TWO OFFICIALS from the office of the Attorney General are to give important new evidence to the Moriarty tribunal this week concerning a key issue on which it has to rule in its final report.
Yesterday in confidential documentation circulated to interested parties, it was said for the first time that the tribunal met privately with one of the officials as far back as October 2002.
The two officials, John Gormley and Denis McFadden, both qualified barristers, are expected to support evidence heard last year from senior counsel Richard Nesbitt, who said he had a “crystal clear” recollection of giving oral legal advice to the State in 1996, concerning the legality of issuing a mobile phone licence to Denis O’Brien’s Esat Digifone.
At the time, tribunal counsel John Coughlan put it to him that his evidence was “not credible”. Mr Nesbitt said he had not entered the witness box to give evidence that was not correct.
Mr Justice Michael Moriarty, the tribunal chairman, subsequently issued confidential provisional findings that covered the legality issue and the matter of Mr Nesbitt’s evidence. The content of the provisional findings cannot be disclosed for legal reasons.
A number of parties then pressed the tribunal to call the officials from the Attorney General’s office. It is understood a number threatened to seek judicial reviews by a specific date, if the tribunal did not do so. The tribunal then said it was going to call the witnesses.
They are due to begin their evidence on Thursday and their statements to the tribunal were circulated yesterday. Both say they recall Mr Nesbitt saying the licence could be issued to Esat Digifone, despite changes to the ownership of the consortium in the period since it had first bid for the licence.
Mr McFadden said when he met the tribunal in October 2002, he was of the view that written advice given by Mr Nesbitt at the time also covered the issue. The tribunal chairman has said the written advice from Mr Nesbitt does not address the issue.
The fact that Mr McFadden had met the tribunal in private in October 2002 and discussed the issue of the legal advice given by Mr Nesbitt was not known to most parties involved in the tribunal until the statements were circulated yesterday.
In a statement, Michael Lowry, who was minister for transport, energy and communications at the time the licence was issued, said it was “bewildering” that until recently the tribunal was of the view that it was finished its work and ready to publish its report.
He said his legal team would be demanding that it be told by Mr Justice Moriarty why the information contained in Mr McFadden’s statement was not disclosed over the course of the eight years since 2002.