It was a case of the judge, the tycoons, the economist and the tribunal at Dublin Castle this week, writes Colm Keena, Public Affairs Correspondent.

THERE WAS a complicated battle going on in Dublin Castle this week involving businessmen Denis O'Brien and Dermot Desmond, the Department of Transport, Energy and Communications, former minister Michael Lowry, and the Moriarty tribunal.

The battle involved a number of fronts all of which concern the 1995 competition that saw Denis O'Brien and Dermot Desmond's Esat Digifone win the right to negotiate for the State's second mobile phone licence.

Ostensibly, the tribunal sat to allow Mr O'Brien's counsel, and those of other interested parties, to question economist Dr Peter Bacon about work he did as a consultant for the tribunal in the 2002 to 2005 period.

However the sitting also constituted an attempt by Mr O'Brien to turn the tables and put the tribunal "on trial" for a change.

Dr Bacon was engaged, unbeknownst to the other parties at the time, to assist the tribunal in its understanding of matters to do with the 1995 competition process that eventually selected Esat Digifone. He produced two reports for the tribunal, one in 1993 and another in 1995, both of which have been seen by The Irish Times.

The reports are pretty harsh. They outline how, for very good reasons, the bids for the licence were to be assessed quantitatively and qualitatively, so that a "robust" result could emerge from a complicated process.

However as the process proceeded, the quantitative element of the process was abandoned, because of difficulty with some of the data that was to be quantitatively evaluated. Dr Bacon was very critical of this decision and the expressed reason for the move.

It led to further downstream technical difficulties which, Dr Bacon said in the witness box, did not seem to have been considered at the time the decision was taken.

It also had the effect that it was no longer the case that a primary form of evaluation (quantitative) could be subjected to a sensitivity analysis by a second form of evaluation (qualitative).

Not only that, he said, but the team involved did not address the fact that the quantitative work conducted before its abandonment, gave a different result to that produced by the subsequent exercise.

The initial quantitative evaluation put Esat Digifone in third position. Persona, the consortium that has initiated a legal action against the State, came first.

However Persona subsequently fell to second place in the final report.

The flaws in the process were all the more critical, Dr Bacon said, because the final result was so close. "Even very minor alterations to the underlying calculations . . . are sufficient to make the result too close to call," he told the tribunal in his 2003 report.

In his evidence to the tribunal, he said the margins of error involved were "such that it was impossible, in our judgment, to see who won".

All of Dr Bacon's criticisms, if accepted by the tribunal, would be embarrassing for the State.

However the key point at this stage is that they do not of themselves say anything about an improper involvement by Michael Lowry in the competition process. Dr Bacon found the decision to drop the quantitative aspect of the competition "odd" and "strange" but that of itself doesn't say anything about any involvement by Lowry.

The facts of how the competition process evolved - or fell apart - as it progressed, forms part of the overall picture on which the tribunal chairman, Mr Justice Michael Moriarty, will have to make his findings.

An example of his thinking has already been given by him in a ruling in 2005.

The abandonment of the quantitative evaluation led to a meeting in Copenhagen in late September 1995, attended by civil servants Fintan Towey and Martin Brennan, and Michael Andersen, a Danish consultant working with the project team.

The men worked to adapt the process to the new situation and worked out a system that involved weightings being assigned to qualitative assessments. An overall ranking emerged.

A concern the judge identified in his ruling was that the other members of the team were not involved in this process.

Furthermore, before the ranking was conveyed to the rest of the team, it was communicated to Lowry. Also, the judge noted, there is some evidence that Lowry then asked that the process be accelerated.

Mr Justice Moriarty said one matter he would have to consider was whether Lowry's intervention may have made the officials reluctant to scrutinise weaknesses in the process.

All of this, of course, could be true without any subterfuge being involved.

During the two days of Dr Bacon's evidence, O'Brien's counsel Eoin McGonigal SC made it clear his client believe there was subterfuge involved - on behalf of the tribunal.

McGonigal complained that documents to which his client was entitled had not been produced when they should have been, and other documents he believes must exist - concerning the tribunal's dealings with Dr Bacon - are being said not to exist.

One example on which O'Brien's side has focused is a note taken by a tribunal solicitor during a meeting with Dr Bacon. The note was not disclosed to O'Brien's side back in 2005 when O'Brien went to the High Court and the Supreme Court over matters concerning Dr Bacon, even though the solicitor who took the note sat through the High Court hearing.

Mr Justice Moriarty has since said the failure to hand over the note was due to an error in the photocopying process.

O'Brien has sought to question the integrity of the tribunal. He sat through both days of Bacon's evidence and made prepared statements to the press afterwards on both days. In their questioning, counsel for Lowry and Desmond also asked Bacon about his relationship with the tribunal.

At one point McGonigal said: "This tribunal is a public tribunal, and this tribunal is failing to deal with the public issue as to what the internal relationship was between Bacon and the tribunal and it is difficult to see how anyone, anyone, can have confidence in any report which emanates from a tribunal where it is not open and up front."

John Coughlan SC, counsel for the tribunal, said however that what O'Brien's counsel was doing was "seeking to jettison what is happening at the tribunal."