to follow and this is not a court of law.

Mr. Curtin

I wrote to the committee regarding Mr. Tuohy's claim that he was absolutely bound by a confidentiality clause which was attached to the terms of settlement. My point was that these terms of settlement were as a result of an out of court settlement and not a court settlement. In so far that it was an out of court settlement initiated by the Department and entered into by me in good faith, I wish to place on the record that the court did not make any decision regarding my project or my application to Europe. The court made no decision on anything; there was an out of court settlement which was agreed by the parties and filed with the court, and the case was struck out.

The terms of settlement were proven to be unimplementable by the Commission in a letter to the Department on 4 November 1998 in which the Commission advised the Department that, arising out of the examination of the papers previously forwarded on foot of the terms of settlement, the project, as presented, was not in conformity with the regulation and, therefore, it could not accept the project as presented. Furthermore, as regards the out of court settlement — I emphasise the out of court terms of settlement because this is very important — the court made no decision whatsoever. The terms of settlement agreed on that day made no provision for the resubmission of any other type of project, revised or otherwise. This has also become a major issue in Mr. Tuohy's evidence. There could not have been a revised project. There was no provision contained within the terms of settlement, therefore, in my view, it is incorrect and inaccurate to state that there was or could have been a revised project.

Mr. Tuohy referred to confidentiality. Was there a confidentiality clause in the out of court agreement?

Mr. Curtin

I prefer to leave it at that, Chairman. When the Commission wrote to the Department on 4 November 1998 and advised the Department that the application as presented did not comply with the regulations, this was the basis for the terms of settlement and therefore on that day, the terms of settlement and everything that was in it, including the confidentiality clause, became nullified and neutralised and they were dead in the water — if I may be excused for the pun from a boating perspective. As a result, there was nothing we could do except try to pursue the Department to honour its obligations. Mr. Tuohy referred in his evidence to "a unique scheme". The unique scheme to which he referred was the vehicle by which a project such as mine could or would have been transmitted to Europe. I wish to be clear. There was no unique scheme. If there was to be one, it would have to be a national scheme for private port developments, approved for Ireland by the European Commission. Regrettably for me and for my project, the Department failed over this 15-year period to provide such a vehicle and such a scheme.

The Department's reluctance to put such a scheme in place has denied me and others access to this type of European funding. For my project to be successful, it required the existence of an EU-approved national scheme for private port developments in Ireland. The fact is openly admitted in numerous correspondence and internal memos. The Department blatantly refuses to accept its responsibilities and obligations regarding these matters. The Department had continued to be in denial for almost 15 years.

I will summarise the principal items I wish to place on the record. There was no court settlement; the court did not deal with any of the issues. The out of court settlement provided for options. I took a particular option which was to forward the modified project with its revised financial characteristics to Europe. This was the original project with the revised financial provisions. When it was received in Europe, information was requested from the Department about the scheme under which this project was approved. The answer from the Department to the Commission, which is shown in the internal memos is that it did not have any scheme or mechanisms by which it could fund projects such as mine. The terms of settlement, therefore, failed. They failed me because the Department could not honour the commitments it gave in the Commission decision and in the out of court terms of settlement. This can be backed up by official documentation.

Will Mr. Curtin submit this documentation?

Mr. Curtin

I did not realise I could do so.

This is the out of court settlement and this is the confidentiality clause referred to by the Secretary General.

Mr. Curtin

Yes.

It would be helpful to the committee to include it with the documentation.

Mr. Curtin

I brought only one copy because I did not have the facility to make more copies.

I ask Mr. Curtin to respond. We read the Ombudsman's letter into the record of the proceedings and Mr. Curtin responded to some of the detail and referred to some inaccuracies.

Mr. Curtin

I do not have a copy in front of me but I know it from memory.

I ask Mr. Curtin to tell the committee for the sake of completeness.

Mr. Curtin

I refer to paragraph 3 of the Ombudsman's letter which stated: "Most recently I issued a lengthy letter to Mr. Curtin on 6 September 2006 and my office received a response from Mr. Curtin on 22 September 2006". In the interests of detail and clarity of fact, I wish to inform the committee that I responded to the Ombudsman's letter of 6 September 2006 on 19 September 2006. I have attached a copy of my acknowledgement to that letter. It was incorrect to state that I had not responded before 20 September 2006. There was not a three-month delay.

This document will be attached to our report. Has Mr. Curtin any further comment?

Mr. Curtin

I thank the Chairman, the members of the committee and the secretariat for being so courteous and helpful to me because this has been a new experience for me. I appreciate the opportunity to state my case to the committee.

We are only interested in the truth coming out and justice being served.

One issue needs to be clarified as a result of Mr. Tuohy's evidence and that is whether the State had the regulations in place to proceed with this project to which it had signed up. I refer to Mr. Tuohy's evidence because it could go to the "Yes, Minister" authors. Let us consider Mr. Tuohy's replies to my cross-examination. I asked whether the Department had the proper funding mechanisms in place and whether it had its act together when proceeding with this project? The importance of this question is borne out in a letter from the Commissioner in 2004 which states the application was submitted but that the national authority subsequently failed to ensure that national aid was awarded to the project before forwarding the application to the Commission. This is a crucial issue.

