The opening of the Flood Tribunal was unprecedented in that it allowed Mr James Gogarty to make public allegations which were damaging to individual reputations without crucial evidence being given to those whose reputations were to be damaged, yesterday's hearing was told.
Mr Garrett Cooney SC, for the Murphy group of companies, objected to the hearing of evidence from Mr Gogarty without an "opening statement whatsoever" from the counsel for the tribunal, and before he had been furnished with "certain vital documentation".
Mr Cooney said the tribunal should delay hearing Mr Gogarty's evidence "in the interests of fair procedures".
Referring to the need for an opening statement to put matters into context, Mr Cooney told Mr Justice Flood that it was, in his respectful opinion, unfair to his clients "if you commence this tribunal without a statement from the tribunal counsel setting out what our side of this case, what our defence is and what our position is. I think that considerations of fundamental fairness and constitutional justice require that these facts be first put on the table before Mr Gogarty goes into the witness box.
Mr Cooney said he and his clients were entitled to see documentation furnished to the tribunal by Mr Gogarty, but while he believed there was "voluminous documentation", he and his clients had been furnished with just a selection.
He also argued that he and his clients were entitled to see documented submissions from solicitors Donnelly Neary and Donnelly of Newry, Co Down, which had not been furnished to him but which he maintained were relevant to his clients' interests.
Mr Cooney also argued that he was entitled to documentation from auctioneers Mangan, Duffy and Butler, which had also not been forwarded to him.
Mr Cooney said his team had written to the tribunal and had received no satisfactory response and he added: "and with respect Mr Chairman, and I don't want to be rude or discourteous, I have to say to you that that is not good enough. It's unfair to my clients and they should not be put in that position."
Mr Cooney also asked if the chairman had interviewed Mr Gogarty. If so, on how many occasions? Insisting that this information was of paramount importance to his clients, Mr Cooney said that the chairman had "personally intervened" to arrange Garda protection for Mr Gogarty. Mr Cooney asked to know on what basis this had been done and what, if anything, had been given in return. "We are entitled to know, in my respectful submission, what communication you had with Mr Gogarty and the extent of that communication as indicated by the matters which are referred to in Garda papers."
In summary, Mr Cooney said it would be in the interests of fair procedures for some context to be set for Mr Gogarty's evidence, "even if it means delaying his evidence for 24 hours, no more than that".
