There was a degree of favouritism or partiality extended by tribunal lawyers to Mr James Gogarty that was not extended to other parties, the tribunal was told by Mr Garrett Cooney SC for JMSE and Mr Joseph Murphy yesterday.
Mr Colm Allen SC, for Bovale Developments Ltd, Mr Michael Bailey and Mr Thomas Bailey, claimed a tribunal lawyer was under the impression he was on some sort of mission to protect or buttress Mr Gogarty's integrity.
Mr Cooney said Mr John Gallagher SC (for the tribunal) referred to a contrary view being taken in Mr Gogarty's account of facts which emanated from them (Mr Cooney's team).
This was an extraordinary thing for him to say since he decided not to make the opening statement in which he would set out fully the accounts given by all parties in the case. But Mr Gallagher referred partially to what was contained in the statement which they had furnished to the tribunal. "Nothing could better illustrate the lack of objectivity and the lack of impartiality our clients have experienced since the opening of this," Mr Cooney said.
Mr Gallagher had talked about establishing Mr Gogarty's credibility. What business was it of his to do so? Mr Gallagher should not take sides. "It seems to me, Mr Chairman, that a degree of favouritism or partiality has been extended to Mr Gogarty which has not been extended to my clients."
They had also asked that they see more of Mr Gogarty's papers. They needed to hear that day before they commenced the cross-examination. If discovery was directed, there was a logistical problem, as they needed to examine the documents.
Mr Allen said he had a specific concern arising from the response, particularly from Mr Gallagher. The difficulty arose from the fact that they still had no idea what the intentions of the tribunal were or how it was to proceed other than to give Mr Gogarty's evidence as he saw fit. There was no opening statement and it had not been indicated what evidence or information there would be at the public sittings. They were at a distinct disadvantage.
"Mr Gallagher is under the impression that he has some sort of mission to protect or buttress Mr Gogarty's integrity. It is not his function," Mr Allen stated. Mr Gallagher said: "I take personal offence at the suggestion that there's any attempt to protect and buttress Mr Gogarty. Every witness will be treated the same and I am not prepared to take that type of allegation from Mr Allen or anybody else." Mr Allen had chosen to make it clear that Mr Gogarty would be challenged and it would be alleged his (Mr Gogarty's) statements were littered with falsehoods. The issue of credibility and whether Mr Murphy or Mr Gogarty was right was up to the tribunal chairman, he said.
At this point, Mr Justice Flood rose to consider all applications made. He returned to state the problems arose from the nature of confidentiality with which the tribunal received documents. He then adjourned until 2.15 p.m. and said he would see Mr Gogarty this morning at 10 o'clock.
