Businessmen Denis O'Brien and Dermot Desmond have failed in a High Court bid to stop senior counsel Michael McDowell from continuing to cross-examine a key witness at the Moriarty Tribunal.
Mr Justice John Hedigan ruled today that Mr McDowell was clearly not part of the tribunal and could not therefore be seen as having a perceived bias in that role as was claimed by the two businessmen.
The judge said it was clear to him Mr McDowell was retained by the tribunal as an independent counsel for the sole purpose of examining, on behalf of the tribunal, Danish consultant Michael Andersen who oversaw the awarding of the State's second mobile phone licence.
The businessmen claimed there was a perceived bias - known legally as objective bias - on behalf of Mr McDowell relating to his roles in public life over the last 15 years, including those of a TD, Attorney General and Tánaiste.
Mr Justice Hedigan said he did not need to consider the additional claim that by Mr McDowell's role infected the adjudicative function of the tribunal. This was because, the judge said, Mr McDowell was "clearly not part of the tribunal team" but independent counsel engaged on its behalf.
While it may well be that Mr McDowell had various roles in his past life which made him familiar with the subject matter being dealt with by the tribunal, and it may be that it was because of his long experience that this was the reason he was retained by the tribunal, it was the judge's view that the rules governing objective bias do not apply to counsel for the tribunal. Previous case law had dealt with objective bias but there was "nothing of that nature" in this case, he said.
The businessmen had sought leave to judicially review Mr McDowell's role and an injunction preventing him from continuing to cross examine Mr Andersen.
The court heard they only needed to establish a low threshold of an arguable case in order to be granted leave.
The judge said the grounds they put forward have no basis in law. They had not made out an arguable case and he was therefore refusing leave.
Counsel for the tribunal asked for costs of the hearing but lawyers for the businessmen asked for a stay on costs pending a possible appeal to the Supreme Court.