Tribunal sought security for Gogarty

The chairman of the planning and payments tribunal, Mr Justice Flood, met the chief witness, Mr James Gogarty, at Mr Gogarty's home in January last year.

Giving his ruling yesterday on a number of submissions raised by counsel at the tribunal, Mr Justice Flood said he had travelled to Mr Gogarty's home in the presence of a tribunal counsel because he considered it appropriate in the context of Mr Gogarty's health.

The purpose of the meeting was to hear Mr Gogarty's application for representation at the tribunal. While he was able to grant representation, Mr Justice Flood said, he made it clear "this did not constitute an automatic entitlement to an award of legal costs".

Mr Justice Flood acknowledged that the tribunal did request the Garda Commissioner to make "appropriate security provision for Mr Gogarty, and the Garda Commissioner did so". However, he insisted he had not interviewed Mr Gogarty and the tribunal made the decision to request security independently of Mr Gogarty and the Garda "with a view to having Mr Gogarty give evidence at the tribunal".

Mr Justice Flood said these matters had been the subject of submissions by Mr Garrett Cooney SC, for the Murphy Group of companies, but he, Mr Justice Flood, was not satisfied that they were a proper matter for disclosure.

Dealing with objections to the sequence of events, particularly the hearing of evidence from Mr Gogarty before an opening statement from counsel for the tribunal, Mr Justice Flood said "it is plain common sense that Mr Gogarty's evidence should be heard in public" and added this "means that the tribunal had to adduce this evidence at the earliest opportunity".

"The tribunal does not accept, however, that its decision to hear Mr Gogarty's evidence in public violates the constitutional rights of the interested persons," the judge concluded.

On the subject of disclosure of documentation, Mr Justice Flood said the tribunal had three classes of documentation.

The first was that already circulated to the appropriate interested persons. This was documentation that the tribunal considered relevant and which might be alluded to by Mr Gogarty in evidence. Any such information would be made available to the appropriately interested person.

The tribunal had also included in the disclosed material other documentation that "may possibly have relevance" to the tribunal. Interested parties, said Mr Justice Flood, would still have to establish a credible basis for the introduction of this documentation as evidence.

The third category of documentation was that which the tribunal felt should not, "in the absence of a persuasive justification to the contrary", be disclosed. In these circumstances the documentation remained confidential.

However, in limited instances where interested parties had made a clear and compelling case for sight of documents, the legal representatives of the parties had been permitted to inspect the files under strict supervision.

"In each case this inspection has occurred only after the person who provided the documentation concerned agreed to a waiver of confidentiality limited to this purpose," said the judge.