THE MORIARTY tribunal has been conducting a line of inquiry based on a false premise, it was stated at the tribunal yesterday.
Gerald Hogan SC, for businessman Dermot Desmond, said it was now clear that the tribunal was told in 2002 that advice given by Richard Nesbitt SC, in 1996, covered a query that had been raised by the Department of Transport, Energy and Communications.
The department wanted to know if it could issue a mobile phone licence to Esat Digifone, even though Mr Desmond had become a shareholder and had not been mentioned in the original bid for the licence.
The Attorney General’s office sought advice from Mr Nesbitt and the tribunal has expressed the view that the advice was never furnished.
However, Mr Hogan said it was now clear from the evidence of Denis McFadden, a barrister with the Attorney General’s office, that the tribunal had been told in a private meeting in 2002 that the advice was given, and accepted by the Attorney General.
He said it was a “very surprising turn of events” that for the following seven or eight years a number of parties were under the impression that no such advice had been given. This led to a whole line of inquiry that was based on a false premise.
This included evidence being heard from Mr Nesbitt in 2009 during which tribunal counsel John Coughlan SC said it was only in recent times that Mr Nesbitt had said written advice he gave in 1996 addressed the issue. Mr Coughlan put it to Mr Nesbitt that his evidence wasn’t credible.
“Mr Nesbitts credibility was being impugned on the basis that he had only, so to speak, recently come up with this explanation,” Mr Hogan said. But this proposition should not have been put to the witness because Mr Nesbitt and others had given this explanation to the tribunal in 2002.
He said the parties before the tribunal were “entitled to an explanation as to how this state of affairs came about.”
John O’Donnell SC, for the Department of Transport, Energy and Communications, asked the chairman to state that the line of inquiry concerning the Nesbitt opinion was now “dead”.
Mr O’Donnell said the tribunal’s legal team had a view on the matter “and in some way that has made its way into your rulings. The tribunal team clearly have a view and they have never let go of that view. But you are the chairman. It’s your report”.
Mr Justice Moriarty said he had never purported towards infallibility but he still had a duty to inquire.