Lawyers for the Murphy group will go to the High Court today to seek leave to challenge a decision by the Flood tribunal chairman to admit in evidence an affidavit of a former chief executive of the group.
The chairman yesterday made a further ruling that all proceedings in relation to the affidavit, which has been described as containing serious allegations about Mr Joseph Murphy snr, should be in public sittings of the tribunal.
Mr Michael Cush SC, for the Murphy group, said that his clients had indicated previously that the admissibility of the affidavit in evidence was a matter they intended to take to the High Court.
The (legal) papers had been drafted. They required updating in the light of that day's ruling but he would be ready to make an application to the High Court today.
The High Court application will be made ex parte, i.e. by the Murphy group only. If leave is given for a judicial review, then a date will be fixed and the full hearing will go ahead with the tribunal legal team present as defendants.
Yesterday the chairman said that once Mr Cush had taken the preliminary step in the High Court, the tribunal team would respond within 72 hours. It was a matter which should be determined quite quickly.
The affidavit was sworn by Mr Liam Conroy on March 1989 in unfair dismissal proceedings against the group. Counsel for Mr James Gogarty applied to have the affidavit admitted, and this was opposed by the Murphy side. On March 19th the chairman ruled that the affidavit was relevant and admissible.
Lawyers for the Murphy group then proposed a compromise and sought an order to the effect that the tribunal ought not to allow the public to be present when any witness gave evidence in relation to the contents of the affidavit.
The submissions on this application were heard in private last week.
Giving his ruling yesterday on this application, the chairman said he had given careful consideration to the submissions made by counsel and they did not seem to him to make out a case that the nature of the evidence to be given rendered it expedient in the public interest to hear it otherwise than in public.
In his view this was a public inquiry into matters of urgent public importance, and as such there must be a major reason why the public nature of the inquiry should be departed from.
Undoubtedly, the statements made in the affidavit could not be the subject matter of a personal cross-examination of the deponent, who was dead.
"Mr Murphy (snr), however, will have full access to the tribunal to give his version on oath in relation to the said allegations," the chairman said.
It was the duty of the tribunal to fairly assess Mr Murphy snr's evidence and to apportion to it the approbative value to which he, as a witness, was fairly and properly entitled.
After the ruling Mr Cush asked for a very short stay on the order as the High Court application was to have the evidence itself in private.
"If Mr Gogarty avails of an opportunity today to make reference in the course of his evidence to the contents of the application, then it renders entirely moot any application I might bring to the High Court," said Mr Cush. It was unfortunate that that day Mr Gogarty was to begin his examination by his own counsel, Mr Frank Callanan SC.
The chairman said that he would give a stay until 4 p.m. today. The High Court would then take over.
The chairman said Mr Gogarty's examination could proceed, leaving aside this one element.