Editing by Flood a 'cause for concern'

The Supreme Court has said it is “a cause of concern” that former planning tribunal chairman Mr Justice Feargus Flood had edited interviews and statements of a key witness.

The court said the testimony of James Gogarty was edited in a manner that cut out serious allegations by the official against at least four “prominent” persons, including a politician. Mr Gogarty died in 2005.

This material included some “extremely grave” claims of impropriety, was very relevant to the issue of the credibility of Mr Gogarty and was concealed by the tribunal “without justification”, Mr Justice Adrian Hardiman said.

The material should have been but was not disclosed by the tribunal to directors of Joseph Murphy Strucural Engineering (JMSE) for their defence before the tribunal of allegations by Mr Gogarty, the key witness against JMSE, relating to payments to former minister Ray Burke and former Dublin City Council manager George Redmond, he noted.

The material was only disclosed shortly before the hearing of High Court proceedings by Joseph Murphy Junior and Frank Reynolds, chairman and managing director of JMSE Ltd, and that company, against the tribunal.

In withholding that material, the tribunal knew, “as any lawyer must have known, they were gravely hampering the appellants in making their defence”, the judge said. “It is chilling to reflect that a poorer person, treated in the same fashion by the tribunal, could not have afforded to seek this vindication.”

Ms Justice Susan Denham also described as “a cause for concern” that the material was not provided to the JMSE side at the tribunal.

Mr Justice Hardiman said the discovered material showed Mr Gogarty apparently made statements to the tribunal or to others alleging “serious improprieties” against at least four other persons, one of whom had since died.

The most immediately relevant allegation was that Mr Gogarty claimed to know, from a named source, that money was paid in cash not just to Ray Burke but to another politician in connection with a named site and the two politicians had co-operated to bring about a desired result, he said.

He was not proposing to name the other politician, the site or the date but the relevance to matters before the tribunal was “obvious”. Either Mr Gogarty was telling the truth or not. The other persons against who allegations were made were not as prominent as the second politician but were well known persons in professional, commercial and political circles.

The judge stressed he had “absolutely no reason” to believe the allegations against those persons had any truth whatever to them and, given their constitutional right to their good name, he intended to presume the claims were false. However, that merely emphasised the importance of this material.

Mr Justice Hardiman further noted the tribunal had agreed before the court it had resolved every single conflict of fact against the JMSE side. However, it was important to note the JMSE side had chosen to challenge not the substantive findings by the tribunal against them, including of involvement in the making of corrupt payments, but only the finding on costs.