In the autumn of 1997, during a series of top-level crisis meetings in Esat Digifone, one of the participants identified a central problem with which they were faced. The businessmen and their lawyers were considering whether they should go ahead with the £100 million plus launch of Esat Telecom on the US stock exchange, given that there were concerns Mr Denis O'Brien might have made a payment to Mr Michael Lowry.
If it later emerged there was something dodgy about the Digifone mobile phonelicence, which had been awarded by Mr Lowry, then the Esat directors would be exposed to multi-million pound law suits from people who bought the Esat Telecom shares. (Esat Telecom owned 40 per cent of Digifone.)
The directors had two reasons for being concerned. In December 1996, a $50,000 payment said to be a political donation had not been paid directly to Fine Gael but instead had been sent to an offshore account belonging to the late David Austin. Mr Austin was an executive with the Smurfit group, a supporter of Fine Gael and a friend of Mr Lowry.
The other problem was that in October/November 1996, Mr O'Brien had told the Digifone chief executive, Mr Barry Maloney, that he had made two £100,000 payments to two individuals in relation to the licence. Mr Maloney believed one of the payments had been to Mr Lowry.
Later there had been mention by Mr O'Brien of an "intermediary" and the payment getting "stuck" with the intermediary and never getting to Mr Lowry. Later again Mr O'Brien said the whole thing was a joke. He signed an affidavit saying no payment had been made.
The central problem identified during the 1997 negotiations was that you cannot prove a negative. The directors could search for evidence in Mr O'Brien's bank accounts that a payment had been made, but could not prove that Mr Lowry had not received a payment. Eventually they had to make a judgment call.
A similar dilemma is now facing Mr Justice Moriarty. Mr O'Brien, all this week in the witness box and again two weeks ago, has not strayed from his insistence that he never made a payment to Mr Lowry. He has been at times co-operative, combative, frustrated and angry. His evidence on oath is not enough to settle the matter.
Mr Justice Moriarty has more material on which to base his judgment than the Digifone directors had in 1997. In particular he has one crucial new piece of evidence - a second payment to Mr Austin which was made from a bank account which wasn't disclosed to the Digifone directors in 1997.
In July 1996, Mr O'Brien directed that more than £400,000 owed to him by oneof his radio companies be sent to the Isle of Man, where it was placed in a newly opened account. The money was dispersed within two weeks and the account then closed. £150,000 went to Mr Austin in Jersey, who opened a new account there to receive the money.
When looking at what is said to have happened next, it is interesting to consider the evidence from Mr Austin's viewpoint.
He was a senior business figure with an interest in politics. He was close to both Mr Lowry and Mr O'Brien and knew that there had been huge controversy about the awarding of the phone licence to Esat Digifone. Yet just a week or two after the licence announcement, in November 1996, he had approached Mr O'Brien looking for money for Fine Gael. Mr Lowry was chairman of the party's board of trustees.
Mr O'Brien recognised the dangers involved. The payment was eventually made from Oslo to Mr Austin in Jersey. When Mr Austin sought to pass the money on to Fine Gael, the party leader, Mr John Bru ton, told him not to. It didn't look right. Mr Austin then held on to the money for more than a year, before passing it on to the party as a personal donation.
Then, during this period, according to the evidence, Mr Austin did something truly extraordinary. He passed on money he had received from Mr O'Brien to Mr Lowry and didn't tell Mr O'Brien.
Mr O'Brien says the money he sent Mr Austin was payment for a house in Spain. Mr Austin left the money alone in its account until October, then gave it to Mr Lowry, transferring it to a newly opened account in the Isle of Man. Mr Lowry says the payment was a loan.
The transfer to Mr Lowry was made at the time the Esat directors and their lawyers were investigating the $50,000 payment to Mr Austin. Mr Austin was aware there were concerns within Digifone, so how could he be so reckless as to pass on to Mr Lowry money he had received from Mr O'Brien?
COINCIDENTALLY or otherwise, the payment from Mr O'Brien to Mr Austin, which then went on to Mr Lowry, fits in with Mr O'Brien's 1996 mention of an "intermediary".
Furthermore, legal documents to effect the sale of the Spanish house to Mr O'Brien were not put in place until 1998, long after Mr Lowry became a political pariah and the subject of the Moriarty tribunal's inquiries.
Moreover, Mr O'Brien's parents never stayed in the Spanish house. At the same time Mr O'Brien was making the £150,000 payment to Mr Austin - July 1996 - he also paid £214,000 for a site in the Portuguese resort of Quinta do Lago. As he noted in an aside this week, he later bought the entire resort. His parents holiday there now. When Mr John Coughlan SC, for the tribunal, put it to Mr O'Brien that there was "no reality" to his story about the Spanish house, Mr O'Brien said he was "completely, categorically wrong".
If Mr Justice Moriarty decides in his report that the £150,000 payment was always intended for Mr Lowry, that in itself will not prove that the 1995 phone licence competition - probably the largest commercial decision made by a government minister - was a corrupted process.
Such a finding, however, would be very damaging to Mr O'Brien, the most successful entrepreneur of his generation.
Watching Mr O'Brien in the witness box and the scowl which sometimes appears on his face, it is obvious he feels his reputation has already received a battering. He has already spent more time in the witness box than any other witness bar Mr Charles Haughey.
Even if, after the exhaustive inquiry into Digifone, Mr Justice Moriarty finds that Mr O'Brien made no payment to Mr Lowry, the entrepreneur's reputation will still suffer.
It is unfair, but simply appearing to give evidence about a possible payment toa politician is enough to create lasting suspicion in the public mind. Tribunals are a rough business.
