The chairman of the Planning and Payments Tribunal, Mr Justice Flood, has refused permission to Mr Garrett Cooney SC for the Murphy group, to further cross-examine the Irish Times journalist, Mr Paul Cullen.
Mr Justice Flood said that "in view of the exculpatory nature of Mr Cullen's evidence to date, the only purpose in cross-examination would be to discredit him personally" and he added that he was not satisfied that he had sufficient information on which to make a complaint to the Garda.
He said he would provide relevant transcripts to the gardai for their consideration as to whether an investigation was warranted, but added: "I accordingly do not intend to take any further steps in this matter". The issue of Mr Cullen's report arose on Thursday last, when Mr Cooney told Mr Justice Flood that an article in that day's editions of The Irish Times contained information which was very similar to the contents of an affidavit made by a former Murphy group chief executive, Mr Liam Conroy.
The headline on the story read "Conroy affidavit believed to contain allegations about Murphy tax affairs".
Mr Cooney reminded Mr Justice Flood that the legal argument on the affidavit's public disclosure was being heard in camera. The judge had indicated that in the interim the affidavit should not be disclosed. However, Mr Cooney maintained that Mr Cullen's article must have been based on the affidavit and he had begun cross-examination of Mr Cullen.
Yesterday at the resumed hearing of the complaint by Mr Cooney, Mr Richard Nesbitt SC for The Irish Times and Mr Cullen, told Mr Justice Flood there should be no further cross-examination of Mr Cullen by Mr Cooney as Mr Cooney's concern over the leaking of the Conroy affidavit had been refuted by Mr Cullen last Thursday.
Mr Nesbitt also argued that as Mr Cooney was present when the cross-examination halted, inquiring into the journalist's sources, he should not be allowed to continue in this regard.
Mr Nesbitt said neither Mr Cullen nor The Irish Times legal team had sight of the Conroy affidavit and as such were at a difficulty in commenting on the relationship between it and Mr Cullen's article.
If there was a situation in which an investigation of contempt was necessary then the Garda were the proper people to carry it out and not counsel for the Murphy group, according to Mr Nesbitt.
There was, he insisted, a right of the press to report the news and to comment upon it.
However, Mr Cooney said it was "as plain as a pikestaff" that there had been a breech of Mr Justice Flood's order that argument on the production of the Conroy affidavit in open or closed session should be held in private session.
He insisted that the article's content, in using quotation marks for various phrases, was a clear indication that its author had knowledge of the affidavit.
Mr Justice Flood, however, decided that "the tribunal is not a vehicle for criminal investigation" and he was not satisfied that he had enough information to decide whether a criminal prosecution was necessary. Accordingly he would not ask the Gardai to conduct such an investigation but would make the transcripts of the proceedings available so the gardai could decide if such a prosecution was necessary.
