COURT HEARING:A HIGH Court judge will rule today on applications by Denis O'Brien and Dermot Desmond to prevent Michael McDowell from continuing to examine a key witness at the Moriarty tribunal.
Mr Justice John Hedigan is being asked to permit a judicial review of, and to grant an injunction halting, Mr McDowell’s questioning of Danish consultant Prof Michael Andersen, who oversaw the awarding of the State’s second mobile phone licence.
The businessmen claim McDowell should not have been engaged as tribunal counsel to examine Andersen on grounds of objective bias relating to his roles in public life over the last 15 years, including as a Progressive Democrats TD, attorney general and minister for justice.
Yesterday, on the second day of the hearing, Brian Murray SC, for the tribunal, said the claims of objective bias against both Mr McDowell and, by extension, the tribunal itself, “simply did not get off the ground”.
Lawyers for the businessmen have argued a reasonable person would perceive an objective bias on behalf of Mr McDowell given his role in public life over the last 15 years and therefore the tribunal was also “contaminated” by this.
Mr McDowell’s questioning of Mr Andersen continued in Dublin Castle yesterday as the court hearing took place. The applicants claim any findings in relation to Andersen’s evidence has consequences for them as they were both former shareholders in the Esat Digifone consortium which won the licence in 1995.
The court heard Andersen is available only until November 5th to give evidence and will not be available again until the middle of next year due to professional and family commitments.
In his submission, Mr Murray said this was a case unlike any other application about bias that a court had heard. The rules relating to allegations of bias could only be applied to a decision-maker, counsel said. Mr McDowell was not involved in that decision-making and was only acting in a very limited capacity for the tribunal – questioning Andersen.
The very exercise of Mr McDowell examining a witness could not be amenable to the rules about bias because the very nature of his role, as a barrister for the tribunal, was a “conflictual function”, counsel said.
The businessmen were also claiming, “by some sort of osmosis”, the tribunal itself was biased as a result of Mr McDowell being biased. This was a logically impossible sequence of propositions. Unless there was some legal authority to say otherwise, and Mr Murray did not know of one, the businessmen’s application “simply does not get off the ground”.
While the threshold for getting leave to seek judicial review was low – establishment of an arguable case – this application simply did not meet that, counsel said.
In considering whether an injunction should be granted, Mr Murray argued the court had to decide whether there was an arguable case but also whether the balance of convenience was for or against granting an injunction.
The balance of convenience did not favour an injunction because no prejudice had been identified to the businessmen’s rights or interests if Mr McDowell’s examination continues, counsel said.
Bill Shipsey SC, for Mr Desmond, argued the role of a barrister in a tribunal differed from a barrister before a court in that a barrister can have an impact on the deliberative process of the sole member of the tribunal, Mr Justice Michael Moriarty.
If, as it was very likely, Mr McDowell consulted Mr Justice Moriarty about the evidence of Mr Andersen, that was relevant to whether fair procedures were being operated, Mr Shipsey said. All his client was seeking was to vindicate his rights and there was no reason why, if an injunction was granted, the tribunal could not continue its work with a counsel other than Mr McDowell.
Jim O’Callaghan SC, for Mr O’Brien, said Mr McDowell was very much part of the deliberative process of the tribunal and that role gave rise to the contamination of the tribunal.
Mr O'Callaghan, who had put forward 10 reasons alleging objective bias against Mr McDowell, said yesterday he wanted to add another ground based on a statement made by Mr McDowell outside the Dáil on October 3rd, 2006. According to a report in The Irish Times, Mr McDowell made a statement concerning contributions to then taoiseach Bertie Ahern in which he said "ethics cuts both ways" and some people would have "a lot of answering to do" when the second report of the Moriarty tribunal was published.
Mr O’Callaghan said this was a threat to political opponents from someone now “within the tent” of the tribunal. Any reasonable person hearing this would have a fear there would not be a fair and reasonable outcome to the Moriarty report, counsel said.