O'Brien likely to challenge tribunal at High Court

ENTREPRENEUR DENIS O'Brien is expected to challenge in the High Court a decision of the Moriarty Tribunal in relation to the calling of the economist Dr Peter Bacon.

A challenge would further delay the issuing of the tribunal's second and final report, which was to have been published by late last year.

The expected challenge would be the latest in a number of High Court challenges by Mr O'Brien and would concern the businessman's right to question Dr Bacon, who gave assistance to the tribunal when it was conducting its public inquiries into the 1995 competition for the State's second mobile phone licence.

At the time the witnesses called were not aware of Dr Bacon's involvement.

During a ruling in the High Court in an earlier challenge it was stated that should the tribunal choose not to call Dr Bacon to give evidence, he should be made available for questioning by Mr O'Brien, if Mr O'Brien wished to.

Mr O'Brien's decision to take up that right let to a sitting of the tribunal earlier this month, but on the day Mr O'Brien opted not to question the economist but rather sought an adjournment.

Tribunal chairman Mr Justice Michael Moriarty ruled that the tribunal had now fulfilled its obligation to call Dr Bacon, but put a stay on that ruling to see if the parties involved could negotiate an amicable resolution to the matter. No such solution has been arrived at and the chairman has announced, in a statement on the tribunal's website, that the stay has expired.

The two sides have been unable to agree the terms for Dr Bacon's recall. Mr O'Brien wants to question the economist about a number of matters, including the instructions he received from the tribunal when it engaged him.

The tribunal, for its part, wants to restrict questioning to the reports produced by Dr Bacon for the tribunal. Mr Justice Moriarty said that to allow Mr O'Brien revisit criticisms of the tribunal's relationship with Dr Bacon already made by Mr O'Brien in the High Court, would be the juristic equivalent of Groundhog Day. Mr O'Brien was unsuccessful in that earlier High Court challenge.

Another matter that arose when the tribunal sat earlier this month to allow for the questioning of Dr Bacon, concerned a tribunal solicitor's note of a meeting between Dr Bacon and the tribunal legal team in November 2004.

That note should have been supplied to Mr O'Brien some years ago, but was not supplied until the Friday before this month's sitting. Mr Justice Moriarty said the failure was due to an error when material was being photocopied.

Mr O'Brien's side said the note had been deliberately concealed and that it called into question the tribunal's integrity. Mr Justice Moriarty "emphatically rejected" any suggestion of a conspiracy against Mr O'Brien.

The final report of the tribunal will deal with payments to the former minister for transport, energy and communications, Michael Lowry, and decisions made by him. Mr Lowry was minister at the time of the licence award.

The tribunal has examined possible financial links between Mr Lowry and Mr O'Brien, the founder of Esat Digifone, which won the 1995 licence competition. Both say Mr O'Brien did not provide financial assistance to Mr Lowry.