Sunday 4 December 2016

Denis O'Brien loses Supreme Court appeal on Moriarty

Tim Healy

Published 13/07/2016 | 02:30

Denis O’Brien: his Esat Digifone won the mobile phone licence.
Pic:Mark Condren
Denis O’Brien: his Esat Digifone won the mobile phone licence. Pic:Mark Condren

Businessman Denis O'Brien has lost an appeal against a 2011 High Court decision dismissing his claim that the Moriarty Tribunal had incorrectly restricted cross-examination of a key witness at its public hearings.

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A five-judge Supreme Court unanimously dismissed the appeal, in which Mr O'Brien had claimed a breach of fair procedures by the sole tribunal member, Mr Justice Michael Moriarty, in limiting both the amount of time and the extent of the questions that Mr O'Brien's lawyers could ask a Danish telecoms expert.

Professor Michael Andersen was managing director of the international consultants who had been engaged by the Department of Communications in 1995 to assist civil servants in assessing six applications for the country's second mobile phone licence, which eventually went to Mr O'Brien's company, Esat Digifone.

The tribunal, which was set up to examine payments to politicians Michael Lowry and Charles Haughey, examined the awarding of that licence by Mr Lowry, who was communications minister at the time.

Mr O'Brien had argued that a declaration that fair procedures had not been applied during part of the tribunal would have an effect on the public view of the tribunal's report.

If he got such a declaration from the Supreme Court, he could also consider moving to quash certain parts of the report and this could also have consequences for the issue of the tribunal's costs, he argued.

The tribunal had opposed the appeal, arguing that the matter was moot as its report had already been published and there had been no challenge by Mr O'Brien to its contents.

In one of three separate judgments dismissing the appeal, Chief Justice Susan Denham found that Mr O'Brien's rights to fair procedures and constitutional justice had not been breached.

She said it became apparent that Prof Andersen was available to give evidence, having previously declined to do so, some considerable time after the provisional findings of the tribunal had been circulated to interested parties. The professor had indicated that his availability was limited, so it was necessary to indicate the time available to various parties to cross-examine him, she said.

The curtailment of time to Mr O'Brien's lawyers to ask questions was clearly appropriate, she said.

Irish Independent

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