The High Court will be asked to decide today whether the media and members of the public can attend the taking of evidence from Mr Joseph Murphy snr in Guernsey, as part of the Flood tribunal. The hearing is due to start in Guernsey tomorrow.
On Friday Mr Justice Flood, the chairman and sole member of the tribunal, ruled that because of the fragile state of Mr Murphy's health the press and public should be excluded.
The Irish Times, the Examiner, RTE and Independent Newspapers then sought leave for the holding of a judicial review of the ruling. Leave was granted by Mr Justice O'Higgins, and the judicial review hearing will take place this morning in the High Court in Dublin.
The review is being sought on the basis that, under the 1921 Tribunal of Inquiry (Evidence) Act, Mr Justice Flood is not empowered to exclude the press. This specifies that hearings should be in public.
Today's hearing is likely to be given a rerun of the arguments made at the tribunal last Friday, when Mr Justice Flood decided that the press and public should be excluded. The tribunal's legal team, rather than Mr Justice Flood, will make the case for excluding the media and the public.
On Friday Mr Richard Nesbitt SC, on behalf of The Irish Times, said that the presence of a small number of journalists was unlikely to add to the pressure on the health of Mr Murphy snr.
"It can't be seriously suggested that to have a number of people who do no more than attend and take a note, being in the room and not being involved in the transaction, can increase, with respect, the difficulties that may be attendant upon giving evidence," he said.
In his ruling Mr Justice Flood said: "It is true that this is a public sitting of the tribunal, but that public aspect of the sitting is catered for by the publication in the public sitting of the tribunal of the evidence in question by recording the deposition in the records of the public sitting."
The availability of the transcripts of the proceedings to the media met all their needs, he ruled. "All facilities of being present in court and all the consequences of the press being present are duly protected," he said.
Quoting from a medical report on Mr Murphy snr, he stressed that he wished to affect the health and comfort of the witness as little as possible.