The licence issue: The Moriarty tribunal is not going to abandon its inquiry into the 1995 mobile phone licence competition, chairman Michael Moriarty ruled yesterday.
In a 36-page ruling posted on the tribunal website (www.moriarty-tribunal.ie), Mr Justice Moriarty said the confidentiality of the competition process may have been "breached".
He said he had not reached any final conclusions but was responding to submissions made in relation to the competition.
The tribunal is investigating whether the then minister for transport, energy and communications, Michael Lowry, interfered in the competition and whether any such interference benefited the winner, Denis O'Brien's Esat Digifone.
The competition was run by a team of civil servants and Mr Lowry was to have no role.
The consortium that came second in the licence competition, Persona, is suing the State in a case in which, if it won, it could be awarded damages of up to €100 million and possibly significantly more.
Mr Moriarty was responding to applications from Mr O'Brien and others that the inquiry should be abandoned.
Aspects of the evaluation process evolved as the various bids were being assessed, Mr Moriarty said. In one instance, an aspect of the bids was recalculated in a way that led to Esat Digifone going from an E grade to an A grade.
Mr Justice Moriarty said: "it may be reasonable to conclude that there were defects in the process. I recognise that no such process is, or can be expected to be, perfect. The presence of defects, even very serious defects, is not necessarily evidence of improper intervention or interference in any such process."
He said it was necessary to consider whether any deviation from the original model for the competition was prompted by outside interference. He listed seven "apparent deviations" from the confidentiality protocol which was to govern the competition.
These included a phone call between Mr Lowry and Fintan Towey, one of the civil servants on the evaluation team. The conversation could be characterised as "involving the conveying by Mr Lowry of his state of mind regarding the outcome or potential outcome of the process," the chairman said.
Another "apparent deviation" was a meeting in Hartigan's pub on September 17th, 1995, between Mr Lowry and Mr O'Brien, during which, according to some evidence, Mr Lowry may have discussed the Esat Digifone application with Mr O'Brien "and furthermore that he may have made a suggestion as to how a perceived defect in the Esat Digifone application could be rectified".
Mr Moriarty said an aspect of the pub meeting on which he would have to reach a conclusion was "whether, and if so to what extent, the involvement of IIU and Mr Dermot Desmond was discussed at that meeting and further the extent to which any such discussions were reflected in steps taken between September 18th, 1995, and September 29th, 1995, to substitute IIU/Mr Dermot Desmond" for financial institutions listed in the original bid. The items listed may indicate the extent to which the process was capable of being "penetrated" by Mr Lowry, the chairman said. The process may have been accelerated as it neared conclusion and there may have been confusion among some of the assessors, he added.
