The cost of the Moriarty mistakes

 

13 years after it was set up, and with publication of its final findings imminent, the Moriarty Tribunal has admitted two ‘significant errors’. They have dealt a blow to the inquiry’s credibility, but the report is still likely to send out shockwaves, writes COLM KEENAPublic Affairs Correspondent

What happened at the Moriarty Tribunal this week?

The chairman of the tribunal, Mr Justice Michael Moriarty, apologised for two significant errors. He also indicated that he is to reassess a provisional finding that came close to going into his final report.

What were the errors?

One was the failure to circulate until recently a memo of a private meeting held in October 2002 between the tribunal legal team and Richard Nesbitt SC, Denis McFadden and John Gormley (not the Minister for the Environment).

McFadden and Gormley are barristers from the Attorney General’s office and in 1996 they commissioned advice from Nesbitt on a number of matters relating to the State’s second mobile phone licence, which was about to be issued to Esat Digifone.

The other was an error in a legal ruling Mr Justice Moriarty made in February 2008. In the ruling, the judge said the written advice given by Nesbitt in 1996 to the Attorney General’s office did not cover what is known as “the ownership issue”. He also said the Attorney General’s office had confirmed this in a letter. Evidence has now been heard from McFadden and Gormley that no such letter was ever written, that a number of letters to the opposite effect were written, and that they told the tribunal legal team at the 2002 meeting that the Attorney General believed the Nesbitt advice covered the ownership issue.

How did the judge get that one so wrong?

We don’t know. He hasn’t said.

What is ‘the ownership issue’?

In 1995, Esat entered a competition for the exclusive right to negotiate for the licence. Its bid said Esat was owned by Denis O’Brien and a Norwegian company called Telenor, but that if it got the licence it would sell a minority stake to four named financial institutions. Esat won the competition and began negotiations on the licence.

In April 1996 the Department of Transport, Energy and Communications, which was to issue the licence, asked the Attorney General’s office if it was okay that Dermot Desmond was now the minority shareholder, with O’Brien and Telenor owning the rest between them. In short, the question was, is this Esat the same Esat that entered the competition?

What did Nesbitt say?

He was asked a number of complicated questions about the licence at this time and gave a composite response in May 1996. It was accompanied by a covering letter advising that the then Minister, Michael Lowry, should go ahead and issue the licence. The actual advice did not specifically identify the ownership question, in the form put by the Department.

Why does it all matter?

If the Department had legal concerns about what was one of the largest commercial gifts ever granted by the State, and issued the licence without getting those concerns allayed, that would open the possibility that Lowry might have been involved in some way. But if the officials’ concerns were allayed, then no such malign scenario can apply.

So what does the judge think?

We’re not supposed to say. He issued confidential provisional findings about the legal advice in October 2008. We can say they caused consternation. Although the tribunal could read the Nesbitt advice, the State had up to then maintained legal professional privilege over the document. In March 2008 the Cabinet decided to lift privilege. This was despite the fact that the Attorney General’s office had concerns about doing so, given that two consortiums that failed to win the licence competition are in the process of suing the State.

Don’t stop. What happened next?

The State then asked that Nesbitt be called. The tribunal resisted, but eventually agreed. In evidence, Nesbitt said the advice covered the ownership issue. John Coughlan SC, for the tribunal, put it to him that this was the first time he had asserted such a thing. However, Coughlan had been at the 2002 meeting when Nesbitt had said exactly that. Coughlan’s colleague, Jerry Healy SC, had challenged Nesbitt’s assertion at the 2002 meeting and had described the legal advice as “shite”.

Nesbitt may not have remembered the 2002 meeting, which illustrates why the memo should have been circulated. Nesbitt said he could remember also giving oral legal advice. Coughlan said Nesbitt’s evidence wasn’t credible.

In subsequent confidential provisional findings, the judge did not accept Nesbitt’s evidence. (We can say this because it was said at the proceedings this week.)

Never a dull moment. What happened then?

A number of parties sought to have McFadden and Gormley, the officials from the Attorney General’s office, called to give evidence. However, the tribunal refused. They told some parties the officials would not have anything to contribute. Eventually the tribunal backed down and called the officials. The officials said the Attorney General’s office at all times considered that the Nesbitt advice (which became the Attorney General’s advice) gave the all-clear on the ownership issue. They also recalled Nesbitt giving oral advice to that effect.

McFadden, in his statement of intended evidence given to the tribunal prior to his recent appearance, mentioned the 2002 meeting.

Why was Denis O’Brien so angry at his press conference last week?

He has long complained about documents not being given to him and felt the non-disclosure of the memo of the 2002 meeting was another instance of this unfairness.

So what now?

The State and other parties are waiting to see whether the judge will drop his initial provisional finding on the ownership issue. Comments by him indicate he will.

Does this mean the judge will be making no bad findings on the licence issue?

Not quite. The licence issue is a game of two halves. One was the competition to be allowed to negotiate for the licence, and the other was the actual negotiation of the licence. There is still a lot of troubling evidence concerning the competition issue, and an expectation that there will be negative findings.

Aside from that is the whole matter of possible financial links between Lowry and O’Brien, on which the tribunal will also report.

It looks like the chairman came close to making a major boo-boo. How could that have happened, with all those highly paid lawyers involved?

That’s not clear. No doubt the privilege issue is a part of the answer, given that it prevented the opinion being discussed in evidence from 2002 to 2008. Counsel for the Department, John O’Donnell SC, has said the tribunal legal team has a view that made its way into the chairman’s rulings.

So when will we see the final report?

Maybe before July, but who knows?

What difference will it make?

It will shed light on matters of urgent public importance.

Urgent? It was set up 13 years ago!

I know.

Moriarty Tribunal: The Figures

€38,945,396:cost of the Moriarty Tribunal
€6,334,134:

€8,861,924:

€9,046,499:

€1,564:The daily ratepaid to tribunal counsel Jacqueline O’Brien SC, who was made a senior in the period since 1997.

€1,995:

(€? A very big number)

What the tribunal will eventually cost.The legal costs of people who appeared before the tribunal will have to be paid after it publishes its final report. Some parties may be refused costs. The final figure is likely to be considerably more than €100 million.