Flood criticises Allen's behaviour, says clients knew content of charge

A severe rebuke to Mr Colm Allen SC was delivered by Mr Justice Flood at the tribunal yesterday.

In delivering his judgment on issues that Mr Allen, representing the Bailey brothers and Bovale Developments, and Mr Joseph Finnegan SC, representing Mr Ray Burke, raised on Tuesday, Judge Flood said he had found Mr Allen's demeanour and tone "offensive".

He also said that he would not hesitate to revoke the right of any counsel to appear before the tribunal if, in his opinion, counsel's behaviour amounted to "a calculated attempt to interfere with the important work being carried out by this tribunal".

"This behaviour is not acceptable to me, and an apology ultimately offered does little to repair the damage caused by such utterances," he said.

In relation to the points raised by Mr Allen, Mr Justice Flood said it was incorrect to claim that Mr Bailey did not know the content of the allegations made against him. He said the "facts of the affidavit of James Gogarty sworn on October 12th, 1998, were circulated to Mr Allen's clients on October 20th, 1998.

"I have received no indication to suggest that the evidence intended to be adduced from Mr Burke is in any way different from the statement which has been already furnished to Mr Allen," he said.

The second issue raised by Mr Allen, that the tribunal should examine the planning history of the Forest Road lands, in Swords, Co Dublin, before proceeding further, was also struck down by Mr Justice Flood.

"As long ago as October 12th, 1998, I publicly stated my intention to take the evidence of James Gogarty out of the normal sequence. All parties were invited to make submissions to me with regard to proposed sittings to hear the evidence of James Gogarty on November 16th, 1998, and on November 10th, 1998, I delivered my ruling on the issue clearly stating that the evidence of James Gogarty and related evidence only would be heard.

"The tribunal will proceed to deal with all of the matters set forth in its Terms of Reference at the conclusion of the evidence relating to James Gogarty, at which time the precise history of the lands in question will be dealt with."

Mr Justice Flood also noted Mr Allen had "criticised the tribunal for an alleged failure on my part to provide an interim report to the Oireachtas". He added, however, that this was not factually correct as he had filed an interim report with the clerk of the Dail on February 26th, 1998. Mr Justice Flood also rejected the assertion made by Mr Allen that matters other than the complaints of James Gogarty were being investigated at this stage of the proceedings.

"Accordingly I conclude that there is no basis in fact for the contentions advanced by Mr Allen. I see no valid reason why he should not be in a position to deal with any of the issues arising from the evidence of Mr Burke which touch upon his client's interest."

In relation to concern expressed by Mr Finnegan, about the nature and scope of the examination of Mr Burke, Mr Justice Flood said documents furnished by the tribunal were supplied by Mr Burke, and it followed from the nature of the allegations against him that these documents must be examined. He ruled that Mr Burke's financial affairs from the date of the calling of the general election on May 25th, 1989, would be adduced as evidence.

Also included in Mr Justice Flood's delivery of his decision was a warning to all parties to respect the confidentiality of documents circulated this week, in relation to Mr Ray Burke's discovery of evidence.

He said he was satisfied the evidence of Mr Burke could be limited to dealing with the "Gogarty issues" without infringement to others. "Accordingly I will now proceed to hear the evidence of Mr Burke," he concluded.