IT WAS clear from the outset, and especially once Mr Gogarty took the stand, that the Flood tribunal faced a difficult task. But recent events which have culminated in two of Ireland's most eminent lawyers being at loggerheads over the fairness of the proceedings are particularly unfortunate.

It is imperative, both for the viability of this tribunal and for the sake of legal relations between judges and counsel generally, that this impasse be resolved as quickly and as amicably as possible.

The conduct of legal proceedings is governed by certain conventions which have served the system well but which have their moments of fragility. It would be unhelpful at this point to comment on the substance of the dispute, but some of the issues at stake can be clarified.

The purpose of a tribunal, unlike a court, is not to decide on guilt or liability. It is solely to make findings of fact and, where appropriate, to make recommendations. However, because certain individuals may be adversely affected by the findings, if only through damage to their reputations, tribunal proceedings must be conducted fairly.

The governing principles, known as the rules of natural justice, are twofold: nobody should be a judge in his own case, and both sides must be heard. The first of these encompasses the rule against bias which means that a judge or other decision-maker should have no material or personal interest in the outcome of the case, and should have no prior views or opinions as to what the outcome should be.

The law goes further than this. Judges will rarely be actually biased in any of the ways just mentioned. But it is considered equally important that there should be no appearance of bias; justice must not only be done but be seen to be done.

For this reason, the superior courts have sometimes quashed decisions on the ground that a reasonable person in the place of the aggrieved party might be forgiven for thinking that bias had occurred.

One of the leading judgments was delivered by Mr Justice Flood himself in the case of O'Reilly v Cassidy (1984) in which it was alleged that one side in a Circuit Court licensing case was not given adequate time to consider certain documents and that the other side was represented by the circuit judge's daughter.

As Mr Justice Flood pointed out in that case, there was no evidence that the circuit judge was actually biased, but justice should be seen to be done. He therefore quashed the Circuit Court decision.

Likewise, in a case concerned with the availability of information on abortion services in England, it was held by the Supreme Court that Miss Justice Carroll of the High Court should have disqualified herself. This was on account of a submission she had made to the Taoiseach in relation to the X case in her capacity as chairwoman of the Commission on the Status of Women. Again, the Supreme Court stressed there was no actual bias involved, but that judges had to be careful to avoid the appearance of bias.

The gist of Mr Cooney's complaint in the present tribunal appears to be that Mr Gogarty's habit of wandering from the point while answering questions and his occasional failure to answer questions directly may prove prejudicial to those, such as Mr Cooney's own clients, who are affected by Mr Gogarty's allegations.

This is indeed a serious concern. Were these proceedings in the form of criminal trial before a jury, they might have to be abandoned by now because of certain statements made from the witness box. The fact that this is a one-person tribunal does not diminish the obligation to abide by the rules of natural justice.

That leaves the chairman between a rock and a hard place. His primary function is to assess the evidence to make findings of fact. He must also ensure that the proceedings are conducted fairly and in a manner that will produce evidence of the highest probative value.

On the other hand, because the proceedings are conducted largely in an adversarial fashion, he must allow counsel as much latitude as possible to ask the questions they consider most useful and appropriate for extracting the truth.

IF THE chairman were constantly to interrupt the proceedings to admonish a witness who failed to abide by the conventions of cross-examination, he would risk being accused of excessive intervention. Indeed, court decisions have occasionally been quashed on appeal because of such intervention.

Mr Justice Flood has quite properly intervened on a number of occasions when he saw the need to do so. Counsel for some of the parties now seem to be demanding more drastic action. Exactly what the chairman can do with a frail 81-year-old witness is difficult to say.

The chairman's task and that of counsel are rendered all the more arduous because of Mr Gogarty being one of the more difficult witnesses to appear before any court or tribunal in this State for quite some time. We normally think of a difficult witness as being an unco-operative one. The apparent problem with Mr Gogarty, on the other hand, is his excessive zeal to be co-operative.

Having said all this, it is important, if the tribunal is to proceed, that the rules and conventions governing the tendering the oral evidence be strictly observed. Under these rules, a witness is questioned by counsel but gives his answers to the judge or tribunal as the case may be.

It is wholly unacceptable that any witness, while giving evidence, should make personal remarks to counsel by referring, for example, to the fees they may earn or, worse still, by casting aspersions on the client represented by counsel. If the witness feels he is being unfairly treated, he should express his grievance to the judge or tribunal.

These rules are not mere legal niceties. They have been developed over time as providing the best mechanism for eliciting reliable evidence. If counsel is not able to ask a series of questions and receive direct answers to them (even if the point of the questions is not immediately obvious to witnesses or bystanders), it will be impossible to construct an argument for final submission to the tribunal.

Mr Justice Flood is conducting this tribunal with great dedication, expertise and humanity. It would be most unfortunate if, because of the way in which a key witness is answering questions, the proceedings now had to be interrupted or brought to a halt.

Tom O'Malley is a lecturer in law at NUI, Galway