A High Court judge will rule tomorrow on whether to allow Joseph Murphy snr to challenge the Flood Tribunal's decision to admit into evidence an affidavit containing "serious and damaging allegations" against him.
After hearing submissions for Mr Murphy snr yesterday, Mr Justice Geoghegan said he needed time to consider the matter.
Mr Murphy, a director of the Murphy Group with an address at Mount Durand, St Peter Port, Guernsey, Channel Islands, is seeking leave to take judicial review proceedings to challenge decisions taken by the tribunal.
He wants to quash the tribunal's March 19th decision to admit into evidence an affidavit of Mr Liam Conroy, who died last July, which was sworn on March 20th, 1989 in connection with proceedings in the Isle of Man. He also wants a declaration that admitting evidence in the affidavit breaches his rights to fair proceedings and constitutional justice.
Yesterday, Mr Paul Gallagher SC, for Mr Murphy, said that while the affidavit contained damaging allegations, his client could not cross-examine Mr Conroy because he was dead. Mr Michael Fitzsimons said his firm, Fitzsimons Redmond Solicitors, represented the interests of the Murphy Group, together with the interest of Mr Murphy snr; his son, Mr Murphy jnr; Mr Frank Reynolds, managing director of JMSE and others who would be required to give evidence to the tribunal. Various Murphy Group companies had sold the lands described in the terms of reference of the tribunal.
Mr James Gogarty, who was a notice party to the present proceedings, was appointed joint managing director of JMSE Ltd, then known as George Milner Structural Engineers Ltd, in 1968, and sole managing director in 1969.
He resigned as managing director in May 1982 but continued to act as director of JMSE Ltd and other Murphy Group companies and remained active until his departure in 1989 in acrimonious circumstances, counsel said.
That acrimony manifested itself in a number of different proceedings instituted by Mr Gogarty against the Murphys and by the Murphy Group against Mr Gogarty. Some of those proceedings continued as late as 1994-95.
Mr Fitzsimons said Mr Conroy became a non-executive director of JMSE in 1982. He became chief executive of all Murphy companies in Ireland and the UK the next year. The bulk of the commercial activity was conducted in the UK. Mr Conroy's position was significantly more important than Mr Gogarty's, whose activities and responsibilities were confined to Ireland.
In 1987 the relationship between Mr Murphy snr and Mr Conroy deteriorated significantly and by 1988 Mr Murphy had lost trust in Mr Conroy, who was removed from his various positions, prompting considerable litigation between the parties.
One set of proceedings involved an application by Mr Murphy in the Isle of Man, seeking declarations concerning a trust of which Mr Conroy and members of his family were beneficiaries. Certain Murphy settlements had been created in the Isle of Man.
Mr Fitzsimons said the trustees were two companies, Armoy and Ashdale Ltd, both of which were Manx companies. Proceedings began in the Isle of Man to recover assets and secure declarations that a sub-trust created by Mr Conroy, known as the Little Trust, was invalid.
The initial claim was that the sub-trust had been created by the trustees without any authority, without any reference to the discretionary beneficiaries of the original trusts and in collusion with Mr Conroy as a fraud (in the legal sense) of each of the trusts.
The affidavit which was the subject of the present proceedings was sworn by Mr Conroy in the Isle of Man proceedings, Mr Gallagher said.
Mr Fitzsimons said Mr Gogarty had made allegations against the people Mr Fitzsimons represented at the tribunal. The first 25 paragraphs of Mr Conroy's affidavit purported to relate the history of his involvement with Mr Murphy snr and the Murphy Group. Mr Conroy made a number of serious allegations against Mr Murphy snr which had nothing to do with the tribunal's terms of reference.
Mr Fitzsimons said he was instructed by Mr Oakley, a solicitor who acted for Mr Murphy in the Isle of Man proceedings, that Mr Murphy's affidavit was never opened to the court in the Isle of Man. In an affidavit Mr Murphy snr had contradicted the contents of Mr Conroy's affidavit.
After Mr Conroy swore his affidavit and before settling those proceedings, Mr Murphy snr gave a copy of the Conroy affidavit to Mr Gogarty and asked him to help Mr Oakley in preparation for those proceedings.
Mr Fitzsimons said Mr Gogarty had a low opinion of Mr Conroy, which he had reiterated to the tribunal. Mr Oakley duly spoke to Mr Gogarty by phone and prepared a draft affidavit upon Mr Gogarty's instructions.
Mr Oakley later met Mr Gogarty in Dublin in April 1989 but Mr Gogarty was not satisfied with the draft affidavit and indicated he wished to have his draft considered by his own solicitors.
Mr Gogarty had told the tribunal that JMSE Ltd sought to make the settlement of Mr Gogarty's severance package from the group conditional on his swearing an affidavit supporting Mr Murphy snr in the proceedings involving Mr Conroy in the Isle of Man. This was disputed by Mr Murphy snr and JMSE Ltd.
It was accepted by all involved that Mr Conroy's affidavit contained serious and damaging allegations against Mr Murphy snr.