Saturday 24 February 2018

Businessman Denis O'Brien loses Supreme Court appeal

Denis O'Brien Photo: Bloomberg
Denis O'Brien Photo: Bloomberg

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

A five-judge Supreme Court unanimously dismissed the appeal in which he claimed there was a breach of fair procedures by sole tribunal member, Mr Justice Michael Moriarty, by limiting both the amount of time and the extent of the questions his lawyers could ask Danish telecommunications expert, Professor Michael Andersen.

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

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

Mr O'Brien had argued that a declaration that fair procedures were not applied during part of the tribunal, which centred on payments to politicians Michael Lowry and Charles Haughey, 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 the matter was moot as its report has been published and there has been no challenge by Mr O'Brien to its contents.

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

She said it became apparent 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 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 and took into account Mr O'Brien's rights and the rights of other parties, she said.

The Chief Justice said there are exceptions to the general rule that the court would not hear a moot appeal but this was based on factors in the case and whether there are special and unusual circumstances.

She was satisfied the issue as to the cross-examination of Prof Andersen was moot.

However, she said, the court still had discretion to hear the appeal and had done so.

She found that the High Court was correct that Prof Andersen had given evidence that in his (Andersen's) opinion, the tribunal's lawyers were biased and that he had explained in detailed what he had meant.

The High Court was correct in finding the most that could have been hoped for (in a cross-examination) was for Prof Andersen to repeat himself and "perhaps gild the lily", the Chief Justice said.

In his separate judgment, Mr Justice William McKechnie said the High Court correctly observed the right to cross-examine related to the right to cross-examine one's accuser.  In this case, Mr O'Brien sought to cross-examine a witness who not only was not an accuser, but who had previously given evidence favourable to Mr O'Brien, he said.

Mr Justice McKechnie was also satisfied the issue was moot and did not find there were exceptional circumstances for considering an appeal which he was therefore refusing to entertain.

In a third judgment, Ms Justice Iseult O'Malley agreed with the Chief Justice and Mr Justice McKechnie the appeal was moot.  "There is no live controversy affecting the appellant's rights that requires to be resolved", she said.

It became moot, in her view, not because of the acknowledged pressure on the Supreme Court lists but because the tribunal's report was published in the absence of any application to restrain publication.

Her view was the court should not exercise its discretion to consider the merits of the appeal.  However, in view of the fact the majority of the court felt it appropriate to do so, she also agreed that, in any event, neither of the rulings in issue breached Mr O'Brien's right to fair procedures.

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