For the second time since the tribunal began hearing evidence, its chairman, Mr Justice Moriarty, has found himself in a difficult position in relation to witnesses and health matters.
In the case of Mr Charles Haughey he decided, against the advice of Mr Haughey's doctors, that the former Taoiseach should continue to give evidence, albeit in private. Two days after Mr Haughey finished giving evidence he collapsed at home and almost died.
Now Mr Justice Moriarty is embroiled in a public row with Mr Denis O'Brien - and his family - concerning the judge's response to Mr O'Brien's wish to be with his wife at the current time. In a no-holds-barred radio interview yesterday Mr Denis O'Brien snr said his son found himself at the centre of a McCarthy-type "witch-hunt" and a developing "inquisition". Mr Haughey has also used the latter word in relation to the tribunal.
What seems to have most upset the O'Brien family are comments made by Mr Justice Moriarty last Friday after Mr Eoin McGonigal SC, for Mr O'Brien, described complications with Ms Catherine O'Brien's pregnancy which had developed the day before. These complications had prompted Mr O'Brien to fly to London. (Ms O'Brien has had her child delivered in a London hospital. The family live in Portugal. Mr O'Brien is a tax exile.)
Responding to Mr McGonigal's submission, Mr Justice Moriarty said: "Obviously I must accept what I am told by counsel as having been recounted to him in good faith." Yesterday, Ms O'Brien's counsel, Mr Garrett Cooney SC, said this had been interpreted by her as meaning the judge had been sceptical about the whole matter.
The family has expressed concern about intimate matters being publicly aired. However, in correspondence, the tribunal solicitor, Mr John Lawless - responding to an allegation contained in a letter from Mr Owen O'Connell, managing partner with William Fry solicitors - said it was not the tribunal which decided last Friday that details of Ms O'Brien's medical condition be aired in public.
Correspondence read out noted that in the days leading to the birth Ms O'Brien was staying in a London hotel alone awaiting the time of delivery of her child. During May her husband was heading a consortium trying to buy Eircom and for "some considerable time" he could not travel to Portugal to see her. At one stage he cancelled a private meeting he was due to have with the tribunal's legal team because of Eircom commitments.
Now, following the birth of a baby girl on Saturday night, Mr O'Brien wanted to spend some time with his family. At first he wanted to take two weeks, but he has now agreed to return to the witness-box next Monday. The tribunal wanted Mr O'Brien to return yesterday but, as Mr Justice Moriarty observed, Mr O'Brien lives outside the State and the tribunal would be wasting its time making an order for his appearance.
The judge took issue with a letter from Mr O'Connell to the tribunal in which the solicitor accused the tribunal of being biased against his client. He said this was the first time such an allegation had been made against him in his almost 15 years as a judge. He was, he said, "not amused", and he asked legal practitioners, when writing letters, to reflect not merely on their duty to their clients but also to the "institutions of this State".
It was the plan that Mr O'Brien would be heard in relation to the matters now being inquired into, and other witnesses would then follow. This is still the plan and so everything must now await Mr O'Brien's return to these shores.
The judge is anxious that relations between the tribunal and one of its most crucial witnesses in the current inquiry be salvaged. Mr O'Brien is a key figure in an inquiry into the largest commercial decision ever made by the State.
The tribunal continues its work in private. Mr Justice Moriarty said some of the material which has been gathered recently in this way "has transpired to be favourable to versions of events advanced by Mr O'Brien". He did not expand on the point.
