Just when the Flood tribunal thought it had seen enough of the Four Courts, it seems that yet another High Court battle is looming. Not for the first time, this could pit the tribunal against the developer Mr Michael Bailey; this time, the issue at stake is access to Mr Bailey's accounts.
The chairman, Mr Justice Flood, is to hear submissions today on whether he should make an order directing Mr Bailey to produce this information. Mr Colm Allen SC, for Mr Bailey, indicated yesterday that he may challenge an adverse decision in the courts.
Mr Bailey and his brother Tom successfully challenged the tribunal last year on a matter relating to discovery of documents. However, the tribunal is on firmer legal grounds now and Mr Allen and his team could find the going a lot harder.
From the witness-box, Mr Bailey yesterday declined to give the tribunal permission to inspect his accounts. Citing legal advice, he said the demand was outside the tribunal's terms of reference.
Mr Des O'Neill SC, for the tribunal, had asked him to make available a list of all companies in which he was involved from 1989 on; the accounts of these companies, whether in Ireland or overseas; and details of his client account with solicitors Smith Foy, again from 1989 to the present. Mr Bailey had earlier indicated his willingness to provide at least a list of his companies, but changed his answer after a 20-minute break called for by his legal team. In arguing for this, Mr Allen adopted an interesting new plea on behalf of his client, saying Mr Bailey "didn't understand what he is being asked to do".
Yesterday's dispute illustrates the difference between this tribunal and the Moriarty tribunal operating from the top half of Dublin Castle. The Moriarty tribunal appears almost effortless in the way it gains access to the bank details of those linked to its investigations; in contrast, rightly or wrongly, Mr Justice Flood's smallest step is scrutinised, challenged and litigated by those under investigation.
The underlying issue here is co-operation. The tribunal has consistently complained about the Baileys' refusal to co-operate fully with its requests. Mr Bailey's statements were furnished at the 11th hour last January, yet the tribunal still said it was inadequate.
Mr Allen made the point yesterday that his legal team provided the tribunal with "25 level-arch files" of documentation, but the problem here, as with the 30,000 documents submitted by the Murphy group, is that the tribunal has no idea what bits are relevant as no index was supplied.
As Mr O'Neill said yesterday, the tribunal had been "submerged" with documents and as the chairman pointed out, the information supplied so far hasn't helped to locate the origin of the payments Mr Bailey claims to have made to Mr Gogarty.
As for Mr Allen's demand that the tribunal pose specific queries, that was "putting the cart before the horse", according to Mr O'Neill. How could the tribunal ascertain where the £162,000 finder's fee Mr Bailey says he paid to Mr Gogarty came from without first having all the account information to hand?
Mr Garret Cooney SC, for the Murphy group, opened his cross-examination of Mr Bailey with some straight talking. The £162,000 finder's fee that Mr Bailey says he paid to Mr Gogarty was in fact a "back-hander", he claimed.
Mr Bailey agreed this was a "private or secret" series of payments. He paid the money in cash because Mr Gogarty insisted he did so. Referring to the notebook in which are recorded handwritten references to payments totalling £30,000 to Mr Gogarty, Mr Cooney said this book was clearly used to record payments that were "off-the-books". Mr Bailey agreed. He didn't see anything wrong with it.
Mr Cooney pointed to what is probably the strongest piece of evidence supporting the "finder's fee" allegation. Mr Bailey's bank records for late 1989 show that of all the cheques written from his account, just two are recorded as "not found".
One of these is the £50,000 cheque Mr Bailey gave to Mr Gogarty that November. Mr Bailey said it was one of two post-dated cheques given as security while he paid the finder's fee in cash instalments. Mr Gogarty, who presented the unused cheque to the tribunal, says it was "hush money" to buy his silence on the payment to Mr Ray Burke.
However, the records show the cheque used to write this £50,000 payment, and the second "not found" cheque, follow each other sequentially. Nothing is known of the fate of this second cheque, but one inference is that it was given to Mr Gogarty and not used.
Mr Cooney said his client, Mr Joseph Murphy jnr, still insisted he talked to Mr Bailey by phone in June 1997, on the day Mr Burke was appointed to Cabinet. Mr Murphy says he was told Mr Bailey had had a three-hour meeting with Mr Burke and the Taoiseach, Mr Ahern, and that Mr Bailey suggested the two of them "buy off" Mr Gogarty by paying him £100,000.
Mr Bailey said he had no recollection of this conversation, or having made these remarks.