MORIARTY RULING:THE CHAIRMAN of the Moriarty tribunal yesterday ruled out questions to a key witness about allegations that the tribunal had a bias.
Mr Justice Michael Moriarty said he was not making the ruling in a defensive or “self-protective” way but because if the matter was raised, the counsel involved would have to be allowed give their evidence on the matter.
He would then have to rule on the issue but it was a well recognised principle that no one should be a judge in their own cause.
He announced his ruling as counsel for a number of parties were about to begin their examination of Danish consultant Michael Andersen. Prof Andersen was the lead consultant to the State in the 1995 mobile phone licence competition. Prof Andersen has said that in private dealings with members of the tribunal legal team in 2002 and 2003, he formed the view that they had a bias in favour of Persona, the consortium that came second in the competition.
The counsel appeared to believe that Persona should have won the competition and that something wrong had occurred, he said. He mentioned tribunal counsel Jerry Healy SC and Jacqueline O’Brien SC.
He said this view was reflected in the chairman’s confidential preliminary findings in November 2008, which he described as a “culmination of bias”.
The tribunal is investigating whether the then minister, Michael Lowry, interfered with the process so as to favour the winner, Esat Digifone.
Mr Justice Moriarty said Prof Andersen’s counsel, John Gleeson SC, would be allowed raise the issue in the context of his client’s dealings with the tribunal.
Jim O’Callaghan SC, for Esat’s founder Denis O’Brien, said the restriction announced by the chairman was “unjustified”. Bill Shipsey SC, for Dermot Desmond, a shareholder in Esat, said he was “shocked” by the ruling. Mr Lowry, for himself, also objected to the ruling.
Mr Justice Moriarty said Prof Andersen had contended that there was a bias in favour of Persona, though Michael McDowell SC, for the tribunal, had said there was no such bias.
He was satisfied that he was precluded from calling the tribunal counsel concerned, because of the degree of contact that had occurred between him and the tribunal counsel. Because he could not hear both sides he was not going to let Prof Andersen be questioned on the matter.
The chairman referred to the fact that Mr Healy had in the wake of the licence competition acted for Persona in intended judicial review proceedings. Some years ago Mr O’Brien’s solicitors had said this created no difficulty.
If the bias allegation arose in court proceedings in the future it might be that tribunal counsel could testify “and it could well be that they would welcome that opportunity”.
Mr Shipsey said that if the evidence was allowed Mr Justice Moriarty might learn something that would cause him to review his preliminary findings. The right to be heard must trump concerns that the chairman might have about appearing to be a judge in his own cause.
Mr Lowry, representing himself, said the ruling was “extraordinary”, but Mr Justice Moriarty said that if he heard evidence on the matter and ruled in favour of the tribunal counsel, Mr Lowry would say he was biased in the matter. Mr Lowry said he had “suffered enough” at the hands of the tribunal. No member of the tribunal’s legal team had sought to stand up for his constitutional rights.
His examination of Mr Andersen would take as long as it needed to take, he said. “I’m telling you chairman you can put away your stopwatch.”
Prof Andersen has said he can give evidence until Friday but will not be available again until the latter half of next year. Mr Lowry, Mr Gleeson and counsel for the State have yet to begin their questioning.
