FURTHER PRESSURE is expected to be put on the Moriarty tribunal this week after it confirmed to businessman Dermot Desmond that it has dropped certain confidential provisional findings concerning him that were issued in October 2008.
Lawyers acting for Mr Desmond were told on Friday the findings had been dropped, a move which it is understood brings to an end a threat from the businessman that he would take judicial review proceedings.
Up to now lawyers for third parties believed any approach to the courts on the provisional findings would be unsuccessful. This belief was because it would in effect be a challenge to something that the tribunal might in the future conclude, as against something it had already concluded.
However, some parties are now seeing the response to Mr Desmond as a precedent that has implications for future cases. Sources said further such cases are likely.
The exact findings that have been dropped are not known but they concern the extent to which the taking of a shareholding by Mr Desmond in Denis O’Brien’s Esat Digifone consortium, prior to it being awarded the State’s second mobile phone licence in 1996, meant the consortium should not have been given the licence.
Mr Desmond was not mentioned in the initial bid for the licence. When the Department of Communications learned Mr Desmond had a shareholding, it conducted a review of his financial standing and consulted the Attorney General’s office.
The provisional findings of Mr Justice Michael Moriarty included a finding to the effect that the department never got a direct response to the query put to the Attorney General’s office. However since the confidential findings were issued, the barrister that was consulted on the matter, Richard Nesbitt SC, and two officials from the Attorney General’s office, have given evidence that the query was responded to and that the answer was that the licence could legally be issued to Esat Digifone.
The tribunal has not yet announced when it will call Danish consultant Michael Andersen, who played a key role in the 1995 competition which led to Esat being selected as the consortium with the right to conduct exclusive negotiations for the issuing of the licence.
The tribunal’s marathon inquiry into matters concerning the former communications minister Michael Lowry, and matters involving Mr O’Brien, has three main elements.
These are the so-called money trail items, the licence competition and the ownership issue. Some sources say the tribunal has been considering issuing an interim report dealing only with the money trail issues, given the difficulties with the other main planks of the inquiry. The tribunal does not comment to the press on its private work.
Mr O’Brien has set up a website on which his views on the tribunal are expressed. The site, www.moriartytribunal.com, has recently put up a digital clock showing the mounting cost of the tribunal.
As of last night, it estimated the tribunal’s own costs to be €42.37 million.
It uses precedents from other tribunals to establish the likely total cost, including third-party costs, of the tribunal. That figure as of last night was €211.84 million. The digits on the clock change every few minutes. The tribunal was established by the Oireachtas in 1997.