The former minister for foreign affairs, Mr Ray Burke, was expected to take the witness-stand tomorrow, but his evidence has now been postponed to next week at the earliest.
The news will be greeted with relief by Fianna Fail, which was concerned at the possible fallout from Mr Burke's evidence this week, when the Dail was still sitting.
When the tribunal resumes this morning, it is believed Mr Justice Flood will be told there is insufficient time to hear Mr Burke's evidence this week. The delay is largely due to the involvement of tribunal lawyers in the High Court case brought by Fianna Fail TD Mr Liam Lawlor, in which a judgment is expected on Friday. Mr Burke, who is thought to be anxious to give evidence as soon as possible, will probably need more than one day in the box. The tribunal, which is unlikely to sit on Friday because of the Lawlor case, is unwilling to have his evidence interrupted by a weekend, making a postponement inevitable.
In the calm before his appearance, the tribunal yesterday revisited familiar pastures, in the form of Mr James Gogarty's pension dispute with his former employers, Joseph Murphy Structural Engineering (JMSE).
The only witness yesterday was Mr Gerry Sheedy, solicitor to Mr Gogarty. Mr Sheedy, a senior partner in McCann Fitzgerald, had steered Mr Gogarty through his dispute with JMSE between 1989 and 1991, and reemerged as his legal adviser just before the tribunal opened.
Not for the first time the tribunal was, in the words of the chairman on another occasion, "wandering in the desert", as the Gogarty v JMSE rivalry took precedence over a broader the investigation into planning corruption. Once again, time and taxpayers' money was were dispensed liberally in the tedious rereading of financial correspondence culled from dusty archives.
Mr Justice Flood consented to the demand by Mr Garret Cooney SC, for JMSE, that vast swathes of tax-related correspondence be read into the record. But if anything, the picture of JMSE's tax dealings that emerged after this process was even more bizarre than appeared at first glance. It was clear from the correspondence that the company: - wrote to the Revenue Commissioners about Mr Gogarty's tax affairs without telling him; - sought to have P60s issued to Mr Gogarty from three subsidiary companies for which he never worked; - told the Revenue Mr Gogarty worked for one of these subsidiary companies, Grafton Construction, for about 20 years. Mr Gogarty never worked for Grafton; - told the Revenue that Mr Gogarty had agreed to waive his commission due for negotiating monies from the ESB. Mr Gogarty never agreed to this.
The background to those events in 1989 and 1990 is Mr Gogarty's by-now-familiar fight to procure a pension from his long-time employers. In the autumn of 1989 he reached agreement with the company on receiving £300,000 to go towards a pension. He was also to receive 50 per cent of the money he negotiated from the ESB above a threshold of £130,000. He signed the deal, together with financial controller Mr Roger Copsey, on October 3rd. Subsequently, however, Mr Copsey said the deal was subject to the approval of Mr Joseph Murphy snr. Mr Sheedy expressed surprise at this yesterday. "I never had any indication that his signature wouldn't be binding."
Meanwhile, the ESB board approved a payment of £700,000 including VAT. With no sign of the pension money being paid, Mr Sheedy decided to protect his client's interests by giving him a lien over the ESB money. He opened a reserve account in the name of "McCann Fitzgerald re JMSE" and put the cheque into it.
JMSE assured him the pension deal would be honoured and said Mr Murphy had approved it, but still no lump sum was paid. When the company learned that the ESB money had been placed out of its reach, it said this would have to be transferred before the pension money was paid. The dispute degenerated and both sides issued legal proceedings. These proceedings were settled in 1990, but almost immediately a new dispute blew up.
JMSE proposed issuing Mr Gogarty with three P60s in respect of its subsidiary companies, Grafton Construction, Wexbourne Ltd and Reliable Construction. But Mr Gogarty had never worked for any of those. Mr Sheedy refused to accept them, and referred to the P60s yesterday as "mis-statements".
For JMSE, the tax advantage of this arrangement is clear. JMSE, the company that employed Mr Gogarty, was engaged in manufacturing and therefore subject to a 10 per cent tax rate. As property-holding companies, the three subsidiaries were subject to corporation tax at a high rate and so any write-offs would maximise the group's tax efficiency.
In November 1989, Mr Copsey wrote to the Revenue Commissioners saying "an agreement has now been reached between JMSE and Mr Gogarty that Mr Gogarty should the waive the bonus" due from the ESB, the reason being that he was to receive "an exactly similar sum" from another company. No PAYE tax would be due from JMSE on the amount waived, he asserted.
But Mr Sheedy refused to play ball. He was concerned that Mr Gogarty would be confirming statements that were incorrect. Mr Cooney said it was grossly unfair to Mr Copsey to "zero in" on a single part of a letter and to ignore the rest. Pressed several times by the chairman as to whether the quoted paragraph in the November letter was accurate or not, Mr Cooney said it had to be read in context.