The High Court has found there is merit in the argument that the Moriarty tribunal did not do all it could to take evidence from two potential witnesses based outside the jurisdiction.
The finding was made in a lengthy written judgment in a case taken by businessman Mr Denis O'Brien and concerning the tribunal's inquiry into matters linked to Doncaster Rovers Football Club Ltd.
A short verbal ruling by Mr Justice Herbert was given last year and the 67-page written judgment was released shortly before Christmas. It has not been previously reported.
Mr O'Brien is appealing the judgment to the Supreme Court and the case is likely to be heard shortly.
Mr O'Brien sought leave to seek a judicial review of the tribunal's decision to hold public hearings into the connection, if any, between Mr Michael Lowry and Doncaster Rovers Football Club Ltd.
Mr O'Brien has told the tribunal the company is 100 per cent owned by his family trust. It was purchased in 1998 for £4 million (€5 million).
One of the arguments made by Mr O'Brien to the High Court was that the public hearings should not go ahead when two potential key witnesses would not be attending.
Mr Kevin Phelan, a businessman based in Northern Ireland, and Mr Christopher Vaughan, a solicitor based in England, have refused requests to give evidence in Dublin.
Mr Justice Herbert found Mr O'Brien had "an arguable case" and one that "has a reasonably good chance of succeeding", and that the tribunal should exert all its powers to procure oral evidence from Mr Phelan and Mr Vaughan.
The tribunal has the right to approach UK courts to seek the taking of evidence on commission.
Mr Phelan was involved in the sale of the company, which owns a lease on the Doncaster football grounds, to Westferry Ltd, an Isle of Man company owned by the O'Brien family trust. Mr Vaughan acted as solicitor to Westferry.
Mr Vaughan has said in correspondence to the tribunal, and in a private interview in London with a tribunal barrister, that Mr Lowry was not involved in the Doncaster transaction.
He said a letter he wrote in September 1998 to Mr Lowry, which presumes Mr Lowry's involvement in the transaction, was written in error.
Mr Justice Herbert said the tribunal must exercise the powers it has in relation to securing the evidence, "and be seen to do so".
