O'Brien fails to stop Bacon testifying


Millionaire businessman Denis O'Brien has lost his legal attempt to restrain the Moriarty tribunal from calling economist Peter Bacon to give evidence in public about the procedures which led to the awarding of the State's second mobile phone licence to Esat Digifone.

Mr O'Brien had claimed a report prepared by Mr Bacon about the evaluation process - which led to the awarding of the mobile phone licence to Esat - did not constitute evidence and was inadmissible before the tribunal.

Dismissing Mr O'Brien's High Court application yesterday, Mr Justice John Quirke said he could see no reason why the Moriarty tribunal should not be entitled to call professional witnesses to testify at public sittings. Should the tribunal not opt to call such witnesses, it should make them available for cross-examination, he said.

The court heard during judicial review proceedings last month that the March 2003 report by Mr Bacon confirmed a "tentative view" which the tribunal then held that a report by Michael Andersen, a management consultant with the Danish consultancy firm AMI - which was retained by the Government to provide expert assistance in the mobile phone licence competition, "may contain a number of seriously fundamental flaws".

The AMI report had formed the basis for the ultimate decision to award the licence to Esat in October 1995.

The court was also told that counsel for the tribunal had at a meeting on March 31st, 2003 noted that the problem with the AMI report was that "nobody understands it apart from the man who wrote it".

The notes of that meeting had also recorded Mr Bacon as stating: "Everything points to Andersen having been manipulated. He was pushed around."

In his judicial review case, Mr O'Brien had also sought an order directing the tribunal to take steps via the Danish courts aimed at compelling Mr Andersen and other personnel with AMI to give evidence to the inquiry.

The court heard that the tribunal had stated in correspondence in June 2005 that it believed there was "no realistic prospect" of compelling Mr Andersen to give evidence either here or in Denmark.

The court was told Mr Andersen has declined to give evidence to the inquiry unless he is given an indemnity by the Government against any claims that might arise from his evidence. No such indemnity has been offered to date.

Mr Justice Quirke said the tribunal has indicated it will seek documentary evidence from Denmark which may be relevant to the work of the tribunal.

He said it was within the discretion of the tribunal to decide what evidence is relevant and what evidence will be adduced at public hearings.

The High Court would not intervene in such decisions in the absence of evidence of illegality and there had been no such evidence in the proceedings.

The judge also rejected Mr O'Brien's application for a court declaration that a delay of 18 months in completing the evidence given to the tribunal by Tony Boyle, of Persona, an Irish consortium which was runner-up in the mobile licence competition, constituted a breach of Mr O'Brien's right to cross-examine.