Denis O’Brien loses appeal against decision on Moriarty witness

Five-judge Supreme Court unanimously dismisses claim over breach of fair procedures

Denis O’Brien has lost an appeal appeal against a 2011 High Court decision. Photograph: David Sleator/The Irish Times

Denis O’Brien has lost an appeal appeal against a 2011 High Court decision. Photograph: David Sleator/The Irish Times

 

Denis O’Brien has lost an appeal against the High Court’s rejection of his claim the Moriarty Tribunal incorrectly restricted cross-examination of a key witness at its public hearings.

A five-judge Supreme Court on Tuesday unanimously dismissed the appeal in which the busienssman claimed breach of fair procedures by sole tribunal member, Mr Justice Michael Moriarty, by limiting the amount of time, and scope of the questions, which his lawyers could ask Danish telecommunications expert, Professor Michael Andersen.

Prof Andersen was managing director of the international consultants engaged by the Department of Communications in 1995 to assist civil servants in assessing six applications for the country’s second mobile phone licence, which eventually went to Mr O’Brien’s company, Esat Digifone.

The tribunal, set up to examine payments to politicians Michael Lowry and Charles Haughey, examined the awarding of that licence by Mr Lowry, then communications minister.

Mr O’Brien said a court declaration that fair procedures were not applied during part of the tribunal would have an effect on the public view of the tribunal’s report.

If he got such a declaration, he could consider moving to quash certain parts of the report which could have consequences for the issue of the tribunal’s costs, he argued.

The tribunal opposed the appeal, arguing the matter was moot as its report has been published without any challenge by Mr O’Brien to its contents.

In one of three separate judgments dismissing the appeal, Chief Justice Mrs Justice Susan Denham agreed it was moot but went on to find Mr O’Brien’s rights to fair procedures and constitutional justice had not been breached.

It became apparent Prof Andersen was available to give evidence, having previously declined to do so, some considerable time after the provisional findings of the tribunal were circulated to interested parties, she said.

The professor had indicated his availability was limited so it was necessary to indicate the time available to various parties to cross examine him, she said. The curtailment of time to Mr O’Brien’s lawyers to ask questions was clearly appropriate and took into account Mr O’Brien’s rights and the rights of other parties, she held.

While satisfied the issue as to the cross-examination of Prof Andersen was moot, the court still had discretion to hear the appeal and had done so, she said.

The High Court was correct in finding Prof Andersen had given evidence that, in his opinion, the tribunal’s lawyers were biased and also explained in detail what he meant, she said.

The High Court was correct in finding the most that could have been hoped for in cross-examination was for Prof Andersen to repeat himself and “perhaps gild the lily”, she added.

In his separate judgment, Mr Justice William McKechnie said the High Court correctly observed the right to cross-examine related to the right to cross-examine one’s accuser. In this case, Mr O’Brien sought to cross-examine a witness who not only was not an accuser but who previously gave evidence favourable to Mr O’Brien, he said.

The judge also found the issue was moot and did not find any exceptional circumstances for considering an appeal.

In a third judgment, Ms Justice Iseult O’Malley agreed the appeal was moot and said there was “no live controversy” affecting the appellant’s rights that requires to be resolved.

It became moot, in her view, not because of the acknowledged pressure on the Supreme Court lists but because the tribunal’s report was published in the absence of any application to restrain publication.

Her view was the court should not exercise its discretion to consider the merits of the appeal but, because the majority of the court felt it appropriate to do so, she also agreed, in any event, neither of the rulings at issue breached Mr O’Brien’s right to fair procedures.

Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton agreed with the Chief Justice’s judgment.

Businessman Denis O’Brien has lost an appeal against a 2011 High Court decision dismissing his claim the Moriarty Tribunal had incorrectly restricted cross-examination of a key witness at its public hearings.

A five-judge Supreme Court unanimously dismissed the appeal in which he claimed there was a breach of fair procedures by sole tribunal member, Mr Justice Michael Moriarty, to limit both the amount of time and the extent of the questions his lawyers could ask Danish telecommunications expert, Professor Michael Andersen.

Prof Andersen was managing director of the international consultants engaged by the Department of Transport, Energy and Communications in 1995 to assist civil servants in assessing six applications from the country’s second mobile phone licence, which eventually went to Mr O’Brien’s company, Esat Digifone.

Mr O’Brien had argued a declaration that fair procedures were not applied during part of the tribunal, which centred on payments to politicians Michael Lowry and Charles Haughey, would have an effect on the public view of the tribunal’s report.

If he got such a declaration from the Supreme Court, he could also consider moving to quash certain parts of the report and this could also have consequences for the issue of the tribunal’s costs, he claimed.

The tribunal had opposed the appeal arguing the matter is now moot as its report has been published and there has been no challenge by Mr O’Brien to its contents.

On Tuesday, in one of three separate judgments dismissing the appeal, Chief Justice Susan Denham said she would not interfere with the 2011 decision of the High Court’s Mr Justice John Hedigan.

She said there are exceptions to the general rule that the court would not hear a moot appeal but this was based on factors in the case and whether there are special and unusual circumstances.

In this case, the substantive appeal raised issues relating to the cross-examination of Prof Andersen in 2010 and the ruling by the tribunal on that matter in November 2010.

Evidence had concluded on this aspect of evidence and the tribunal’s final report was published in March 2011.

There had been no application to challenge the final report of the tribunal, she said.

She was satisfied the issue as to the cross-examination of Prof Andersen is moot.

However, she said, the court still had discretion to hear the appeal and had done so.

She found the High Court was correct that Prof Andersen had given evidence that in his (Andersen’s) opinion, the tribunal’s lawyers were biased and that he had explained in detail what he had meant.

The High Court was correct in finding the most that could have been hoped for (in a cross-examination) was for Prof Andersen to repeat himself and “perhaps gild the lily”, the Chief Justice said.

In his separate judgment, Mr Justice William McKechnie said he was also satisfied the issue was moot. There were also no exceptional circumstances for considering the appeal, notwithstanding mootness, and the therefore refused to entertain the substantive appeal.

In a third judgment, Ms Justice Iseult O’Malley agreed with the Chief Justice and Mr Justice McKechnie the appeal was moot. “There is no live controversy affecting the appellant’s rights that requires to be resolved”, she said.

Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton agreed with the Chief Justice’s judgment.