MORIARTY TRIBUNAL:AN ERROR while photocopying documents led to a tribunal note not being given to businessman Denis O'Brien for more than four years, the Moriarty tribunal was told yesterday.
The note was taken by a tribunal solicitor at a meeting between economist Dr Peter Bacon and members of the tribunal's legal team in November 2004. The meeting discussed work being carried out by Dr Bacon as part of the tribunal's examination of the 1995 mobile phone licence competition won by Mr O'Brien's Esat Digifone.
The tribunal was sitting for the first time yesterday since June of last year, when public hearings were thought to have concluded.
The inquiry heard that the note in question should have been disclosed to Mr O'Brien as part of the normal circulation of documents by the tribunal, and it should have been disclosed during a High Court case taken in 2005 by Mr O'Brien against the tribunal, and in a subsequent Supreme Court appeal taken by him. The note was given to his solicitors last Friday.
Tribunal chairman Mr Justice Moriarty said that non-production of the document was a mistake for which he took responsibility.
"It should not have happened, but it did. Mistakes do happen."
However, Mr O'Brien's counsel, Eoin McGonigal SC, said the circumstances suggested "deliberate concealment of the document . . . for almost four years by the tribunal".
When reading out a letter from the tribunal which detailed how tribunal barrister Stephen McCullough had been responsible for overseeing the photocopying of all material identified for disclosure, Mr Justice Moriarty interrupted: "Let's cut to the chase, Mr McGonigal. You are putting in issue the integrity of your young barrister colleague?"
Mr McGonigal said he was not. The responsibility lay with "the people who are running this tribunal", he said. "It is you who are trying to use him as an excuse for something that should not have happened." The note consisted of short clauses associated with paragraphs of a letter which concerned the licence competition.
One part read: "A choice - interpretation or conspiracy". Another part read: "Asking us to consider a direct criticism of the process. Asking us to criticise." In both instances the remarks were attributed to Dr Bacon.
Mr McGonigal said one interpretation of the note could be that an effort was being made to influence Dr Bacon in his work.
On its face the note "appears to confirm that the tribunal may have directed Dr Bacon to prepare a report that would completely undermine the external expert consultants" who had worked on the licence competition.
John Coughlan SC, for the tribunal, said it was the tribunal which had furnished the document last Friday of its own initiative. The earlier non-disclosure of the note was an error, and when it was discovered by him on Thursday he had immediately informed the chairman, who directed that the matter be brought to the attention of Mr O'Brien's solicitors.
"The suggestion that the tribunal has been involved with Dr Bacon for the purpose of doing down anyone is one which the tribunal, and I as leading counsel for the tribunal, utterly reject."
Mr Justice Moriarty said he noted the "rather obvious point that if there were some monolithic organised conspiracy on the part of the tribunal, it would scarcely have been the case that the document was made available last Friday". He said that Mr O'Brien had alleged in the High Court that he was being treated unfairly and improperly by the tribunal, but the court had ruled that his complaint was "groundless".
