Media may challenge new plan to take testimony in private

Media organisations are considering a new challenge to a decision by the chairman of the Flood tribunal to hear the evidence of a leading witness, Mr Joseph Murphy snr, behind closed doors.

The Irish Times, RTE and other media organisations were last night consulting their legal representatives following Mr Justice Flood's decision yesterday to appoint himself as a commissioner to take Mr Murphy's evidence in private. At least one party is expected to challenge his decision in the High Court today.

At an extraordinary sitting in Guernsey, where Mr Murphy lives, the chairman said he would make a fresh order to set up a commission later this morning. His first order to this effect was struck down by the High Court earlier yesterday.

Mr Murphy would be placed at an unnecessary risk of death if he allowed his evidence to proceed in public, Mr Justice Flood said. This was after hearing evidence from the 82-year-old millionaire's GP. Mr Murphy, who lives about a mile from the conference centre in which the tribunal sat, did not attend the hearing, although his son, Joseph jnr, did.

Dr Curran told the tribunal that Mr Murphy faced "a very real and serious risk" of terminal heart failure if he were subjected to the stress of giving evidence in public. He outlined the parlous state of his patient's health: the list of ailments includes diabetes, heart failure, arthritis and brain failure.

In his ruling, the chairman pointed out that the High Court confirmed the entitlement of a tribunal to appoint a commissioner to take evidence where appropriate. However, Mr Justice Morris went on to point out that when the chairman originally set up a commission to hear Mr Murphy's evidence, he described it as "a public sitting of the tribunal".

This could only mean that its proceedings must be in public, Mr Justice Morris continued. Under the legislation, the press and public could only be excluded for reasons related to the subject matter of the inquiry or the nature of evidence to be given.

There was nothing in the medical evidence presented to the High Court to justify excluding the public, the judge ruled.

Today Mr Justice Flood will make a new order to set up a commission analogous to the commissions established by courts when they wish to take evidence from witnesses abroad, in hospital or other unusual situations.

This approach will leave the press in a worse situation than before. Last week the chairman proposed that the media would be supplied with copies of the transcripts of Mr Murphy's evidence on a daily basis. Now he says the evidence will remain private until it is submitted to the tribunal on its return to Dublin.

Mr Murphy's evidence is expected to take at least a week. Because of his age and frailty, the commission will sit for half-days only, with frequent breaks. Mr Justice Flood's ruling angered the Gogarty legal team, who described it as "bizarre" and "unprecedented".