Tuesday 23 January 2018

O'Brien may seek to quash parts of Moriarty report if procedures breached

Businessman Denis O'Brien
Businessman Denis O'Brien

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 has 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 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 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 Minister Michael Lowry.

In his appeal, Mr O'Brien claimed 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 into the awarding of Ireland's second mobile phone licence to Esat Digifone in the mid-1990s.

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 yesterday and which reserved its decision.

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 because of the decision of Mr Justice Hedigan in 2011.

Irish Independent

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