The row over the cross-examination of Mr James Gogarty is still heading for the High Court, following an inconclusive series of legal submissions at the planning tribunal yesterday.
Mr Justice Flood has promised a ruling by tomorrow at the earliest on the procedure for cross-examining the 81-year-old former building executive. Tribunal lawyers have called on the chairman to defer the cross-examination of Mr Gogarty because of the "manifestly insufficient" statements provided by the former minister for foreign affairs, Mr Ray Burke, and two builders.
However, Mr Eamonn Leahy SC, for one of the builders, Mr Michael Bailey, said his client was not prepared to waive his "valued constitutional right" to cross-examine his accuser.
This makes a confrontation in the High Court all the more likely if the chairman rules in favour of deferring Mr Gogarty's cross-examination until after the evidence of the 19 or 20 people mentioned in his affidavit is heard.
Mr Leahy described the proposed manner of proceeding as "an impromptu judicial version of Lanigan's Ball".
The tribunal lawyers want to prevent other parties from setting ambushes for Mr Gogarty by raising matters which are not contained in their statements. They have argued that since he submitted a full statement, the other parties should do the same.
Mr Gogarty, who has been resting since last Thursday, is due to complete his evidence over the next few days. This will include an allegation of a payment to the former Dublin assistant city and county manager, Mr George Redmond; matters relating to JMSE's work on the Moneypoint generating station in Co Clare; and allegations of threats and intimidation against Mr Gogarty.
In his absence yesterday, Mr Michael Cush SC, for Joseph Murphy Structural Engineering, paid ironic tribute to Mr Gogarty, suggesting he was an "accomplished" witness who could marshal facts in a way that suits his case. The witness had "a great sense of timing and remark and a keen eye on a headline," he said.
But Mr Gogarty was also a "malicious and artful liar", he suggested. He knew the truth but was not a truthful witness. It would be pointless to send such a person the questions for cross-examination "in the post".
Mr Cush admitted that the witness had included a great deal of accurate and detailed information in his evidence "but the core of it is a lie".
Mr Gogarty had "cleverly avoided" giving the date of the meeting in Mr Burke's house in 1989 at which the payment was made. This made it very difficult for Mr Joseph Murphy, who denies Mr Gogarty's assertion that he attended the meeting, to refute this allegation.
Once the chairman had determined who was telling lies about the meeting, many other issues would "fall away", he predicted.
Lawyers for Mr Bailey, Mr Burke and JMSE yesterday rejected suggestions that their level of co-operation had been less than desired. This effectively killed off the alternative proposal made last week by the tribunal lawyers, namely, that they submit more detailed statements.
Much of yesterday's session was taken up with opposing submissions on the lessons to be learned from other inquiries. The names of Parnell, Goodman and the UK's Scott inquiry on arms to Iraq cropped up as opposing lawyers drew differing conclusions.
Mr Leahy called on the chairman not to adopt the "procedurally novel course" suggested by his lawyers. Mr Cush argued that having taken Mr Gogarty's evidence out of turn on account of his ill-health, it would be inconsistent to put off his cross-examination.
One possible compromise would be to hear the evidence of Mr Burke, Mr Bailey and JMSE, who have for the most part submitted flat denials of Mr Gogarty's allegations with little accompanying detail, before proceeding with the cross-examination of Mr Gogarty. The tribunal would then hear the evidence of other witnesses who have submitted full statements.
Mr Leahy left open this possibility by asking the tribunal lawyers yesterday for details of the proposed list of witnesses and the timescale envisaged.
Otherwise, there was little agreement, except perhaps on Mr Cush's assertion about the Burke meeting: "someone was telling lies".