Mr Oliver Barry, the former director of Century Radio, who made a cash payment of £35,000 to Mr Ray Burke, will appear before the Flood tribunal today, despite his lawyers' pleas that he should not be required to give evidence at this stage.
The tribunal chairman, in making his ruling yesterday, said Mr Barry had "acted with a cavalier disrespect both for the tribunal and its orders".
If he had provided a narrative statement, as requested, or answered the questions put to him in letters from the tribunal, or had fully complied with the order of discovery made on December 10th, it might have been possible to defer his evidence, said the chairman.
His counsel, Mr Colm Allen SC, appeared "to ignore the fact that my decision to segment the evidence into different sections was taken merely as a matter of procedural convenience".
That did not mean, said Mr Justice Flood, that he could not take evidence relevant to any part of the inquiry "at any stage, particularly when such evidence is clearly relevant to the `module' I happen to be dealing with at a particular point in time".
Mr Barry was being called to identify a payment "which he has admitted he made", because he had failed to provide sufficient information to allow the tribunal "identify the payment for its present purposes".
It had come to the tribunal's attention that a lodgement of £39,500 made by Mr Burke in May 1989 contained a payment for £35,000. It was informed that this payment was made by Mr Barry, in cash.
It became incumbent, said the chairman, to "establish definitively" where it had come from and, more importantly, that it was not made by any party mentioned in the evidence of Mr James Gogarty.
The tribunal wrote to Mr Barry in July 1999. A lengthy exchange of letters followed between it and his solicitors between July and December. While he admitted making the payment, no other information was forthcoming from Mr Barry. "In the course of this correspondence the tribunal made every reasonable effort to obtain this information from Mr Barry, on a voluntary basis," said Mr Justice Flood. Eventually, he was asked to submit a narrative statement and declined on grounds of legal advice.
The tribunal was left with no alternative, said Mr Justice Flood, but to invoke its statutory powers. It issued an order of discovery on December 10th limited to the period between January 1st, 1989, and July 31st, 1989, and directed that the relevant documents be produced by December 17th.
When the order was not complied with he issued a summons on January 24th last requiring Mr Barry to attend a sitting of the tribunal on February 3rd "to give evidence and produce documents relating to the admitted payment".
At the "11th hour", on the return date of the summons, a letter was received from Mr Barry's solicitors containing an affidavit of discovery, scheduling six documents. However, no copies of the scheduled documents were enclosed.
"Mr Barry's solicitor unilaterally took it upon himself, without reference to me, to advise his client that it was not necessary for him to attend in answer to the summons," said Mr Justice Flood.
This was based on the assertion that he had now complied with the order for discovery. This was manifestly not the case.