JUDGE CONAL Gibbons yesterday gave defence lawyers for five men being sued by relatives of victims of the Omagh bombing until this morning to challenge certain questions sent to Dublin from the Belfast court.
This followed a morning of legal argument about the "rules of engagement" drawn up by Judge Gibbons for this phase of the hearing.
The relatives are suing Michael McKevitt, Séamus Daly, Liam Campbell, Colm Murphy and Séamus McKenna, along with the Real IRA as an organisation, for damages suffered as a result of the bombing, for which they claim the defendants are responsible.
Last February the presiding judge in the case, Mr Justice Declan Morgan, ordered that a formal request be made to the judicial authorities for their help in obtaining evidence from a number of members of the Garda Síochána involved in this and related investigations. This was granted, and the taking of evidence opened yesterday, presided over by District Court Judge Conal Gibbons, under an EU directive on co-operation between the courts of EU member states in the taking of evidence in civil or commercial matters.
When the case opened, Brian O'Moore SC said he was there to represent members of the Garda Síochána called to give evidence. He said public interest immunity from cross-examination might arise for these witnesses. He would then wish to make submissions on behalf of any member of the force who raised the issue.
Michael O'Higgins SC, counsel for Michael McKevitt, objected to a "rule of engagement", stating that no objection to any of the questions by or on behalf of any party would be entertained. Anything that prevented his client from raising a perfectly valid objection was manifestly unfair. What was even more unfair was that witnesses, who were not affected by the outcome of the case, could object to certain questions.
Judge Gibbons said that, as he saw the process, this procedure involved the taking of evidence. "These are questions that the court in Northern Ireland requires to be answered. If there is an objection to the questions, these should be put in the trial court. I am not trying the issue between the parties. I am merely assisting in the taking of evidence. It would be improper for me to have the temerity to say your questions are this, that or the other."
Mr O'Higgins said that, even if Judge Gibbons was technically correct, these questions had been drawn up by the plaintiffs. If they were asked and answered they would be published the length and breadth of the country, which would be very damaging to his client. It would be little compensation if they were disallowed in Belfast two or three weeks later.
He said the first notice he and his client had of the questions was last week. He also said that this was not a theoretical matter.
The question of opinion evidence had been raised in Northern Ireland at a case conference. The plaintiffs had not been in a position to furnish statements on opinion evidence, so they were not able to litigate this issue in the Belfast court. Questions relating to opinion evidence were among those now listed to be asked.
Judge Gibbons said he understood the problem, but it was not for this hearing to usurp the role or function of the trial in Northern Ireland. Brian Fee QC, for Seamus McKenna, said that on his reading of the regulation under which the hearing was taking place, members of the Garda did not have the right to representation. The idea that witnesses being called in a civil action were being separately represented was wrong. In Northern Ireland the police had had barristers in court who were not on record, but who had a watching brief so if they had an issue they could consult their lawyers.
Following an adjournment over lunch, Judge Gibbons ruled that Mr O'Moore would have only a watching brief on behalf of the Garda. If and when issues arose, he could call on him to make submissions.