IN an unprecedented development at the tribunal yesterday, Mr Garrett Cooney SC, for JMSE and the Murphys, was ordered to withdraw from the proceedings. The chairman, Mr Justice Flood, ruled that he was withdrawing Mr Cooney's entitlement to address the tribunal on behalf of his clients to protect the tribunal's integrity.
Mr Cooney said he was taking the matter to the Professional Practices Committee of the Bar Council. Mr Colm Allen SC, for the Baileys and Bovale, was asked to start cross-examination on behalf of his clients when the two other members of the Murphys' legal team withdrew. However, he said he wanted to take advice from his professional body.
The tribunal was adjourned until today.
The chairman started in the morning by making a statement and this was responded to by Mr Cooney, who said he would not apologise. The chairman said he had had since 12.45 p.m. the previous day to apologise.
The chairman said: "The remarks made by Mr Cooney in their effect constitute a serious and direct challenge to the integrity of this tribunal and, in consequence, if left unchallenged, may hinder the proper functioning and effectiveness of the tribunal."
While a tribunal was not a court of law, this did not mean that there was not a requirement for decorum and an appropriate respect for the procedures applicable. He said it was regrettable that, in advance of these remarks, Mr Cooney yet again saw fit to announce to the tribunal an intention to apply to the High Court to judicially review the tribunal. The tribunal had already publicly indicated that in terrorum threats of High Court intervention would not be allowed to impede its work.
There were two avenues open to the tribunal. Firstly, it could attempt to ignore the import of the conduct and the remarks of Mr Cooney. In his view, this was not appropriate, having regard to the necessity to preserve tribunal integrity.
"The only other option available to the tribunal, which in the circumstances would be effective, is to indicate to Mr Cooney that while the order for representation in relation to his clients is not being varied or discharged, the tribunal, in the absence of the appropriate apology from him, will withdraw his personal right of audience before the tribunal."
This would not affect the right of audience of the two remaining senior counsel and legal team appearing for JMSE.
This was not a decision the tribunal would wish to make, nor was it one that would be made lightly, but it was a regrettable fact that the tribunal considered it necessary to consider whether Mr Cooney's continued right of audience should be withdrawn.
The chairman had opened by saying the tribunal was hearing Mr James Gogarty's evidence. The tribunal had been, and continued to be, conscious of its duty to ensure fair procedures for JMSE and all other interested persons.
"This does not mean that the tribunal is required to take the `side' of any person in these proceedings. In fact, having regard to the inquisitorial nature of a tribunal, there are no `sides' to an inquiry," the chairman said.
He said that at the time leading to the adjournment on Wednesday, Mr Cooney was cross-examining Mr Gogarty on the content of a document described as a draft affidavit or draft statement. It transpired that this document was prepared by Mr Gogarty's then solicitors, Donnelly Neary Donnelly, in August 1997.
The document was not signed by Mr Gogarty and he had stated in evidence that he never swore or signed it. Mr Cooney wished to put to the witness an extract from this document, apparently to illustrate an apparent inconsistency between this document and the affidavit sworn by the witness.
The chairman said he had made a ruling that this document should be put by Mr Cooney to the witness in its correct context. Counsel for Mr Gogarty had stated that it was clearly a draft not signed by the witness.
Mr Cooney maintained his entitlement to put the document to the witness and quoted " . . . this affidavit is in the first person singular, this document is in the first person singular, it's `I', he refers to `I'."
The chairman said Mr Cooney went on to state " . . . somebody may have actually typed it out for him but it's plainly in his words".
Following an intervention by counsel for the tribunal to clarify that the document was not a draft affidavit but rather a draft of a statement, Mr Cooney accused counsel for the tribunal of attempting to sabotage that part of his cross-examination.
The chairman said he had ruled that no person was seeking to sabotage the cross-examination by Mr Cooney. In reply, Mr Cooney stated: "It seems likely, Mr chairman."
The tribunal then invited Mr Cooney to put to the witness the document concerned in its proper context. In reply, Mr Cooney stated: "Please, Mr chairman, Mr Gallagher interrupts me, Mr Callanan [for Mr Gogarty] interrupts me."
"Mr Cooney then, in strident tones, addressed the tribunal as follows," said Mr Justice Flood. Mr Cooney had said: "Mr chairman, what is going on here? Are you going to give us a chance to defend ourselves in this tribunal?"
The chairman said: "The clear inference from these remarks is that the tribunal itself had wrongfully sought to interfere with the constitutionally protected right of JMSE to defend their interest before the tribunal. This is not the case."
The tribunal stated to Mr Cooney that the content and manner of his remark to the tribunal were both insulting and insolent. In response, Mr Cooney had stated: "It's well justified, Mr chairman by the . . ." Mr Cooney did not complete his remark as the tribunal forthwith adjourned.
The members of the professional practices committee of the Bar Council are: Mr Liam McKechnie SC (chair); Mr James Connolly SC; Mr Denis McCullough SC; Mr R.A.M. Robins SC: Mr Patrick McCarthy SC; Mr David Sutton; Ms Niamh Hyland; and Mr Meliosa dooge. Mr Pobins, Ms Hyland and Mr Dooge are co-opted members.