The response of Mr Michael Bailey of Bovale Developments to allegations made by Mr James Gogarty was "manifestly insufficient", Mr Gogarty's solicitors told the tribunal in correspondence, it was revealed yesterday.
Making an application that cross-examination of Mr Gogarty be deferred until oral evidence from Mr Bailey and others is taken, Mr Pat Hanratty SC, counsel for the tribunal, said Mr Gogarty's solicitors had found written replies given by Mr Bailey inadequate.
Mr Hanratty revealed that after consideration of Mr Bailey's statement of January 11th, solicitors for Mr Gogarty wrote to the tribunal suggesting that it would be "wholly inappropriate" for counsel for Mr Bailey and Bovale Developments to be allowed to cross-examine Mr Gogarty "until such time as Mr Bailey has furnished a supplemental written statement".
The solicitors, McCann Fitzgerald, said they would be objecting to cross-examination of Mr Gogarty until such a written supplementary statement is received. They also said that if such a written statement was received, it should be given to Mr Gogarty in time for him to issue instructions to his legal team.
Arguing that it was in order for Mr Bailey and others to give oral evidence before their counsel cross-examined Mr Gogarty, Mr Hanratty said the question of procedures at a tribunal has exercised the minds of judges in England.
Addressing Mr Justice Flood on the issue, he said: "there are a number of materials to which I would very briefly like to refer you. The first of those was the Royal Commission on Tribunals of Inquiry, which was done by Lord Justice Salmon in 1966." Mr Hanratty said Lord Justice Salmon had analysed the function, nature and procedure of a tribunal of inquiry in detail and had come up with six points or "cardinal principles". These were:
1. Before any person becomes involved in an inquiry, the tribunal must be satisfied that there are circumstances which affect him, which the tribunal proposes to investigate.
2. Before any person who is involved in an inquiry is called as a witness, he should be informed of any allegations that are made against him and the substance of the evidence in support of them.
3.(a) He should be given an adequate opportunity of preparing his case and of being assisted by legal advisers. (b) His legal expenses should normally be met out of public funds.
4. He should have the opportunity of being examined by his own solicitor or counsel and of stating his case in public at the inquiry.
5. Any material witnesses he wishes to be called at the inquiry should, if reasonably practicable, be heard.
6. He should have the opportunity of testing by cross-examination, conducted by his own solicitor or counsel, any evidence which may affect him.
Mr Hanratty said that in the case of 3(b) legislation in Ireland had in part dealt with this point. He said that what concerned the present tribunal was point 2.
While Mr Gogarty was a witness, he was at a disadvantage in that he was unsure what the counter-arguments to be put to him by counsel for other parties in cross-examination would be, because he did not know fully what those arguments were.
After instancing further legal decisions and opinions in support of his argument, Mr Hanratty said that "given the particular circumstances in which this inquiry finds itself, particularly with regard to the varying degree of co-operation which it has had and regrettably has not had, it should be flexible in its response and adopt a flexible approach which may be different to the approaches of other inquiries but which is an inherently fair procedure."
