Findings challenged as tribunal reopens


ANALYSIS:A preliminary finding of the Moriarty tribunal chairman is being tested in open session, writes COLM KEENA

THERE WAS something akin to a school reunion atmosphere in Dublin Castle yesterday as the cast of lawyers and others who attended the sittings of the Moriarty tribunal’s marathon mobile phone licence inquiry during the middle years of this decade reassembled in George’s Hall.

There were 25 lawyers in attendance, the fees of most of whom will end up being funded by the taxpayer.

The tribunal has entered new territory, not just for it, but for tribunals generally.

The chairman, Mr Justice Michael Moriarty, issued his preliminary findings in November last, and interested and affected parties have responded.

The new development is that this has not happened solely by way of confidential correspondence.

Fresh evidence is being heard to allow people adversely affected by the provisional findings to argue against them.

Challenging the findings in this way, of course, involves testing the quality of Mr Justice Moriarty’s judgment in his preliminary findings, and doing so in full public view.

The specific findings that led to yesterday’s sitting were not spelled out but their general jist was evident from the proceedings. They involve the actions of civil servants in the department of transport, energy and communications in April 1996, when Esat Digifone, which had won the right to exclusively negotiate for the State’s second mobile phone licence the previous Autumn, was coming close to being finally issued with the licence.

The various consortiums that had bid for the right to hold exclusive negotiations were asked to give “full ownership details of the proposed licensee” when they entered the competition.

Esat Digifone, founded by businessman Denis O’Brien, said it would be 40 per cent owned by O’Brien’s Communicorp group, and 40 per cent owned by Norwegian group Telenor. The remaining 20 per cent would be placed with four named institutional investors, it said.

However, in April 1996, as the department was preparing to issue the licence, it was told the institutional investors had been replaced by Dermot Desmond’s IIU Nominees Ltd.

The civil servants involved in the process sought legal advice as to whether the licence could be issued to Esat, given the divergence between its shareholding then and the intended shareholding outlined in the original bid.

In time, the licence was issued. The tribunal has made adverse findings against the department related to this. The legal advice furnished to the department came from Richard Nesbitt SC, a member of its legal team at the tribunal.

The department is of the view that Nesbitt’s advice covered the shareholding issue, and was to the effect that the changes in shareholding should not prevent the licence being issued.

The tribunal appears to have taken a different view – that the advice did not cover the shareholding issue.

The tribunal is going to hear the views of the key civil servants involved: John Loughrey, Martin Brennan and Fintan Towey.

However, John O’Donnell SC, for the department, argued strongly yesterday that Nesbitt should also be called. Mr Justice Moriarty said he was loath to go down such a route, but would do so if he thought justice required it.

O’Donnell’s submission was full on. He said the tribunal was wrong to believe Nesbitt had not advised the department that it could issue the licence. He wanted Nesbitt called and described the tribunal’s stance as “unfair” and potentially unjust.

“We cannot and do not understand why the offer [from Nesbitt] to give evidence is to be ignored.”

The tribunal appeared to be determined to “shut out” Nesbitt and this was a breach of his client’s right to a fair hearing, he said. “The tribunal has repeatedly contended it has no agenda and would act fairly” but if it did not call Nesbitt, this would prejudice the department and the Civil Service generally, O’Donnell said.

This was strong language for the State against its tribunal and is presumably a result of the nature of the preliminary findings.

The department claimed legal privilege over Nesbitt’s written advice up to March of this year when, in response to the provisional findings of the tribunal, the Cabinet ruled that the privilege should be waivered.

The issue is further complicated by the fact that the civil servants say that as well as getting written advice, they also met with Nesbitt.