It is hard to see how evidence heard at the Moriarty tribunal could prompt any conclusion that Digifone won the State's second mobile-phone licence due to corrupt intervention by Michael Lowry, writes Colm Keena
The conclusion of Michael Lowry's evidence to the Moriarty tribunal on Tuesday probably marks the end of the tribunal's inquiry into the granting of the State's second mobile-phone licence to Esat Digifone in 1996.
The four-year so-called "tribunal within a tribunal" is set to cost the taxpayer tens of millions of euro in legal fees. Expensive legal teams were retained by Esat Digifone shareholders Denis O'Brien, Dermot Desmond and Telenor, as well as by Mr Lowry's former department, the Department of Transport, Energy and Communications, and by Mr Lowry himself.
The report of the chairman, Mr Justice Moriarty, will be awaited with great interest by all the parties involved.
It is hard to see how the evidence could lead the judge to conclude that Mr Lowry interfered in a corrupt fashion in an effort to assist Mr O'Brien to win the licence.
That is not to say that he may not find that the licence competition itself was far from perfect. In a ruling in September in response to legal submissions from a number of parties, Mr Justice Moriarty made clear his view that changes along the way in the complicated assessment process may have undermined the integrity of the competition.
By this he meant that the selection of the winner may not have followed the theory as originally set out for the assessment process. But that is a long way from showing that the process was changed so as to benefit Digifone.
The judge also said there had been a breach in the confidentiality protocol which was to have governed Mr Lowry's knowledge of what was happening with the competition. This indicated the process was "capable of being penetrated". However, in his evidence this week, Mr Lowry disputed such an interpretation.
The two issues identified by Mr Justice Moriarty in his statement were then married with the suggestion that Mr Lowry may have intervened near the end of the process, to have it accelerated at a time when he knew Digifone was out in front of the second ranking bid.
One of the civil servants on the assessment team took a note when it was being told by the team leader, Martin Brennan, that Mr Lowry wanted the process accelerated. However, Mr Lowry has disputed this, saying he did not ask that the process be accelerated and pointing out that the competition followed a timeframe set out for it in a written document available to the tribunal.
All in all, it is hard to see how the evidence could be relied on as grounds for a finding that Digifone won the competition as a result of corrupt intervention by Mr Lowry. It is possible to imagine a conspiracy based on the issues identified by the judge, but there would appear to be no evidence to support a decision to believe such a scenario rather than a more straightforward, benign interpretation of the evidence.
Crucially, all of the civil servants who assessed the bids for the licence have said they did not feel their work was interfered with.
Mr Justice Moriarty has also said he will examine whether Mr Lowry had a role in Mr Desmond becoming involved in Digifone. Again, it is hard to see how the evidence could support such a finding.
In the wake of the September ruling, both Mr O'Brien and Mr Desmond issued public statements that were highly critical of Mr Justice Moriarty. Both men have indicated they no longer trust the tribunal to reach the conclusion they see as being warranted by the evidence.
Meanwhile, there are still a few spats continuing in the Four Courts, where Mr O'Brien is seeking rulings concerning what the tribunal does and doesn't do.
The tribunal is also, of course, engaged in inquiries into possible financial dealings between Mr O'Brien and Mr Lowry. The evidence to date in relation to these matters is more troubling than that in relation to the licence competition.
It is understood parties to be criticised will be shown a draft copy of the judge's report to allow them to respond before it is finalised. There may be a few more trips to the High Court before Mr Justice Moriarty returns there to resume his more usual duties.