Businessman Mr Dermot Desmond is seeking leave from the High Court to challenge the reading of the findings of the Glackin Report into the public record of the Moriarty Tribunal. He claims that the reading of the findings into the public record is damaging to his reputation.
Lawyers for Mr Desmond want leave to challenge this and some other procedures of the Moriarty Tribunal by way of judicial review.
Yesterday, Mr Justice Quirke said he wanted the tribunal put on notice of the application for leave and he adjourned the application to next Monday to allow lawyers for the tribunal respond.
The Glackin report was concerned with the sale of the Johnston Mooney and O'Brien site at Ballsbridge, Dublin, to Telecom Éireann and the involvement in that sale of two property companies which Mr Desmond was found to have an interest in.
Mr Bill Shipsey SC, for Mr Desmond, said yesterday his client had always disputed the Glackin report.
The court was told there already has been correspondence from solicitors for Mr Desmond with the tribunal about the introduction of the Glackin report before the tribunal but that the matter had not been resolved.
The Moriarty tribunal is inquiring into decisions taken by former minister Mr Michael Lowry leading to to the granting of the second mobile telephone licence to the Esat Digifone/Telenor/IIU consortium. Mr Desmond is involved with IIU Ltd.
Mr Desmond, in an affidavit yesterday, said the tribunal had previously acknowledged that it was not pursuing any allegations against him in its investigation of the granting of the second licence.
Notwithstanding that and the fact that his involvement in the consortium had no relevance to the tribunal's investigation, it continued to inquire into matters that placed him, not Mr Lowry, at the centre of its investigation, he said.
The court challenge was being brought on the grounds that the tribunal was presenting irrelevant material in a fashion that was potentially damaging to his reputation and was doing so without affording him fair procedures, said Mr Desmond.
Throughout its current inquiry, the tribunal, through its counsel, had repeatedly used pejorative language when making reference to him or IIU, he said. It reached the point where reference was made to the infamous Colombian drug dealer, Pablo Escobar, in the context of Mr Desmond being a member of the Esat Digifone consortium, on which occasion the tribunal chairman, for the the first and only time, did intervene.
(At the tribunal, the chairman stressed the inquiry was not drawing any analogies between Mr Desmond and Escobar.) Mr Shipsey said the tribunal was supposed to be inquiring into whether any payment to Mr Lowry led to the awarding of the licence. In fact, the manner in which the matter was being pursued seemed to be more directed to the process leading to the awarding of the licence rather than to Mr Lowry's involvement.
The manner in which the Glackin report was introduced and read into the records of the tribunal was causing concern to Mr Desmond. No notification had been given to him that it was going to be introduced.
Among reliefs being sought by Mr Desmond is a declaration that the tribunal has acted in breach of the principles of natural justice and fair procedures in failing to provide him with notice of examination of witnesses pertaining to his involvement in the consortium granted the second mobile phone licence.
He is also seeking a declaration that the tribunal has acted ultra vires (outside its powers) in pursuing inquiries of witnesses as to his suitability to be a member of the successful consortium for the granting of the licence.
A further declaration is being sought that the tribunal has acted in breach of fair procedures in permitting references to be made to the report of Mr Glackin into the affairs of Chestvale Properties Ltd and Hoddle Investments Ltd in the public examination of civil servant Mr Fintan Towey.
He is also applying for a a declaration that the examination of Mr Towey and another civil servant, Mr Martin Brennan, on the contents of the Glackin report is outside the powers of the tribunal. Mr Towey and Mr Brennan were members of the project team set up to evaluate applications for the second licence within the Department of Communications.
It is submitted on behalf of Mr Desmond that the findings of Mr Glackin represent his opinions and do not constitute facts as found by a court of competent jurisidiction.
They were opinions which were critical of Mr Desmond and, it is claimed, he is entitled to be afforded fair procedures in respect of their introduction before the tribunal.