A potentially explosive situation at the Flood tribunal yesterday was defused only after the chairman was assured that the current JMSE managing director, Mr Frank Reynolds, would appear before him on Monday.
It followed the announcement by Mr Dan Herbert SC, that neither Mr Reynolds nor the company accountant, Mr John Meagher, would be available before Tuesday, despite the fact that Mr Reynolds was due to appear as a witness yesterday.
The chairman, Mr Justice Flood, found Mr Reynolds's non-appearance "very disturbing without prior consultation with the tribunal".
Mr Herbert indicated that Mr Reynolds was delayed because of urgent business that could not be deferred and Mr Meagher had suffered a family bereavement.
The chairman felt in the circumstances that he should have direct evidence from Mr Reynolds as to why he was not available and why his "other activities" could not be deferred. It was not for witnesses to make concessions to the tribunal but the other way round, he told Mr Reynolds's counsel.
Mr Herbert protested that his client "should be singled out" in this way, given the delays that his legal team and their clients had experienced on several occasions.
The matter was resolved at 4 p.m. when Mr Herbert said contact had been made with Mr Reynolds and he had undertaken to be present on Monday.
The proceedings were then devoted mainly to Mr Herbert's cross-examination of Mr Christopher Oakley, the English trust lawyer who had consolidated the position of Mr Joseph Murphy's wife and family as beneficiaries of the Murphy Trust. This was in opposition to the late Mr Liam Conroy, the former chief executive of the Murphy Group, who had pursued his own claims against the Murphys. Mr Oakley had also been authorised by Mr Murphy snr to negotiate Mr James Gogarty's pension settlement.
Mr Herbert took Mr Oakley through the various affidavits sworn by Mr Conroy and the responses by Mr Murphy. He dwelt in particular on the status of trusts and the role of trustees, and Mr Oakley agreed that it was virtually impossible for Mr Murphy snr to have availed of Murphy Trust funds, as alleged, without the knowledge of the trustees, two partners in accountants Ernst & Whinney. These charges were ultimately withdrawn by Mr Conroy as "vexatious and frivolous" in the settlement between the parties.
Turning to Mr Gogarty's pension, Mr Herbert referred Mr Oakley to his earlier evidence concerning the final payment of £700,000, due to JMSE on the Moneypoint contract negotiated by Mr Gogarty, to McCann Fitzgerald, solicitors, which was put on deposit by Mr Gerard Sheedy of that firm. This figure was way in excess of the notional £130,000 which was agreed in the pension settlement signed on October 3rd, 1989.
Mr Oakley conceded that he had not been successful in his complaint against Mr Sheedy and his firm to the Law Society, because it was found that JMSE was not a client of McCann Fitzgerald. Another reason given by the firm was that as solicitors for Mr Gogarty the money was being held "as a lien over money for services rendered".
Yet a third explanation related to documents discovered when journalist Frank Connolly gave evidence to the tribunal, suggested Mr Herbert. This related to an interview with Mr Gogarty in a solicitor's office in Newry in which the former JMSE chief had claimed that he was holding money on deposit "as a ransom" against his pension settlement.
Mr Oakley agreed this appeared to be the most correct version.