When I asked Mr. Tuohy whether the Department had the proper funding mechanisms in place, he replied:

General procedures were in place but the specific scheme that was submitted was sui generis. It was a one-off scheme.

I asked again whether the Department had the correct procedures in place to ensure funding would be approved by the State in advance of its being approved by the Commission and Mr. Tuohy said: "There were no applications other than this". I asked whether there were no regulations in place to manage the project and he asked, "At that time?" I said "Yes" and he repeated: "This was a one-off scheme". That is not an answer to the question.

As I tried to tease out the matter, Mr. Tuohy stated:

The dispute centres on the belief that the Department sought approval in principle on the assumption that there would be elements of private sector, member state and EU Community funding. This issue formed the basis of the High Court settlement.

Does Mr. Curtin believe this was the central basis of the High Court settlement?

Mr. Curtin

There was no High Court settlement and I therefore wish to nail this matter directly. There was no High Court decision and the issues were not heard or discussed by the court. The statement made by Mr. Tuohy is therefore inaccurate and incorrect.

Were the issues the basis of background discussions out of court?

Mr. Curtin

No, they were not.

What would have been the basis of the court case had it occurred?

Mr. Curtin

The basis of the legal proceedings we were issuing was to ask the Department to honour its obligations and commitments as per the application and the Commission decision on the approval of our project. We were unable to get the Department to honour them.

With regard to a central question on the funding, I need to return to the original document signed by Michael J. Daly on behalf of the Department of the Marine in 1992.

To what document is the Deputy referring?

I am reading a copy of the application transmitted by the member state to the European Commission for the project in question. Just above Mr. Daly's signature on behalf of the Department of the Marine, it is stated that the project is fully supported by the Department of the Marine and that the public authority or body responsible for forwarding supporting documents is the Department of the Marine. A note at the bottom of the document, in small print, refers to the justification of the needs and benefits of the investment and to the indication of the importance and priority the member state gives to this investment. One can only conclude from this that the Department was fully supporting the scheme and had worked out the justification of the needs and benefits of the investment.

Further correspondence from the Department after 1998, when it became apparent it did not have the procedures in place to proceed, states it had not agreed to the project but that its agreement was just in principle and subject to funding from central government being sorted out. This seems to be the central problem.

Mr. Curtin

Again, this is addressed in much correspondence and official documentation. The Department confirmed on numerous occasions that it was the main sponsor of the project and would continue to be so with the authorities in Brussels. It did so on a number of occasions when it was trying to get BIM and IDA Ireland to come on board to part fund the project, although it did not have the necessary mechanism by which to do so. Numerous letters and internal memos set out that while the Department claims it submitted the project, it was leaving the enabling of the national funding for another day. Regrettably, the conditions that pertained to the regulation were such that it was a prerequisite that national aid be approved prior to any application being submitted to Europe.

Let us consider another matter that arises from Mr. Tuohy's evidence. I asked him why the Department did not wish to proceed with the project in 1998 given that it had entered into an agreement with Mr. Curtin outside court such that the project could proceed and that it would actually give the £135,000 as its contribution, and he replied:

There was a specific condition from the Commission that an independent consultant's report should be made available to it and this is when the discussion started. Coopers & Lybrand did a report. Ernst & Young did a report. O'Hare & Associates did a report. All three were critical of the viability of the project. BDO Simpson Xavier, on behalf of Mr. Curtin, disagreed. The obligation was on Mr. Curtin to prove the viability of the project.

Mr. Tuohy inferred that the European Commission had set a specific condition that an independent consultant's report be made available to it because it was concerned with the viability of the project. Does Mr. Curtin believe this is accurate?

Mr. Curtin

No. With respect to Mr. Tuohy, that statement appears to be confusing the issues that obtained when the original project was submitted and when the modified one was submitted as a result of the out-of-court terms of settlement. When the Department was made aware by the Commission that the project as submitted was not in compliance with the regulations, the Department, in its wisdom, decided it should opt for a revised project. That is the project to which Mr. Tuohy is relating and there is therefore confusion. Within the terms of settlement, there is and was no provision made for the submission of a revised project or any other. This is paramount.

Perhaps Mr. Curtin will let us have the relevant papers.

Mr. Curtin

I will.

I am delighted to address this matter. The Chairman indicated prior to the meeting how he seeks to resolve it. Deputy Eamon Ryan has indicated clearly that clarification is required. This meeting is very important and I thank the Chairman for facilitating it in spite of the workload. The committee members are determined to ensure as much clarity as possible.

Mr. Curtin was unambiguous in his response to Mr. Tuohy's contradiction and it is important that this be stated clearly. Deputy Eamon Ryan has made some very relevant points in this regard and Mr. Curtin clearly stated the facts in respect thereof. I very much welcome this and hope this meeting will put pressure on the Ombudsman to make a determination on this case as quickly as possible in the interest of natural justice. It is long overdue and I hope sincerely it will be made. I have no doubt that the relevant correspondence will be relayed to Mr. Tuohy.

