MORIARTY TRIBUNAL:BARRISTER RICHARD Nesbitt appeared as a witness before the Moriarty tribunal yesterday and said he had given written and oral advice to the Department of Communications in 1996 that the awarding of a mobile phone licence to Esat Digifone was legal.
Questioned by John Coughlan SC, for the tribunal, as to the credibility of his evidence, Mr Nesbitt said he had not entered the witness box to do other than to tell the truth. Mr Nesbitt appeared before the tribunal following the lifting by the Cabinet of legal privilege over advice given to the department in 1996.
The decision of the Cabinet followed the release of the tribunal’s provisional findings in relation to the granting of the licence to Esat Digifone.
One of the matters investigated by the tribunal concerns the arrival of Dermot Desmond’s IIU Nominees as a 20 per cent shareholder in Esat, in the period between Esat making a bid for the licence, and being actually awarded the licence in May 1996.
Mr Nesbitt said he had given written advice on the matter to the department on May 9th, 1996 but had also given oral advice during meetings in the department on May 14th and 15th, 1996.
A copy of Mr Nesbitt’s written opinion was given to the tribunal on a confidential basis in 2002 but privilege was not lifted.
Mr Coughlan said during 2003 the tribunal had on six occasions expressed its view that the written text did not include a legal opinion on the IIU matter. It was only recently that it had been told Mr Nesbitt was of a different view.
Mr Nesbitt, who acts for the department before the tribunal, said he had felt constrained because of legal privilege.
Mr Coughlan said that did not prevent him discussing the matter with his clients, or raising it privately with the tribunal.
“I thought I couldn’t talk to anybody about it, even sitting there as counsel,” Mr Nesbitt said. He said it was only earlier this year that it became clear he had evidence that could be of assistance to the tribunal.
He said he decided it would assist if he could give his evidence about his written opinion and about his recollection of giving his oral opinion. He accepted that others did not have a recollection of his giving oral advice but his recollection was “crystal clear”.
Mr Coughlan said Mr Nesbitt was “asking the tribunal to accept that your evidence is credible”. Mr Nesbitt said he had not gone into the witness box to give evidence that was not correct.
Mr Coughlan said he had to suggest that Mr Nesbitt’s evidence was not credible. Mr Nesbitt rejected this suggestion.