ANALYSIS:If yesterday's evidence is correct, the Moriarty tribunal has made a fundamental error
THE EVIDENCE yesterday from Danish consultant Michael Andersen has the potential to be the death blow to the Moriarty tribunal’s mammoth inquiry into the 1995 mobile phone licence competition.
Given that the inquiry has cost in the region of €100-150 million, then on the basis of Andersen’s evidence it is itself a national scandal.
In measured tones considering the import of what he was saying, Prof Andersen said not just that the tribunal got it terribly wrong in its confidential provisional findings issued in November 2008, but that key members of the tribunal’s legal team had been biased from an early stage and that this bias was what caused the erroneous findings.
He made the hugely serious accusation that the legal team, who charge high fees on the basis of their competence, adopted a hostile attitude towards him in an effort to dissuade him from giving evidence, and that they did so because the evidence he would have given did not fit with the view they had formed early in the inquiry.
If any of this is true, then it reflects very badly on the tribunal chairman, Mr Justice Michael Moriarty.
The tribunal began its inquiry into the licence competition in 2002 after it had discovered potential financial links between the former minister for communications Michael Lowry and the founder of Esat Digifone, Denis O’Brien. It heard evidence that O’Brien might have authorised a payment to Lowry in the context of the Esat licence.
The licence inquiry led to confidential findings issued in November 2008 which are now being challenged, in part through the hearing of additional evidence. Already a key finding has been undermined.
Andersen was the key consultant to Lowry’s department in the 1995 competition. He did not give evidence earlier in this decade because he wanted a financial indemnity from the State before doing so, and this indemnity was not granted. O’Brien gave him an indemnity in April and he is now giving evidence.
He outlined something which he said the tribunal just got plain wrong. The six bids for the competition were to be assessed quantitatively and qualitatively.
The former would involve scores being given to aspects of the bids; the latter would involve more subjective grades being assigned. Neither process would be determinative and the final assessment would use both exercises.
For reasons given in evidence the quantitative aspect of the inquiry “withered away”. Before it did, three successive drafts of a table where the bids had been scored and ranked were produced. In each one a consortium called Persona came ahead of Esat and at one stage it was the winner. The last draft showed Eurofone, a consortium that in fact came second last in the competition, as the best bid.
Andersen was very clear in his evidence yesterday. The statistical basis of the rankings was flawed and the outcomes could not be relied on to illustrate the relative values of the bids.
Yet he said that the legal team at an early stage latched on to the fact that one of the charts showed that Persona, which came second in the overall competition, was better than Esat and should have won.
In particular he mentioned Jerry Healy SC and Jacqueline O’Brien SC. He said it was his sense they were happy to see Persona as having deserved to have won the competition and that they pursued this as a “working hypothesis”.
“On numerous instances the tribunal has carried on their work on the basis that was the winner of part of the process.” This idea “flows through the entire provisional findings” and otherwise the tribunal could not have come to the “hostile” view that it did. The preliminary findings of the tribunal are “a culmination of bias”.
He painted a picture of a relationship with the legal team that made him distrustful and caused him to form the view that they didn’t want to hear from him because they didn’t like what he wanted to say.
He has been involved in more than 200 licence competitions around the globe and is a recognised expert.
He said he and his six colleagues, as well as the 17 Irish civil servants involved, agreed Esat deserved to win.
He saw no evidence of interference by Lowry. If he is correct, then what has the tribunal been up to?
