Mr Justice Flood has agreed to delay the taking of evidence from Mr Joseph Murphy snr in Guernsey to allow time for a ruling in the High Court in Dublin about whether news media can have access.
The President of the High Court, Mr Justice Morris, is due to give a ruling this morning after yesterday's judicial review of Mr Justice Flood's decision to exclude the press from the hearing. The proceedings in Guernsey had been due to begin at about 10 a.m.
The application for judicial review was made by The Irish Times, the Examiner, RTE and Independent Newspapers.
The President of the High Court heard over six hours of legal argument yesterday. When it became clear that his judgment would not be available until this morning he asked Mr John Gallagher SC to contact the representatives of Mr Justice Flood in Guernsey, asking him to defer the hearing.
Mr Gallagher later told him that Mr Justice Flood agreed and would not start hearing evidence until 11 a.m. at the earliest. Mr Justice Morris said he would give his decision at 10.30 a.m.
Mr Richard Nesbitt SC, for The Irish Times and the Examiner, told the court that Mr Justice Flood did not have the jurisdiction to exclude the press and the public under the 1921 Tribunals Act. Section 2 of this Act specified that tribunals should be heard in public.
The only two grounds on which this could be varied was where the chairman thought it necessary in the public interest because of the subject matter of the tribunal or the nature of the evidence being given.
He said the reason given for holding the hearing in private was Mr Murphy's health. This did not relate to either of these specified reasons. Nowhere had Mr Murphy's doctor said that his health was so threatened by the presence of the press that he would not give evidence if it was there.
Mr Bill Shipsey SC, for RTE, said the press had a constitutional right to report on the proceedings, as the eyes and ears of the public. This was all the more so when the hearing was in Guernsey, as members of the public were very unlikely to take the trouble and expense to attend there.
Referring to the fact that Mr Justice Flood had said transcripts of the proceedings would be made available to the press, he said that there was some doubt that media reports based on such transcripts would be protected under the Defamation Act, as they would not be contemporaneous reports.
He said Mr Murphy could not dictate the way the tribunal was run. He should be prepared to give evidence on the same basis as everyone else.
Mr James O'Reilly SC, appearing for the public interest, stressed that Mr Justice Flood had said he was taking evidence on commission from Mr Murphy who was outside the jurisdiction and was not a compellable witness.
This was different from the regular proceedings of the tribunal, and the taking of evidence on commission normally took place in private. Mr Justice Flood's rights were different in his capacity as "the commission", which would report back to the central tribunal.
Mr Gallagher said Mr Justice Flood did have the right to exclude the press under the Tribunals Act, which gave him broad powers. The public had the right to an early conclusion of the inquiry set up by its representatives in the Oireachtas.
He also said the constitutional requirement that justice be administered in public did not apply, as a tribunal was not the administration of justice, but an inquiry into a matter of public interest.
At the end of the hearing, Mr Dan Herbert SC, for Mr Murphy snr, said that it had been inadvertently suggested by some of his colleagues that Mr Murphy wished to avoid publicity.
Mr Murphy snr had been here for the whole of the month of January waiting to give evidence and then he was taken ill. He had been overtaken by events.