The chairman of the Moriarty tribunal is to rule next week on whether he will abandon the inquiry into the 1995 second mobile phone licence competition.
He was responding to calls from counsel for Michael Lowry, Denis O'Brien, Dermot Desmond and Norwegian company Telenor, at a special sitting of the tribunal yesterday.
Michael McGrath SC, counsel for the Attorney General, told the tribunal it should continue with its inquiry. He said the chairman could give regard to the unavailability of certain witnesses when reaching his conclusions.
Richard Nesbitt SC, for the Department of Communications, which ran the competition and eventually issued a licence to Esat Digifone, asked that the tribunal outlines how it intends to proceed.
The licence inquiry has been under way for four years and has cost tens of millions of euro. Mr Justice Moriarty has called it "a tribunal within a tribunal".
When it was granted the licence in 1996 Esat Digifone was owned by Mr O'Brien, Telenor, and Mr Desmond.
The tribunal held a special sitting to hear from interested parties following the submission and circulation of legal submissions arising from difficulties the tribunal is having in getting a Danish consultant, Michael Andersen, to consent to give evidence.
Mr Andersen was an expert in the area who designed and oversaw the 1995 competition.
It was disclosed yesterday that in March 2003 the tribunal received a confidential report on the competition process commissioned from economist Peter Bacon. Counsel for Telenor, Eoghan Fitzsimons SC, Mr Lowry and Mr O'Brien said this report had influenced the tribunal in its cross-examination of witnesses, but the report's existence and content had not been disclosed to them. They said this created a fundamental flaw in the inquiry process.
"The entirety of the process since then carries with it a fundamental defect in terms of fair procedures," Mr Fitzsimons said.
Counsel for Mr Lowry, Rossa Fanning, and counsel for Mr O'Brien, Eoin McGonigal SC, said that if the tribunal proceeded with its inquiry, it could not fairly make any adverse findings.
Mr Justice Michael Moriarty said Mr Andersen had sought an indemnity before appearing before the tribunal, and that the tribunal had sought such an indemnity from the Government, which had declined the request.
Public hearings on the licence issue began in December 2002. Mr Fitzsimons read a letter from the tribunal to solicitors for Mr Andersen, dated March 26th, 2003, in which the tribunal stated it believed the Andersen report relied on during the licence competition, was unsatisfactory.
"Moreover, the tribunal has obtained some expert assistance for the purpose of scrutinising the report and this has confirmed the tribunal's tentative view that the report appears to be flawed in a number of ways, and indeed may contain a number of seriously fundamental flaws."
Mr Fitzsimons said his clients had not understood why they were subjected to an "extremely vigorous" examination. They now understood. The tribunal had cross-examined them "on the basis of an alleged expert's report that was apparently critical of the process" and which influenced the tribunal's view prior to the Telenor witnesses giving their evidence. Mr Fitzsimons said the tribunal had formed a "tentative view" on the licence process when most of the witnesses had yet to be heard on the matter.
He said it was not unreasonable for Mr Andersen to seek an indemnity, given that he had been told in 2003 that the tribunal had taken a view that the licence process he had overseen might contain a number of flaws.