Court rejects O'Brien appeal against tribunal

The Supreme Court has dismissed as having "no basis" a bid by millionaire businessman Denis O'Brien to restrain the Moriarty tribunal from calling economist Peter Bacon to give evidence in public about the procedures which led to the award of the State's second mobile-phone licence to Esat Digifone.

In the High Court last December, Mr Justice John Quirke had rejected Mr O'Brien's application, saying he could see no reason why the Moriarty tribunal should not be entitled to call professional witnesses to testify at public sittings. Should the tribunal not opt to call such witnesses, it should make them available for cross-examination, he said.

Mr O'Brien's appeal against that judgment opened yesterday before the five-judge Supreme Court, presided over by Ms Justice Susan Denham. Mr O'Brien was in court for the hearing, which lasted less than two hours.

After hearing submissions yesterday morning from Eoin McGonigal SC, with Gerard Murphy SC, appearing for Mr O'Brien, the court said it would rise for a short time. When it resumed, Ms Justice Denham told Shane Murphy SC, with Brian Murray SC, for the tribunal, that the court did not require to hear arguments from the tribunal side.

Having read the written submissions in the case and having heard oral submissions from counsel for Mr O'Brien, the judge said the court was satisfied there was no basis for the appeal and it would dismiss it and uphold the High Court decision.

There was no evidence the tribunal had acted irrationally and there was no basis for the court interfering in the tribunal's decisions and procedures.

The March 2003 report by Mr Bacon had confirmed a "tentative view" of the tribunal that a key expert report, which formed the basis for the decision to award the mobile phone licence to Esat in October 1995, "may contain a number of seriously fundamental flaws".

The report was by Michael Andersen, a management consultant with the Danish consultancy firm AMI, the firm retained by the government to provide expert assistance in the mobile phone licence competition.

The Moriarty tribunal is investigating whether Michael Lowry interfered in the mobile-phone licence competition and whether any such interference benefited Esat Digifone.