Toiling through claim and counter-claim

"What are we doing here at this point in time?" Mr Colm Allen SC, counsel for the developer Mr Michael Bailey, asked relevantly…

"What are we doing here at this point in time?" Mr Colm Allen SC, counsel for the developer Mr Michael Bailey, asked relevantly, halfway through a turgid morning's evidence at the planning tribunal.

Mr John Gallagher SC, for the tribunal, had spent most of the session reading at breakneck speed a series of letters and affidavits concerning Mr James Gogarty's pension claim. Mostly, the 81-year-old witness sat mute in the witness box, a mere spectator.

By Mr Allen's calculations, just 45 minutes of the first 10 days of evidence at the tribunal had been taken up with "material and relevant" evidence. The rest of the time had been consumed with the "squalid row" between Mr Gogarty and his employers, Joseph Murphy Structural Engineering.

It was all a "profound waste of public funds and public monies", he said. If matters were to proceed so, the tribunal would undoubtedly "be here until next year". Was there not some way of "truncating the exercise"?

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He had a point, even if it did come out of the blue and just in time to feature prominently on the lunchtime news. Mr Gogarty has made clear just how important it was to him to secure an adequate pension for his wife and children, but how relevant is this to an inquiry into planning corruption?

Mr Gallagher's response for the tribunal is that this background information is needed to help establish the credibility of the witness. Thus, if it is found that Mr Gogarty's account of his dispute with JMSE is correct, it may be that his recollection of the disputed meeting with Mr Ray Burke will also be more credible. However, if his complaints about the pension are unfounded, his story about payments to Mr Burke also becomes less believable.

The problem is that Mr Gogarty's dispute with JMSE was both protracted and complex. He started thinking about retirement on reaching 65 in 1982 and was still in dispute seven years later.

He has kept copious documentation from this era and much of this has been laboriously read into the record. But this has encouraged counsel for JMSE to insist that other correspondence which it deems favourable to its side of the story should also be opened to the tribunal. And all this in the daily presence of about 30 barristers, many of whom will qualify for £1,350 each for a day's work.

Mr Garrett Cooney SC, for JMSE, said he shared Mr Allen's concerns. He blamed the problem on Mr Gogarty's lengthy affidavit, in which the witness had "vented his spleen" on many people in the company. But now that this evidence had been introduced, Mr Cooney said he would have to deal with it in cross-evidence.

Mr Justice Flood said that none of this would have arisen if some of the parties had provided the tribunal with more information. Mr Gogarty had been called a liar by counsel for JMSE, which, with Mr Bailey and Mr Burke, has been accused of providing "manifestly inadequate" statements about its involvement in the events under investigation.

Those who are criticising Mr Gogarty may not be "altogether holy or angelic", the chairman suggested.

And so the reading of the affidavits continued. And it looks set to continue for a number of days yet. By the end of yesterday's evidence, we had reached early 1990, by which time Mr Gogarty and JMSE were locked in claim and counter-claim.

Mr Gogarty claimed he had been promised a pension of £1 million by Mr Joseph Murphy snr, who had "very considerable funds" in Switzerland and the Isle of Man. On October 3rd, 1989, an agreement to provide a lump sum of £300,000 was concluded, but months later this had not been paid.

When Mr Gogarty placed a £700,000 cheque due from the ESB into a special account set up by his solicitor, the company accused him of misappropriating the money.

Mr Gogarty's pension agreement provided for the payment of the £300,000 from any one of the JMSE companies. However, according to Mr Gogarty, the company never informed him of its attempts to make this payment in the most tax-efficient manner. From correspondence, we learned of the company's attempts to come to an agreement with the Revenue Commissioners. "Behind my back", commented the witness.

The financial director, Mr Roger Copsey, proposed that the pension would be paid by Grafton Construction and Reliable Construction, two companies in the JMSE group. He told the Revenue that Mr Gogarty had been an unpaid employee and director of Grafton for about 20 years.

However, Mr Gogarty said he had never worked for, or been a director of, Grafton. It was all a "ruse", he claimed.

In any case, the Revenue rejected the proposed course of action. Only remunerated service could be taken into account.

In his affidavit, Mr Gogarty outlines his suspicions that the company would renege on their agreement. He says these suspicions were heightened by the fact that JMSE was selling so many of its Irish properties and lands at the time. Mr Murphy's intention was to liquidate these assets and move them to Jersey or the Isle of Man, he alleged.