The chairman of the Moriarty tribunal has admitted to two “significant errors” in relation to the key matter it is currently investigating.
However, Mr Justice Moriarty said he would not accede to requests from a number of parties that he declare as “dead” the line of inquiry currently being pursued and that he immediately say that important provisional findings he made in 2008, no longer stand.
The tribunal is hearing evidence concerning the issuing of the State’s second mobile phone licence to Denis O’Brien’s Esat Digifone in 1996. At the time queries were raised because Dermot Desmond had become a 20 per cent shareholder in the consortium, even though he was not a shareholder when the licence was initially bid for.
The tribunal is investigating whether this query was dealt with in legal advice commissioned from Richard Nesbitt SC, in the weeks prior to the issuing of the licence. The officials dealing with the licence wanted to know if Desmond's involvement meant the licence could not legally be issued to Esat.
Mr Justice Moriarty issued confidential provisional findings in November 2008 which caused the Cabinet to lift the legal privilege that it had up to then maintained on the Nesbitt advice.
It has recently emerged that tribunal counsel met in private with Mr Nesbitt in October 2002, and were told that the legal advice dealt with the matter. They were also told at this meeting by Denis McFadden, an official from the office of the Attorney General, that his office believed the Nesbitt advice dealt with the matter.
A note of this 2002 meeting was first distributed to interested parties two weeks ago.
Following submissions made by counsel for the Dept of Transport, Energy and Communications, Mr Desmond and Mr O’Brien, Mr Justice Moriarty admitted that two “significant errors” had been made.
The first was in a ruling made by him in February 2008, in which he stated that the Attorney General had confirmed in writing that the Nesbitt advice did not deal with the matter of Desmond’s involvement. Mr Justice Moriarty did not explain how his mistake came to be made.
Mr McFadden said in evidence yesterday that the position of the Attorney General’s office has always been, and remains, that the advice, which dealt with a number of issues, dealt with the Desmond matter. He also said letters from his office to the tribunal, stated this was so.
The second error, the chairman said, was in relation to the “belated production” of the note dealing with the 2002 meeting. He said he could make observations about the misfiling of documents and change of tribunal solicitor, but he must accept that the document was not produced. The errors “must be taken on the chin and acknowledged.”
However he still had a duty to continue to inquire into the matter canvassed in his provisional findings, he said. He accepted the force of arguments made by Gerald Hogan SC, for Mr Desmond, and John O’Donnell SC, for the department, concerning the importance of the effect the Nesbitt advice had on the department’s civil servants, whether or not the advice was “explicit or perfect”. However he said he had to form his own view as to the scope of the opinion.
He said his final view would be “conditioned” in a number of ways. He noted that in a recent case taken by Hazel Lawlor against the Mahon tribunal, concerning the level of proof required in tribunals, the Chief Justice John Murray, had said there was a difference between minor matters and “matters of momentous consequence”.
He said the “upper end of the civil onus of proof” would be needed to come to the conclusion that had been objected to by various parties. This is understood to be a reference to his provisional finding on the legality of the issuing of the licence to Esat.
Another official from the Attorney General’s office, John Gormley, is giving evidence which supports the evidence of Mr McFadden.