A HIGH Court judge has halted an action by businessman Dermot Desmond which was aimed at setting aside High Court and Supreme Court decisions rejecting complaints by him about certain conduct of the Moriarty tribunal.
The millionaire businessman had brought proceedings seeking declarations that the High Court, in 2003, and the Supreme Court, in a judgment on a 2004 appeal, were misled by reason of fraud on behalf of the tribunal.
The tribunal was set up to inquire into payments to the late taoiseach Charles Haughey and to former Fine Gael minister Michael Lowry. It had applied to have Mr Desmond’s action struck out on grounds it was frivolous, vexatious, bound to fail and an abuse of the court process.
Yesterday Ms Justice Elizabeth Dunne said she was not satisfied Mr Desmond’s case, taken at its height, had alleged fraud in the true sense or that his statement of claim disclosed a reasonable cause of action. His case was one that must fail, she said.
Mr Desmond’s proceedings arose out of previous separate judicial review proceedings brought by him against the tribunal over its use of the Glackin 1993 report concerning the ownership of the Johnston, Mooney and O’Brien site in Ballsbridge, Dublin.
The Glackin report made findings critical of Mr Desmond.
When dealing with the matter of the awarding of the first mobile phone licence to Esat Digifone, as it related to Mr Lowry, the tribunal heard evidence from John Loughrey, secretary of Mr Lowry’s department at the time, who said he had read the Glackin report and was aware of its criticisms.
Arising out of the use by the tribunal of the Glackin report, Mr Desmond brought judicial review proceedings claiming the tribunal had not afforded him fair procedures. He argued the report was not relevant and that inadequate notice about the likelihood of witnesses being examined about it meant his ability to defend himself was compromised.
The High Court dismissed those proceedings saying the tribunal was entitled, if not obliged, to investigate how the evaluation team for the mobile phone licence was under the erroneous impression as to the true ownership of the consortium behind Esat.
The evaluation team was under the impression certain financial institutions owned part of Esat when Mr Desmond had actually acquired that particular interest just a month before the licence was issued in October 1995, the High Court noted in its judgment.
The tribunal therefore needed to investigate if Mr Desmond, or investment firm IIU, which was beneficially owned by him, had avoided the evaluation process, the court found. The tribunal had also to inquire into whether this was the result of any intervention by, or exertion of influence by, then minister Lowry, the court also said. The Supreme Court, on appeal in 2004, agreed with the High Court and dismissed Mr Desmond’s case.
Yesterday Ms Justice Dunne said there was “simply nothing” in Mr Desmond’s pleadings such as alleged fraud in the true sense so as to satisfy the requirement for setting aside the two courts’ judgments on grounds of fraud.