Ruling puts Gogarty back in the box

Counsel for Mr Ray Burke, the Murphy group, Bovale Developments and others are to be allowed to cross-examine Mr James Gogarty when he has completed his evidence, under a ruling delivered by Mr Justice Flood yesterday.

However, Mr Justice Flood said that if any matter is put to Mr Gogarty of which there has been no prior notice, then Mr Gogarty may be given an opportunity to consult with his lawyers.

Mr Justice Flood was ruling on a submission from counsel for the tribunal, Mr Pat Hanratty, that as some parties to the tribunal had not provided narrative statements, they might be intending to ambush Mr Gogarty with material not previously circulated.

Mr Justice Flood also referred to a letter of complaint from solicitors acting for Mr Gogarty, that Mr Michael Bailey of Bovale Developments had not, in his statement to the tribunal, adequately dealt with issues referred to in Mr Gogarty's affidavit.

Mr Gogarty's solicitors had said they would object to their client being cross-examined by counsel for Mr Bailey in these circumstances. Mr Justice Flood said Mr Hanratty had suggested that all parties give their oral evidence before cross-examination of any party, and he noted that this had been supported by Mr Frank Callanan SC for Mr Gogarty.

Mr Justice Flood mentioned "shortcomings in statements" identified by counsel for the tribunal which "related to the statements of evidence furnished by the Murphy parties, Bailey/ Bovale and Ray Burke. "

Two possible solutions had been suggested, the judge acknowledged. One as detailed was that "all cross-examination be deferred until after each party had given their evidence in chief." He noted that counsel for Mr Gogarty supported this proposal. Another was that the parties might submit further statements. Ultimately, the judge said he was satisfied that the tribunal had the power to "have flexibility in respect of what procedure it adopts, subject only to a requirement of fairness".

He also said that the tribunal did not need to be bound by the procedures of previous tribunals, and that the proposal to take all evidence before cross-examination was not unfair.

"Counsel to the tribunal did not suggest that that this right (to cross-examination) be removed, but merely deferred.

"The course suggested by counsel to the tribunal appears to me to be a sensible one and would, in normal circumstances, provide a solution to the problem."

However, Mr Justice Flood said that "regrettably" the circumstances were not normal.

"It has been clearly flagged to the tribunal that if this course is adopted it will be challenged in the courts."

Mr Justice Flood said any such challenge would result in a delay of at least six months, but as the tribunal was already taking Mr Gogarty's evidence out of turn - in deference to his age and state of health - going to the courts would seem to negate the reason for taking Mr Gogarty's evidence first.