Problems facing the Flood tribunal flowed entirely from the failure of the participants to "face up to reality" and accept that it must get to the circumstances of a payment which was admitted to have been made to Mr Ray Burke, Mr Justice Flood said yesterday.
He was responding to a submission from Mr Colm Allen SC, for Bovale Developments, that in hearing evidence of litigation between Mr James Gogarty and his one-time employers, the Murphy group, the tribunal was going outside relevant detail and beyond its terms of reference.
Mr Allen said it was a growing cause of anxiety that after 10 days of public sittings, just 45 minutes of material was relevant, in his opinion. He asked Mr Justice Flood to indicate what purpose was being served by reading into the record details of a 1989 dispute between Mr Gogarty and the Murphy group.
"I do feel that there is an obligation not simply to sit silent and allow what I consider to be a profound waste of public monies and public funds to continue" said Mr Allen. He added: "At what point in time are we going to deal with the exception - the signal exception - of the 45 minutes of evidence tendered by Mr Gogarty some five days ago? Because if matters proceed we will undoubtedly be here next year on this stage."
Mr Garrett Cooney SC, for the Murphy group, said he shared Mr Allen's apprehensions, particularly as Mr Gogarty had used the first days of the tribunal "venting his spleen in a most vicious way against his former employers, but particularly against Mr Murphy snr." Mr Justice Flood told the tribunal that Mr Gogarty's credibility or otherwise had to be established. Mr Gogarty had been called "an audacious liar" (in fact, he had been called a malicious and artful liar - a point later brought to the judge's attention by Mr Cooney) by participants at the tribunal, yet those participants had not supplied a narrative account.
"I have repeatedly said that if participants had given a narrative account of what their situation was . . . what their view was . . . none of this would have arisen.
"There has been a vicious attack - it may well be absolutely justified for all I know - upon Mr Gogarty, who has been described as an audacious liar," he continued. "If there is going to be a challenge that once a person gives evidence that they are accused of being an audacious liar, then I think they are entitled to justify the proposition that they are not an audacious liar and that perhaps those who are criticising them may not be altogether holy and angelic.
"Even listening to the evidence here today one might perhaps take a different view of the angelic nature of some of the parties and some of the people who have been described. I don't know, I've got to look at the whole thing."
Mr Justice Flood asked Mr Cooney and Mr Allen to reach agreement with Mr John Gallagher SC, counsel for the tribunal, on what was relevant - "what you are prepared to admit as to the situation and try and get, as it were, an area of agreement, and we'll look at the area of disagreement. "It would undoubtedly help and would undoubtedly speed things up," he added.
He said that as it stood, with allegations of lies and denials, he would have to inquire into the matter and decide who was telling the truth. "I am actually at the moment inquiring into a very simple sector of this case. What are the circumstances under which an admitted payment of £30,000 - whether it is more or less - was made to Mr Burke? That is all I am doing.
"It may well be that Mr Gogarty as a participant has, to use a neutral phrase, an inaccurate recollection, and it may be of help if those who say they have an accurate recollection, if they gave us their version.
"But this is not emerging. I have asked for it in correspondence, I've asked for it here. "And it just is not emerging, and there is nothing I can do but listen to the circumstances in which Mr Gogarty says he is not an audacious liar. "And it all flows from a lack of common sense and common purpose to look at the reality of what we are about," concluded Mr Justice Flood.
