BUSINESSMEN Denis O'Brien and Dermot Desmond are to appeal to the Supreme Court after failing to stop former Tanaiste Michael McDowell from questioning a witness at the Moriarty Tribunal.
Yesterday the High Court ruled that Mr McDowell, a barrister, had been retained as an independent counsel for a specific purpose, was clearly not part of the tribunal team, and could not in his role as a barrister be seen as having a perceived bias, as had been claimed by the two businessmen.
Case law showed that only in the most exceptional circumstances could a barrister be excluded from acting under the rules relating to what is legally known as "objective bias" and "nothing of that nature" arises in this instance, the judge said.
The two businessmen had sought leave for judicial review and sought an injunction against the decision of the tribunal to retain the services of Mr McDowell to examine Danish consultant, Professor Michael Andersen, who oversaw the awarding of the State's second mobile phone licence to Esat Digifone, which Mr O'Brien and Mr Desmond are both former shareholders of.
They claimed Mr McDowell had conflicts of interests because of his various roles in public life -- as Attorney General, Tanaiste and as a TD in 1995 when he questioned the integrity of then Transport Minister Michael Lowry over the issuing of the licence. Any finding against Mr Lowry would also mean a negative finding against Mr O'Brien, it was claimed.
It was also claimed that as Justice Minister in 2005, he was collectively responsible for a government decision to refuse to provide Prof Andersen with an indemnity he sought in relation to any evidence he would give, and this resulted in a delay in him (Andersen) giving evidence, something which might have greatly shortened the life of the tribunal.
The judge ruled this was an unusual application in which it seemed the central question in applying the principles relating to objective bias was: what is the nature of the relationship Mr McDowell has with the tribunal in its present role?
The judge had to look to the facts of this case to see if the principles of objective bias applied and, save for the most exceptional cases, rules of objective bias could not apply to barristers. The very nature of their role in the legal system was that they were partisan and also operated under the "taxi-cab rule" whereby they must, save for very limited instances, act for whoever comes along.