THE CHAIRMAN of the Moriarty tribunal did not accept sworn evidence given by senior counsel Richard Nesbitt last year, the tribunal heard yesterday.
Mr Nesbitt gave evidence in July 2009 that written legal advice he gave the attorney general’s office in 1996 covered the involvement of Dermot Desmond’s IIU Ltd in the Esat Digifone consortium.
He also said he gave oral advice at the time, to the effect that the State’s second mobile phone licence could be issued to Esat, despite the arrival of IIU as a 20 per cent shareholder in the period since the bid for the licence was submitted.
He said he had a “crystal clear” recollection of this. John Coughlan SC, for the tribunal, put it to him that his evidence was “not credible”.
Yesterday, John O’Donnell SC, for the Department of Transport, Energy and Communications, said the chairman of the tribunal, in confidential provisional findings issued after Mr Nesbitt’s testimony, “made clear the evidence of Mr Nesbitt was not accepted.”.
Mr O’Donnell was putting questions to Denis McFadden, a barrister with the Attorney General’s office. Mr McFadden said he recalled receiving the oral advice from Mr Nesbitt and that Mr Nesbitt’s written advice also dealt with the IIU matter.
“That to the best of my knowledge has always been the view of the Attorney General’s office and the Attorney General.”
The attorney general at the time was Dermot Gleeson SC.
Legal privilege was asserted by the State over the written advice up until the main provisional findings of the tribunal chairman were issued in October 2008.
This was the first time the Attorney General’s office discovered that the tribunal believed the advice did not cover the IIU matter.
Mr McFadden said the serious step of lifting legal privilege was then considered. He agreed with Mr O’Donnell that this was a particularly grave step given that the State is being sued by two entities that were not successful in their bid for the licence.
The privilege was lifted by a decision of the Cabinet and Mr Nesbitt was eventually called to give evidence. The State presumed that Mr Nesbitt’s evidence would be accepted, Mr O’Donnell said, and it was only when it emerged that it had not been that the tribunal was asked to call Mr McFadden and his colleague, John Gormley.
Addressing the chairman, Mr O’Donnell called on him to correct a ruling made in 2008 and which is still on the tribunal’s website.
In the ruling Mr Justice Moriarty addressed the issue of Mr Nesbitt’s written advice, which he said did not deal with the IIU issue, and how to convey this while respecting the privilege that still then existed over the document.
This objective was achieved “by obtaining from the then attorney general a letter stating that the advice actually sought [on the IIU issue] had never been provided,” Mr Justice Moriarty said in the ruling.
Mr O’Donnell described the letter mentioned by Mr Justice Moriarty as a “phantom letter”.
In fact, he said, the Attorney General’s office had twice written to the tribunal stating that Mr Nesbitt’s advice dealt with the IIU matter. The chairman said there “may be aspects of this that in justice I may have to reappraise, but I am not going to do it piecemeal”. When Mr O’Donnell pressed him, Mr Justice Moriarty said he would be “addressing it sooner rather than later”.
Mr McFadden was asked by Jim O’Callaghan SC, for businessman Denis O’Brien, founder of Esat, about a private meeting Mr McFadden had with tribunal counsel in October 2002. Mr Nesbitt and Mr Gormley were also at the meeting.
Mr McFadden said that during the discussion, Jerry Healy SC, for the tribunal, described Mr Nesbitt’s written opinion using “a word for manure. One that begins with s”. Asked to be more forthcoming, he said Mr Healy described it as “sh**e”.
Mr McFadden said he thought it was a “sophisticated” opinion that took into account European law.
Mr O’Callaghan said that once the opinion was sanctioned by the Attorney General for forwarding to the department, it became “transubstantiated” into the Attorney General’s advice. Mr McFadden agreed.
Mr Gormley will begin his evidence today.