Licence competition still casts long shadow

The 1995 mobile phone licence competition, won by Denis O'Brien's Esat Digifone, was the most valuable commercial competition run by the State to date and was the launch pad for O'Brien's rise to spectacular riches.

But right from the announcement that it had been won by Esat there were rumblings and grumblings and now, 18 years later, that continues to be the case.

In March 2011, following an exhaustive and frequently stormy inquiry by the Moriarty tribunal, the tribunal chairman, Mr Justice Michael Moriarty, not only found that O'Brien, despite his denials, had sought to confer a financial benefit on the then minister for communications, Michael Lowry, and that Lowry, despite his denials, had interfered with the licence process so as to secure the licence for O'Brien, but also that the two findings were connected.

Mr Justice Frank Clarke, in the Supreme Court, has said that were the chairman's findings to be established in a court of law (which they may yet be), they would be the most serious factual determinations since the foundation of the State.

While O’Brien and Lowry have been passionate in their stance that the findings are wrong, they have been stymied legally in terms of what they can do. In law, the tribunal’s findings are “sterile”, in the sense that they do not involve any fines or other punishments. The findings are the chairman’s opinion about a matter of public importance, and a way to challenge the findings seemed not to exist.

However, as Lowry made clear to this newspaper some time ago, he was long of the view that if the chairman refused him his costs, this would open a way for going to court. The costs order could not be said to be sterile, and Lowry could launch a challenge to the basis of the order.

It is understood the chairman has not as yet made an order in relation to O’Brien’s application for costs, which is likely to be for a figure higher than the approximately €8 million thought to be involved in Lowry’s case. When that order is made, O’Brien may use any order denying him all his costs, as an opportunity for having a go at the tribunal’s findings.

In his statement yesterday Lowry said the tribunal had engaged in “a horrendous breach of fair procedure”, has infringed on his constitutional rights as a citizen and has also trampled over his human rights.

These are broad brush-stroke charges. Lowry also mentioned more narrow points on which the chairman based his decision and which Lowry will now challenge. These other reasons for his being denied costs are, according to his statement, the chairman's view that Lowry deliberately delayed the tribunal's work; was involved in the falsification of the files of a UK solicitor; was involved in the making of an inappropriate payment to Northern Ireland businessman Kevin Phelan; and concealed an account Lowry had with Irish Nationwide in the Isle of Man. One of the tribunal's findings was that a payment from O'Brien to Lowry, ended up in this account.

These points do not include the key findings that Lowry interfered with the licence process, or that he was the recipient of money or financial benefits from O’Brien.

So exactly how much of the tribunal’s findings Lowry will be able to challenge using the costs order remains to be seen. Meanwhile the second-placed consortium in the competition, Persona, is suing the State; O’Brien is seeking to be joined to the action; and the Government , while contesting Persona’s case, is seeking to have O’Brien made liable for any damages that may arise should Persona win. The issue of the Esat licence award just refuses to go away.