What is in the Glackin report that has prompted Dermot Desmond to seek to have the court interfere in Mr Justice Moriarty's conduct of the tribunal?Colm Keena reports

The fact that relations between Mr Dermot Desmond and the Moriarty Tribunal are less than happy has been clear to tribunal observers for some time. But developments in the High Court this week have brought the spat out into the open.

A few weeks ago it was disclosed that Mr Desmond had written letters directly to the chairman, Mr Justice Moriarty, concerning the tribunal's proceedings.

Last Monday in the High Court, lawyers acting for the financier began the process of seeking to have the court interfere in the chairman's conduct of the tribunal. The application was adjourned and will resume on Monday, when lawyers for the tribunal will be heard.

The tribunal has been prying into Mr Desmond's affairs as part of its inquiry into the awarding of a licence to Esat Digifone. Mr Desmond had a 20 per cent stake in the Digifone consortium when the licence was awarded in May 1996, although this was not clear to the civil servants involved in issuing the licence nor to the Government. It was known that Mr Desmond's company, IIU Ltd, was involved.

It is in regard to the fact that he was a discreet shareholder in the consortium at the time of the licence award that the tribunal has seen fit to introduce the Glackin report. The report, by solicitor John Glackin who was appointed under the Companies Acts in 1991, concerns the sale to Telecom of the old Johnston Mooney & O'Brien site in Ballsbridge, Dublin. The report was published in July 1993.

The matter was first raised during the evidence of civil servant Mr Martin Brennan on February 4th, 2003. Mr Brennan told the tribunal that he was out of the State during the period the report was published and had little knowledge of its findings.

The matter was mentioned again on February 5th and February 6th. Asked, with hindsight, whether he would have taken the report into account had he known about the negative findings it contained, Mr Brennan agreed he would have. Some findings of the report were then read into the record.

According to the lawyers acting for Mr Desmond in the High Court, this development caused him "considerable disquiet".

Mr Desmond said he was "dismayed" that the tribunal chairman did not "act to protect my good name".

A solicitor, Ms Helen Rackard, was instructed by Mr Desmond to write to the tribunal to complain about not having been notified of the intention to raise the report, and also to complain about what he, Mr Desmond, considered was "perjorative and objectionable language" used by the tribunal.

She said the questioning of Mr Brennan made it seem as if Mr Desmond was the subject of the tribunal's inquiries, although the tribunal, Ms Rackard added, had previously made it clear that it is not investigating any alleged connection between Mr Desmond and Mr Michael Lowry.

She warned that Mr Desmond would seek a judicial review in the High Court if there was any repetition of what had taken place.

On February 24th Ms Rackard was told by the tribunal that it intended to raise the report again during the next day's evidence. The former secretary of the Department of Transport, Energy and Communications, Mr John Loughrey, was in the box. Counsel for Mr Desmond appeared but there was no reading out of the findings of the report. Mr Desmond's counsel, Mr Bill Shipsey SC, sought confirmation from Mr Loughrey that, under the rules of the licence competition, the assessors could not have had regard to the identity of the members of a consortium in order to find favour or disfavour with any particular application.

The very raising by the tribunal of the possible assessment of the suitability or character of an applicant for the licence has led to further friction between the tribunal and Mr Desmond. Tribunal counsel Mr Jerry Healy SC, has said that while the suitability of candidates was not part of the licence competition criteria, the licence could not be handed over to "organised crime".

Mr Desmond, in his affidavit, said it had "even reached the point where reference was made to the infamous Columbian drug dealer, Pablo Escobar, in the context of my being a member of the Esat Digifone consortium".

He noted that on that occasion Mr Justice Moriarty intervened. The judge said the tribunal was not inviting any parallel between Mr Desmond and the late Mr Escobar.

Mr Desmond, in his claims that Mr Justice Moriarty has failed to protect his, Mr Desmond's, good name and right to fair procedure, has said he is not alleging that the judge is acting out of malice.

Last week and this week the tribunal heard evidence from Mr Fintan Towey, another civil servant who was on the licence competition assessment team. On May 8th the day's proceedings began with Mr John Coughlan SC, for the tribunal, again raising the issue of the Glackin report. Mr Desmond's legal team had not been forewarned, according to Ms Rackard's affidavit to the High Court.

Mr Towey said he was generally aware of the Glackin report and the fact that it had made negative findings in relation to Mr Desmond. He said he had not read the report and had no recollection of discussing the report with colleagues.

Mr Coughlan then read out some of Mr Glackin's findings. He began with Mr Glackin's summary of key aspects of Mr Desmond's evidence to him in sworn affidavits and in affidavits sworn by Mr Desmond in court proceedings. The key aspect was that Mr Desmond swore he had no financial interest in the success or failure of two companies, Chestvale and Hoddle, that were involved in the sale of the Ballsbridge site.

Mr Coughlan then went on to read the following finding concerning Mr Desmond: "I have found that Mr Desmond was financially interested in the success or failure of the Companies" (Chestvale and Hoddle). In other words, the complete opposite to the case sworn by Mr Desmond.

Mr Coughlan also read out a finding to the effect that Mr Desmond had misrepresented the position in relation to aspects of the Ballsbridge deal to the banks, and that he had induced the editor of the Irish Independent to publish a front page apology about a story that he knew was substantially correct.

Having done this, Mr Coughlan then raised the issue of a letter sent to Mr Towey in September 1995, during the course of the licence competition. The letter was from Mr Desmond's company, IIU Ltd, and revealed that it had become involved in Digifone as underwriters, or potential underwriters, to a portion of the consortium. It did not state that Mr Desmond had become beneficially involved in the consortium.

The point of the whole exercise, it would seem, was to examine the idea that Mr Towey should have read the letter bearing in mind the findings of the Glackin report. But Mr Towey said he had no idea at the time that Mr Desmond was linked with IIU Ltd. Mr Towey also said he had not noticed at the time that Mr Desmond's name was listed as a director of the company at the bottom of the headed sheet of paper.

During this same period of questioning Mr Justice Moriarty said the tribunal would be living in "cloud cuckoo land" if it did not allow questions concerning the Glackin report.

Mr Coughlan, during his examination of Mr Towey, referred to IIU Ltd as "this crowd IIU" and "this outfit IIU". In the High Court, Mr Desmond objected to this use of what he said were "pejorative terms". What Mr Desmond now wants from the High Court is permission for a judicial review with the object of securing an order that the tribunal was in breach of fair procedures in raising the Glackin report without giving him notice. He wants the references to the report in the transcripts of Mr Towey's evidence to be quashed. He also wants the decision of Mr Justice Moriarty, that the Glackin report can be introduced to the tribunal's proceedings, to be quashed.

Mr Justice Quirke, who heard the application, decided that he would hear from the tribunal before making any ruling, and adjourned the matter to Monday. Bu he aired the view that there was a huge difficulty involved in his seeking to double guess decisions made by Mr Justice Moriarty in relation to a tribunal that has existed for six years. He also made the point that all that had happened was that some findings of a public report, which any member of the public could buy, had been read into the record of the tribunal. Where is the damage in that, he asked. Mr Desmond was stuck with having to live with the report.

Mr Shipsey, for Mr Desmond, said the airing of the findings had led to publicity and that the mentioning of the report in the context of a tribunal investigating possible corruption was damaging to the reputation of his client.

In his affidavit to the High Court, Mr Desmond said he had always disputed the findings of the Glackin report. Mr Desmond also said that "following an investigation, I received confirmation in writing from the Director of Public Prosecutions that there was no basis for any case being made against me".