O'Brien loses challenge to tribunal ruling on evidence

THE HIGH Court has dismissed the challenge of businessman Denis O’Brien to the decision of the Moriarty tribunal to limit aspects…

THE HIGH Court has dismissed the challenge of businessman Denis O’Brien to the decision of the Moriarty tribunal to limit aspects of his lawyers’ cross-examination of a key witness. The tribunal’s decision was eminently reasonable, the court found.

Mr O’Brien had brought proceedings over the decision of tribunal chairman Mr Justice Michael Moriarty limiting both the time for cross-examination of Danish telecommunications expert Prof Michael Andersen and limiting the range of questions which could be asked.

Mr Andersen’s evidence, given to the tribunal over a number of days between October 26th and November 5th last, related to aspects of the tribunal’s investigation into the awarding of Ireland’s second mobile phone licence to Esat Digifone in the mid-1990s.

Mr O’Brien, St Sligma, Malta, had sought to have Mr Andersen recalled to be cross-examined by his lawyers without any restraints placed by the tribunal.

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Mr O’Brien claimed Mr Andersen’s evidence was critical to the outcome of the tribunal in relation to the probity of bids for the phone licence.

In dismissing the challenge yesterday, Mr Justice John Hedigan said this was Mr O’Brien’s fourth set of judicial review proceedings against the tribunal.

The first challenge was brought in 2005 when Mr O’Brien complained his right to fair procedures had been breached because the tribunal was continuing its hearings in the absence of Prof Andersen’s evidence although it had made strenuous efforts to get him, the judge said. The High Court found on that occasion there was no breach of procedures.

In November 2008, when the work of the tribunal was “all but complete” and it had circulated its provisional findings, Prof Andersen claimed the tribunal was biased, the judge said.

Subsequently, having received an indemnification from Mr O’Brien, Prof Andersen agreed to give evidence last year.

Mr Justice Moriarty had ruled he could not be cross-examined about meetings between him and the tribunal’s lawyers or about any notes taken at those meetings.

Mr O’Brien had challenged that ruling in this latest judicial review.

In his judgment, Mr Justice Hedigan said it was clear from case law there was limited scope for the court to interfere with the exercise of an administrative body, particularly tribunals of inquiry which were afforded a high level of deference.

The right to cross-examine one’s accuser may be curtailed but only within a firm basis in law consistent with the Constitution, the judge said.

This case was about the right to cross-examine a witness who not only was not an accuser but who had given evidence favourable to Mr O’Brien, he said.

No compelling or even satisfactory answer had been given to the court as to what Mr O’Brien “hoped to obtain” by questioning Prof Andersen further about the alleged bias of the tribunal, the judge said.

“The most that could have been hoped for was that he would repeat what he had already said but perhaps in stronger terms, that he could perhaps gild the lily.”

The “speculative” opportunity to do so, allegedly missed in this case, must surely be a right of the most limited nature if it exists at all, Mr Justice Hedigan added.

The extent to which the limitations imposed on cross-examination could prejudice Mr O’Brien’s reputation was also highly speculative.

The rights claimed by Mr O’Brien had to be balanced against the concerns expressed by Mr Justice Moriarty that allowing this area of evidence to be pursued would mean having to hear evidence from the tribunal’s own lawyers whose reputation was being called into question, the judge said. That would make Mr Justice Moriarty a judge in his own cause and would surely given rise to questions about his impartiality.

Balancing these serious problems faced by the tribunal against the “very speculative” and limited rights of Mr O’Brien, Mr Justice Hedigan ruled the decision of Mr Justice Moriarty was “eminently reasonable” and grounded firmly in relevant evidence.

The procedures followed by the tribunal were, in all circumstances, fair and reasonable taking into account the difficulties it was faced with, he added.

The same findings applied to the decision to limit the amount of time given to Mr O’Brien’s lawyers to carry out their cross-examination, he said. Limiting the amount of time to five hours, later extended to six, was reasonable given the time available.

A spokesman for Mr O’Brien said later he would be appealing the decision.