Sunday 17 December 2017

Supreme Court dismisses businessman Denis O'Brien's Moriarty appeal

Businessman Denis O'Brien Photo: Tony Gavin
Businessman Denis O'Brien Photo: Tony Gavin

Tim Healy

BUSINESSMAN Denis O'Brien has lost an appeal against a 2011 High Court decision dismissing 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,  to limit 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 Transport, Energy and 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.

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 claimed.

The tribunal had opposed the appeal arguing the matter is now moot as its report has been published and there has been no challenge by Mr O'Brien to its contents.

Today, in one of three separate judgments dismissing the appeal, Chief Justice Susan Denham said she would not interfere with the 2011 decision of the High Court's Mr Justice John Hedigan.

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

In this case, the substantive appeal raised issues relating to the cross-examination of Prof Andersen in 2010 and the ruling by the tribunal on that matter in November 2010.  Evidence had concluded on this aspect of evidence and the tribunal's final report was published in March 2011.

There had been no application to challenge the final report of the tribunal, she said.

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

She also said the rulings in this case were an illustration of case-management of a tribunal and it was essential that a tribunal be case-managed by the chairperson.

In his separate judgment, Mr Justice William McKechnie said he was also satisfied the issue was moot.  There were also no exceptional circumstances for considering the appeal, notwithstanding mootness, and the therefore refused to entertain the substantive appeal.

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.

Ms Justice Elizabeth Dunne and Mr Justice Peter Charleton agreed with the Chief Justice's judgment.

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