Wednesday 21 February 2018

Denis O'Brien believes declaration on fair procedures will affect public view of Moriarty tribunal's report, Supreme Court hears

A copy of the Moriarty Tribunal Report is held up at Dublin Castle. Photo: Tom Burke
A copy of the Moriarty Tribunal Report is held up at Dublin Castle. Photo: Tom Burke

Tim Healy

BUSINESSMAN Denis O'Brien believes a declaration that fair procedures were not applied during part of the Moriarty Tribunal into payments to politicians will have an effect on the public view of the tribunal's report, the Supreme Court heard.

If he got such a declaration from the Supreme Court, he could also consider moving to quash certain parts of the report, his counsel Paul O'Higgins said.

It would also have consequences for the issue of costs which has still yet to be decided by the tribunal, he said.

Mr O'Higgins was making arguments in Mr O'Brien's appeal against a 2011 High Court decision dismissing the businessman's claim the tribunal had incorrectly restricted cross-examination of a key witness at its public hearings.

The tribunal opposed the appeal.

It said the matter is now moot as the tribunal's report has been published and there has been no challenge by Mr O'Brien to its contents.

The report includes findings adverse to the businessman about his relationship with former Communications Minister Michael Lowry.

In his appeal, Mr O'Brien claimed there was a breach of fair procedures by sole tribunal member Mr Justice Michael Moriarty  to limit both the amount of time and the extent of the questions his lawyers could ask Danish telecommunications expert, Professor Michael Andersen.

The professor was a witness as part of the tribunal's investigation into the awarding of Ireland's second mobile phone licence to Esat Digifone in the mid 1990's.

Mr O'Brien claimed the professor's evidence was critical to the outcome of the tribunal as he could testify on the probity of bids for the phone licence.

In 2011, the High Court's Mr Justice John Hedigan dismissed that challenge.

Mr O'Brien brought an appeal heard by a five-judge Supreme Court today when a decision was reserved.

As a preliminary matter, lawyers for the tribunal asked the court to decide whether the appeal was moot because there had been no challenge to the tribunal's final report published in March 2011.

Shane Murphy SC, for the tribunal, said the issue raised in the appeal was a "dead controversy" and there was no public interest in having it determined.

Mr O'Higgins SC, for Mr O'Brien, said his client could not have challenged the publication of the report because of the decision of Mr Justice Hedigan in the High Court in 2011.

Mr O'Brien had immediately lodged his appeal against that decision and if he had taken separate proceedings over the final report itself, that could have been seen as an abuse of process as it would be dealing with similar questions already decided by Mr Justice Hedigan.

Asked by a number of the Supreme Court judges, what was the actual relief Mr O'Brien was seeking now,  Mr O'Higgins said it was primarily a declaration that there had been a failure by the tribunal to protect his right to fair procedures.

Mr Justice Peter Charleton asked counsel if the court was to grant such a declaration, would that be a "PR (public relations) matter" or something that "might make your client fell better".

Mr O'Higgins said it would be pertinent to what view members of the public might attach to the tribunal's report.  

"That is an important and live concern from my point of view", he said.

Prof Andersen was a central witness in the case against Mr O'Brien at the tribunal and his (O'Brien's) lawyers were told they could not cross-examine him on certain matters, counsel said.

Asked by Mr Justice William McKechnie if there could be further legal consequences if he got a declaration (on breach of procedures), Mr O'Higgins said that was not impossible but he had not considered it at this stage.

"It is not unstateable that if I was successful in these (appeal) proceedings, I could move to quash aspects of the tribunal's report".

A favourable declaration would also have a bearing on the issue of tribunal costs which had yet to be determined, Mr O'Higgins said.

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