O'Brien and Desmond to challenge role of McDowell

LEGAL CHALLENGE:TWO BILLIONAIRE businessmen have told the Moriarty tribunal they are to take judicial review proceedings in the High Court against the tribunal's decision to engage the services of the former politician and attorney general Michael McDowell SC.

Counsel for Denis O’Brien and Dermot Desmond, both former shareholders in the Esat Digifone consortium, objected to the engagement of Mr McDowell when he appeared at the beginning of the tribunal’s latest public hearing yesterday.

Tribunal chairman Mr Justice Michael Moriarty said it was because of “unwarranted slurs and imputations” on a member of the tribunal’s legal team by an affected party before the tribunal that he had decided to engage Mr McDowell. The move had the support of the entire legal team.

He said Mr McDowell was engaged solely to take the evidence of Danish consultant Michael Andersen, who advised the State in 1995 when Esat Digifone won a competition for the State’s second mobile phone licence.

He did not accept that a list of 10 factors, including Mr McDowell’s political involvement and his role in a lengthy High Court case as a barrister where he cross-examined Mr Andersen, precluded him from working with the tribunal.

Jim O’Callaghan SC, for Mr O’Brien, made a lengthy submission on the matter in which he said 10 matters he listed created a conflict or a perception of a conflict of interest on Mr McDowell’s part.

Given the role which tribunal counsel had, this in turn meant the tribunal itself had a conflict of interest or a perceived conflict of interest.

He said the engagement of Mr McDowell was an “alarming and ill-advised development”.

Mr Justice Moriarty said that when asked to work for the tribunal, Mr McDowell had agreed to do so on terms that were “radically distinguishable” from terms suggested earlier by Michael Lowry, minister for communications at the time of the competition.

Mr Lowry, representing himself, had suggested Mr McDowell might have been paid €30,000 or €40,000 as a briefing fee, and would now be paid a daily rate.

Mr Justice Moriarty disclosed that he had received a four-page letter last Tuesday from Mr O’Brien, despite parties having been asked to correspond via the tribunal solicitor.

He said the letter was largely confined to abuse, accusations of bias and peremptory demands. He said attempts at intimidation or at the stopping of a final report coming out would be to no avail.