No plan to spring files on Gogarty, say lawyers

Lawyers for Mr Michael and Mr Thomas Bailey of Bovale Developments have told the Flood tribunal they do not intend, at least at this stage, to ambush Mr James Gogarty with new documentary evidence.

The assurance contained in correspondence between the tribunal and the Bailey/Bovale lawyers, Smith Foy and Partners with Mr Colm Allen SC, was revealed by Mr Justice Flood yesterday.

Mr Justice Flood had already-ruled on February 1st that if any material was to be put to Mr Gogarty during cross-examination it should have first been circulated to all relevant parties. Otherwise, Mr Gogarty may, if appropriate, take advice from his solicitors during his cross-examination.

Yesterday Mr Justice Flood revealed that on Tuesday last, two days before Mr Colm Allen SC for the Baileys/Bovale was due to begin his cross-examination of Mr Gogarty, 19 separate folders of documents were received at the tribunal offices from Smith Foy & Partners.

Recalling the event yesterday the chairman said the tribunal then asked Smith Foy & Partners to identify which documents would be put to Mr Gogarty during cross-examination.

In reply Smith Foy & Partners said last Wednesday that they did not intend "at this stage" to put any material to Mr Gogarty other than what had already been before the tribunal. But they were reluctant to identify the individual documents on which they would be relying, pointing out that "the element of surprise is an essential component of cross-examination".

It was also argued that the Baileys and Bovale should not be unfairly restricted in what they would introduce "when no such restriction was imposed on the cross-examination by JMSE", according to a letter Smith Foy & Partners wrote to the tribunal last Friday.

Solicitors for Mr Gogarty had requested an adjournment to allow them to consider the documents supplied by the Baileys and Bovale, and in their submission they relied strongly on Mr Justice Flood's ruling of February 1st.

Summing up yesterday, the chairman said there was no question of the Baileys and/or Bovale Developments being treated differently from any other party.

"The fact is that they have provided a very large volume of documents in the very recent past, and I am satisfied that fairness of procedures requires that any witness, including Mr Gogarty, would have a reasonable opportunity of considering any relevant document which has been produced or might be produced by any party", said Mr Justice Flood.

He then reiterated his February 1st ruling that unless for exceptional reasons and with his consent, "no document shall be put to Mr Gogarty unless that document has been included in the documentation furnished to the tribunal and made available for inspection by Mr Gogarty's legal advisers before 10 a.m. Monday, March 15th."

He also ruled that where counsel puts a document to Mr Gogarty in the course of cross-examination Mr Gogarty should be given an opportunity to consider such a document and any other related documents, as well as to consult with his legal advisers.