An application to the High Court judge hearing the Liam Lawlor case to discharge himself and assign the case to another judge was turned down yesterday.
Lawyers for the Dublin West TD submitted that Mr Justice Thomas Smyth should stand aside from the case because he had given legal advice to Green Property plc in 1991 in relation to the planned Blanchardstown shopping centre. The centre would be in competition with the nearby Quarryvale shopping centre and has featured in some of the Flood tribunal hearings.
Mr Justice Smyth is hearing contempt proceedings taken against Mr Lawlor by the tribunal over his alleged failure to provide it with various documents and records. Last month the judge granted leave for a notice of motion seeking the attachment or committal of the former Fianna Fail TD to be served on him.
The contempt proceedings were to have started on Monday, but when the court sat on that day the application for the judge to withdraw from the case was raised.
After Mr Justice Smyth decided he would not discharge himself, he began hearing the contempt proceedings. Lawyers for Mr Lawlor declined to say whether they would bring an appeal to the Supreme Court against the judge's decision not to remove himself.
In his judgment Mr Justice Smyth said he did not feel compromised by the advice he had given to Green Property a decade ago. He was not embarrassed and he would do his duty as a judge.
At the start of yesterday's sitting, Mr John Rogers SC, for Mr Lawlor, stated that in a letter from the tribunal to Mr Lawlor last October there had been a reference to a Mr A. He was now instructed that Mr A was a Mr Kennedy. Counsel did not further identify Mr Kennedy but it is understood he was referring to a Dublin arcade-owner, Mr Jim Kennedy.
Mr Rogers said he was instructed that around 1989 Mr Justice Smyth, then a senior counsel, had acted for a company in which Mr Kennedy had an interest. The case was a civil action in which that company was a defendant.
Counsel said there was a complete distinction between Mr Justice Smyth's role in the Kennedy case and his part in giving advice to Green Property.
Mr Frank Clarke SC, for the tribunal, said the question was whether Mr Lawlor was in breach of the court's order directing him to make documents available to the tribunal and to answer questions; and if he was, what should be done about it. Mr Clarke said he accepted it was reasonable to assume that Mr Justice Smyth's opinion when he was counsel was used in some way as part of a campaign on behalf of Green Property. If all that happened was that the proponents and opponents of Quarryvale fought a vigorous campaign in lobbying on both sides of the equation, it would not be of interest to the tribunal.
But if there was evidence that one or other or both sides had done something wrong, the situation would be different. But this was a long way from what the opinion of the judge as counsel could be used for. Mr Clarke said it had come to the attention of his side that the judge's opinion, as counsel to Green Property, had been among the papers accumulated by the tribunal in the last year.
Giving his judgment on the application to discharge himself from the case, Mr Justice Smyth said an opinion given by him in 1991 had nothing to do with proceedings relating to the validity of the tribunal's orders.
Opening the case for the tribunal, Mr Clarke said the matter came before the court because Mr Lawlor had failed to comply with the orders of the court.
In an affidavit given to Mr Clarke by Mr Lawlor's side, it appeared the TD now seemed to accept there had been an inadequacy on his part in making discovery of documents.
Two questions were before the court: had there been a breach of the court's orders in regard to the production of documents and the giving of evidence?; and if there had been, what was to be done about it?
Mr Lawlor had been ordered by the court to produce evidence in relation to a wide range of financial documents and records. These orders had been made against a background of a number of contentious issues being investigated by the tribunal, including Quarryvale.
It appeared Mr Lawlor was now putting in place a document definitively setting out all records and documents that he was required to produce.
Counsel said the tribunal was alleging Mr Lawlor had failed, rejected and refused to discover documents as required and failed to respond to questions.
In documentation produced by the tribunal, 36 instances were listed indicating identifiable categories of documents not produced. Mr Lawlor now seemed to be saying he was taken by surprise by the questions asked of him at the tribunal.
The deputy had failed to make discovery from third parties with whom he was in association and people acting on his behalf.
It now appeared solicitors acting for Mr Lawlor had written a significant number of letters to people who might be able to help in this regard. But Mr Clarke was not able to say how comprehensive this exercise was.
The deputy had also refused to answer questions in relation to his business activities in the Czech Republic.
Mr Lawlor now seemed to implicitly accept that he had not complied with the court orders and that he had not discovered the documents as required.
Mr Clarke said it seemed Mr Lawlor was now saying that perhaps there had been a wrong attitude on his part in refusing to answer questions at the tribunal and that there was now a change of heart on his part.
The proceedings continue today when Mr Clarke will conclude his submissions and Mr John Rogers SC will address the court on behalf of Mr Lawlor.