Court reserves judgment on O'Brien plea

The High Court has reserved judgment on an application by 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, Mr O'Brien's former company.

Mr O'Brien claims a report prepared by Mr Bacon about the evaluation process - which led to the award of the mobile phone licence to Esat in 1995 - does not constitute evidence and is inadmissible before the tribunal.

In judicial review proceedings, Mr O'Brien is also seeking an order directing the tribunal to take steps via the Danish courts aimed at compelling Michael Andersen - a management consultant with the Danish consultancy firm Andersen Management International (AMI) - and other personnel with AMI to give evidence to the inquiry. Mr Andersen and AMI were retained by the Government to provide expert assistance in the mobile licence competition.

Mr O'Brien claims the evidence of Mr Andersen and AMI is "absolutely essential" for the tribunal to properly carry out its inquiry. The court has heard the tribunal had indicated in correspondence in June 2005 it believed there was "no realistic prospect" of compelling Mr Andersen to give evidence either here or in Denmark.

In July 2005, the tribunal told Mr O'Brien it did not believe Mr Andersen's unavailability would preclude the tribunal from proceeding with its inquiry.

The court was told Mr Andersen has declined to give evidence to the inquiry unless he is given an indemnity by the government against any claims that might arise from his evidence. No such indemnity has been offered.

Mr Justice John Quirke began hearing the challenge by Mr O'Brien on November 22nd. As well as the orders in relation to Mr Bacon, Mr Andersen and AMI, Mr O'Brien also wants a declaration that a delay of 18 months in completing the evidence given to the tribunal by Tony Boyle of Persona, an Irish consortium, which was runner up in the mobile licence competition, breaches Mr O'Brien's right to cross-examine. In opposing the application, the tribunal has denied any breach of fair procedures. It pleaded that a first report of Mr Bacon's was used to ensure that lines of inquiry were not without foundation.