His ruling that he would continue to hear the evidence of Mr James Gogarty while awaiting a transcript to assist his handling of the question of a possible leak by the tribunal staff to the media was not subject to debate, Mr Justice Flood said yesterday.
Mr Eoin McGonigal SC had requested to be allowed to respond to the ruling. Mr Justice Flood said he would not hear any response, but would proceed to hear Mr Gogarty's continuing evidence.
"I have made a ruling that that is what I am going to do and I am going to do it. That is an end to the matter," he declared.
Mr McGonigal responded: "It is really only the beginning of the matter." Mr Justice Flood replied, "That may well be true when we know the full facts."
Mr McGonigal then asked if he "might explain something". Mr Justice Flood replied: "Mr McGonigal, I have made a ruling that the tribunal is going to proceed. The matter [the alleged leak to the media] is going to be dealt with when I have had an opportunity of finding out independently what was said.
"Now until that is done I am not going to do anything else whatsoever and I am not going to take dictation from you or from any other counsel. This tribunal is now going on."
Mr McGonigal said he was not trying to dictate anything and asked if he could put a question in relation to Mr Gogarty's evidence. Mr Justice Flood said: "No, I don't see why you should."
"It is for clarification," responded Mr McGonigal.
"No," replied Mr Justice Flood.
"Is there any useful purpose in my being here at all?" asked Mr McGonigal.
"Yes, in due course of time and when I have the necessary information and am in a position to consider the situation. I am not going to do it until I have that," said Mr Justice Flood.
Mr McGonigal said that he understood "yesterday afternoon when you came out and you made some preliminary remarks to hearing the issue on cross-examination, that you said - and I'm not quoting you - that you are seeking the guidance and the assistance of persons that you have before you . . . ?
"On that occasion, yes," interrupted Mr Justice Flood.
Mr McGonigal said that the point of clarification in relation to Mr Gogarty's evidence could be seen to be of assistance, but Mr Justice Flood said that the way he saw it, "at the moment you are standing up to make a complaint on what you heard on Radio Eireann last night."
The judge again repeated that until he had a full transcript of what was broadcast he could not make any decision on the matter. "I am entitled to know the facts and I am not going to act until I do know the facts," he insisted.
Mr McGonigal then said he would like to move along to the subject of Mr Gogarty's evidence. "I am hoping that I would not have to cross-examine Mr Gogarty and I am hoping to achieve that by indicating to you some of the questions that I think should be asked by the tribunal. I'm simply asking for clarification in view of the remarks that you made."
Mr McGonigal added that it was " absolutely essential that this matter be fully gone into now."
"I require you now to resume your seat," Mr Justice Flood responded. "I repeat I will not be directed by you or anybody else as to how or where or in what manner this tribunal is going to be conducted."
Mr Justice Flood told Mr McGonigal that he was the person empowered to make that decision and added, "That is an end to this discussion, Mr McGonigal, now please resume your seat."
"I am seeking clarification, Mr Chairman," said Mr McGonigal, still standing.
"I am not prepared to go any further than what I have said, at this moment," said Mr Justice Flood.
"May I ask one more question?" asked Mr McGonigal.
"No is the answer to that," said Mr Justice Flood.
Mr McGonigal then resumed his seat.
