`Back-to-front' tribunal breaks the rules again

It is entirely consistent with practice at the Flood tribunal up to now that the chairman should decide to alter normal procedures…

It is entirely consistent with practice at the Flood tribunal up to now that the chairman should decide to alter normal procedures in order to facilitate a witness and allow the tribunal to get on with its work.

After all, isn't the tribunal being held "back to front" in order to facilitate one elderly witness, Mr James Gogarty?

Regarding Mr Justice Flood's exclusion of the media from the hearing of Mr Joseph Murphy snr's evidence in Guernsey next week, the chairman may have felt he had very little choice in the matter.

If he opened his doors to the media, Mr Murphy's medical advisers were highly likely to say that their patient would not be able to stand the stress and, he seems to think, they would prevent him giving evidence.

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Looming even higher in the chairman's mind must have been the prospect of Mr Murphy becoming ill in the witness-box.

His decision would seem to give the doctors an absolute veto over the appearance or not of a witness. Would the chairman have agreed to hear the evidence of Mr Gogarty behind closed doors, simply because a doctor in Clontarf said he couldn't take the strain of Dublin Castle?

The difference between the two cases, as Mr Justice Flood pointed out when this point was raised yesterday, is that Mr Gogarty, as a resident of Ireland, could be subpoenaed to appear before the tribunal. Mr Murphy cannot, and is offering to give evidence on a voluntary basis.

Guernsey, it appears, is a haven not only from taxes but also from the normal strictures of Irish tribunals.

At 82 years of age, Mr Murphy is too frail to travel to Ireland. He last came here in January but was hospitalised in the Blackrock Clinic.

It emerged yesterday that he was recently in hospital for what was described as "cardiovascular failure".

But his aides say he is desperately anxious to tell his side of the story, and in particular to rebut the allegations made by his peer and former right-hand man, Mr Gogarty.

They take issue with the portrayal in this column yesterday of Mr Murphy as a secretive millionaire who has never even met his legal team.

His solicitor, Mr Michael Fitzsimons, told the tribunal last week that neither he nor anyone else in his office consults with Mr Murphy. "Any communication from Joseph Murphy snr goes through Joseph Murphy jnr."

However, Mr Garrett Cooney SC, for the Murphy Group, pointed out that Mr Murphy had met his barristers on several occasions last January.

Right through this tribunal, his legal team has earned their crust by fighting to ensure the playing-pitch is as favourable to its clients as possible.

Repeatedly, the chairman and his lawyers have complained about the delays and the lack of co-operation from the company. The Murphys have repeatedly resorted to the courts to vindicate their rights, usually unsuccessfully.

Even yesterday, the row between the tribunal and the Murphy team over the production of documents was in full flood.

Dissatisfied with the files she had received from the Murphys, Ms Patricia Dillon, for the tribunal, even accused "somebody" of going through the files beforehand and removing key documents.

The Murphy legal team denied the charge, saying they "could not give what we do not have".

It is hard not to see the tribunal's stance on Mr Murphy's evidence as anything other than a capitulation to extreme pressure.

The presence or not of media in Guernsey will make no difference to the level of publicity; indeed, this week's controversy may ensure even more publicity than normal.

As Mr Richard Nesbitt SC, for The Irish Times, put it, the legislation governing tribunals maintains that hearings should be heard in public. The two limited exceptions, relating to the subject matter of an inquiry or the nature of evidence to be given, clearly do not apply here.

Journalists and lawyers know that a transcript provides an incomplete picture of the proceedings in a court or tribunal.

Bare words on a page tell them nothing about the demeanour of the witness, the manner in which he gives his answers, particularly the pauses before responses, or his composure under questioning.

To take a recent example, no one who was present in the tribunal this week is likely to forget the 15 seemingly infinite seconds it took Mr George Redmond to reply when he was asked if he had other sources of income other than his official salary.