1. Mr. Murphy instituted Judicial Review proceedings in the High Court against the Tribunal on the 10th May 2016 seeking, inter alia, Orders of Certiorari quashing certain findings relating to himself, as were contained in the 2002 Second and Third Interim Reports of the then Sole Member of the Tribunal, Mr. Justice Flood, on the grounds that certain statements made to the Tribunal by Mr. Gogarty in the period 1999 to 2001 were either not disclosed to him, or disclosed in partly redacted format. The practice of withholding such statements in whole or in part was successfully challenged in 2005 by Mr. Owen O’Callaghan in proceedings taken by him against the Tribunal.
2. Since the decision in the O’Callaghan case the said practice in relation to the provision of documentation was discontinued by the Tribunal, and its inquiries post 2002. In particular, the Tribunal’s inquiries relevant to its 2012 Final Report were fully compliant with the decision of the Supreme Court in O’Callaghan. It was not legally possible to reopen those parts of the Tribunal’s pre-2002 inquiries affected by the O’Callaghan decision for the purposes of recalling witnesses following upon such statements (or parts thereof) being made available to affected parties. In particular, Mr. Justice Flood had, alone, heard evidence from the relevant witnesses and he had retired in 2003. Also, Mr. Gogarty died in 2005.
3. Consequently, the Tribunal on 18th September, 2015 invited Mr. Murphy (in addition to other affected parties) to make written submissions to it in relation to any parts of the 2002 Second and Third Interim Reports which they believed ought to be removed in the interests of natural justice. Submissions were duly made by a number of parties, including Mr. Murphy. In March 2016, and prior to the institution of the Murphy proceedings, the Tribunal removed parts of the Second and Third Interim Reports and posted amended versions of those Reports on its website (where they remain for viewing). It also advised the Clerk of the Dáil as to the alterations in the Second and Third Interim Reports.
4. While the Tribunal accepted entirely the decisions of the Superior Courts in the O’Callaghan case and immediately altered its procedures importantly, it is important to stress the fact that Mr. Justice Flood in adopting and following these procedures in relation to the inquiries relevant to his 2002 Second and Third Interim Reports did so in good faith and in the honest belief that such procedures were legally sound.
5. The Tribunal has taken comprehensive steps to remove from Mr. Justice Flood’s Second and Third Interim Reports parts thereof, including some adverse findings in order to ensure that parties / witnesses who did not receive certain documentation from the Tribunal to which they were entitled (in the period 1998 to 2002) are not disadvantaged or remain the subject of legally unsound findings. The versions of the Second and Third Interim Reports on the Tribunal’s website are the result of this now completed review process.