I wish Mr. Curtin well with this case. I have tremendous respect for those who come from a business background. It is extraordinary that it has taken from 1992 until now to arrive at our current position. It indicates that all was not administered correctly by the Department. I hope this matter will be resolved and I wish Mr. Curtin well with his future endeavours.

When hearing Mr. Tuohy's evidence, I stated: "The fundamental problem we are dealing with here is the Department did not have the scheme in place, as required by European regulations, to provide for funding for the project, and that is the malpractice". Mr. Tuohy responded: "I cannot comment on that because that is the issue before the Ombudsman". It is with real concern, certainly on my part as a member of the committee, that we note this issue has been before the Ombudsman for six years, with no progress whatsoever. The committee has a duty to invigilate and support the Department where necessary. We should send it a strong message of concern about this delay and the failure to answer the valid questions presented to the committee.

Over the past five years the role of the Department has been validly investigated several times — for example, the recent investigation by the Committee of Public Accounts into the funding of private marinas was important. That report vindicated the Department by backing up the procedures it had followed. It was a political report. This is not a political issue but deals with the Department's management procedures. I am deeply concerned that the Department is unwilling to face serious questions about the manner in which it has proceeded with this application and dealt subsequently with Mr. Curtin. I am also concerned about the Ombudsman's office.

We are all sympathetic to this situation, particularly because it has been delayed for many years, thereby depriving everyone involved of a satisfactory conclusion.

I agree with Deputies Perry and Eamon Ryan about the present issues. The Ombudsman will not comment on an investigation while it is ongoing because her report should be binding, although I do not know to what extent it will be. We need to be aware that the Committee of Public Accounts has more power than any other and can reach findings that others cannot. We cannot make recommendations in response to several of the questions in the letter because that could jeopardise the committee. If the committee's opinion is at fault and can be found to be so it could have a problem. Other committees have had to go to court in the middle of their sittings. I have not been a member of such a committee and do not wish to be.

Many of the questions would be appropriate parliamentary questions and should be pursued at that level first. Mr. Curtin is entitled to the replies because the legal departments and the Attorney General must be consulted on how the matters are progressed.

Was the out of court settlement recorded or registered in the court?

Mr. Curtin

It was filed in the court.

That is what I thought.

Mr. Curtin

The case was struck out.

The settlement was agreed and stamped by the court.

Mr. Curtin

It was an out of court settlement because the judge made no decision.

I presume the legal representatives on both sides signed up to the settlement.

Mr. Curtin

No, I and a representative of the Department signed the settlement. The settlement was agreed between the parties. It was not an order of the judge or a decision of the court.

No, it does not have to be an order of the judge, but was the out of court settlement lodged in the court?

Mr. Curtin

Of course, yes. It was filed with the court.

It was filed as being deemed to be a resolution of the problem.

Mr. Curtin

It was deemed an out of court term of settlement. The settlement would have been good provided the terms were implemented and those who signed up to it could have honoured their commitments and obligations.

The Department has made the case that there are two issues here, first, what happened prior to that case and, second, a completely different issue after the case. Mr. Curtin seems to say that the settlement was only to continue with the original process. The Department was to contribute a smaller sum of money but it was keeping the process going. For the Department to argue that these are two different events does not stand up.

Mr. Curtin

No, it is not correct. It is exactly as the Deputy says.

Phases 1 and 2.

Mr. Curtin

Yes.

It was just trying to keep this project going all the way through.

Mr. Curtin

There was a hiccup.

The problem common to both sides in the out of court settlement was that the Department did not have procedures in place to comply.

Mr. Curtin

Not at any stage.

Neither before nor after, and that is what crippled it.

Mr. Curtin

Exactly.

We have aired this topic for long enough today. Mr. Curtin is aware that these are the last days of the 29th Dáil and we are heading into the 30th.

We are heading into the sunlight.

No doubt whoever takes over on this committee in the 30th Dáil will regard this as part of the work programme. The secretariat will have it on file.

We will send a copy of the report of today's meeting to the Ombudsman and any other documentation which Mr. Curtin wishes to give to the clerk, and ask her to finalise her report as soon as possible. We will also send the report of today's meeting to the Secretary General of the Department and ask him to answer the questions raised today and hopefully we will receive some answers.

It was agreed that we would express concern that the findings set out in the preliminary Ombudsman's report were on a prima facie basis.

Whatever form of words we used in private will be used. We will not deviate from that because the committee has agreed to it.

I thank Mr. Curtin for appearing before the committee. I did not caution him at the start of the meeting regarding privilege. I draw his attention to the fact that the members of this committee have absolute privilege and that this same privilege does not apply to him or any witnesses appearing before the committee today. I will probably get sacked today for not having cautioned him.

The Chairman could be a witness in proceedings.

I have experience of that as well.

He could be an accessory before, during and after.

We shall suspend for five minutes because we want to meet Mr. Peter O'Neill, the assistant secretary of the Department of Communications, Marine and Natural Resources, regarding the recent report on the health effects of electromagnetic fields. That will be the end of the committee's business today.

Sitting suspended at 3.48 p.m. and resumed at 4.03 p.m.
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