The Flood tribunal resumes today with the prospect of renewed legal arguments over the right to cross-examine Mr James Gogarty, and the possibility of a High Court attempt to resolve the issue.
Mr Gogarty resumes his direct evidence tomorrow and should finish before the end of the week. There is an urgent need for a solution to the cross-examination dispute, which may have to be found in the Four Courts, rather than Dublin Castle.
A move to the High Court would halt any further public sittings of the tribunal pending the judgment and a probable appeal by the losing party to the Supreme Court.
Last week, lawyers for the former minister for foreign affairs, Mr Ray Burke, and the two builders, Mr Joe Murphy and Mr Michael Bailey, signalled they would continue to press for the right to cross-examine Mr Gogarty immediately he concluded his direct evidence.
But tribunal lawyers are sticking to their stance set out in a letter to all parties on January 18th. This confirmed that persons who had not furnished in advance a statement of their evidence on a particular issue should not be entitled to cross-examine Mr Gogarty on that issue until after they have given their own oral evidence.
On Thursday, Mr Pat Hanratty SC, for the tribunal, said an alternative would be to have all witnesses give their direct evidence first and for cross-examination to take place after that. The tribunal submits it would be deferring - not denying - cross-examination.
During last week, when the issue arose, Mr Garrett Cooney SC, for JMSE, argued that any attempt to limit his cross-examination of Mr Gogarty would breach fundamental fair procedures. His arguments were backed by Mr Colm Allen SC, for Mr Bailey, who said his client had a right to protection of his good name.
Today, lawyers for the other parties are expected to reply to and oppose Mr Hanratty's submissions. If the chairman, Mr Justice Flood, rules in favour of the tribunal lawyers, it is likely other parties will take the matter to the High Court.