TRIBUNAL WORKINGS: ANALYSIS:Judge had to apologise for provisional report's errors, while an expert gave a damning verdict, writes COLM KEENA
THE CREDIBILITY of the Moriarty tribunal received a severe battering in the two years after November 2008, when it issued its confidential provisional findings.
The tribunal chairman, Mr Justice Michael Moriarty, gave parties affected by adverse findings an opportunity to respond to those findings in private, prior to the issuing of his final report. He also allowed parties request the calling of witnesses in response to his provisional findings.
As part of this process two of the tribunal’s key provisional findings in relation to the mobile phone licence issued to Denis O’Brien’s Esat Digifone in 1996 were called into question.
The tribunal took the unusual decision to call Richard Nesbitt SC, who acted for the Department of Transport, Energy and Communications in its dealings with the tribunal, and who provided legal advice to the attorney general’s office in 1996, in relation to the licence.
Nesbitt’s evidence was that he gave advice in 1996 that it was permissible to issue the licence to Esat though the shareholders in the consortium were different to those identified when the consortium entered the competition for the licence in 1995. (The difference was that businessman Dermot Desmond had become a 20 per cent shareholder, in the place of four financial institutions that had been originally envisaged as taking up that shareholding.)
Nesbitt said that even if the written advice he gave at the time didn’t address the issue, and he argued that it did, he had a “crystal clear” memory of giving the advice orally to officials in the AG’s office. Tribunal barrister John Coughlan SC put it to Nesbitt that his evidence wasn’t credible.
It later emerged that Mr Justice Moriarty did not accept Nesbitt’s evidence.
The issue was important as the judge in his preliminary findings said the granting of the licence to Esat was illegal. However, if the AG’s office and the department had been advised at the time that it was legal, then there was no reason to consider that the licence might have been issued in the face of objections or misgivings for corrupt or other reasons.
The calling of Nesbitt only occurred after persistent pressure was put on the tribunal by Esat’s former shareholders and the State. After Nesbitt’s evidence was rejected there were calls that officials from the AG’s office be allowed to give evidence, and again this was resisted by the tribunal.
However, in the end barristers Denis McFadden and John Gormley, from the AG’s office, were called. They supported Nesbitt’s evidence, both in the sense of saying his written advice covered the matter, and was seen at the time as doing so, and in saying that they could remember his oral advice to the same effect. As a result of their evidence the tribunal judge changed his mind and accepted Nesbitt’s evidence.
But it was even worse than that. It emerged as a result of McFadden’s engagement with the tribunal that he, Gormley and Nesbitt had met the tribunal’s legal team in private in 2002 and had given their view of the 1996 advice. Coughlan, who challenged Nesbitt when he was in the witness box in 2009 by saying it was the first time Nesbitt had said his legal advice in 1996 addressed the shareholding issue, was at the 2002 meeting where the legal team was told just that. (It appears Nesbitt may have forgotten about the 2002 meeting.)
The memo of the 2002 meeting had not been circulated by the tribunal as it should have been until after the meeting was mentioned by McFadden in his 2009 statement of intended evidence. The judge apologised for this in 2009.
He also apologised for having stated in a ruling he had made in 2008 that the AG’s office had confirmed to the tribunal that the 1996 advice from Nesbitt did not cover the shareholder issue. The opposite was the case. While the judge apologised for the two errors, he did not explain how it was that such mistakes were made.
The other blow to the tribunal came in 2010 by way of Danish telecoms consultant Prof Michael Andersen. Andersen was the lead adviser to the 1995 licence competition that was won by Esat. (The competition gave it an exclusive right to negotiate for the licence.)
Andersen did not give evidence to the tribunal’s original sittings, for reasons that need not be gone into. But after the preliminary findings came out he was contacted by lawyers for Denis O’Brien and agreed to come to Dublin.
O’Brien agreed to indemnify him against any costs. It took some time before the appearance was organised, but when Andersen got into the witness box he made it crystal clear that he believed the tribunal was operating according to a bias.
The tribunal, he said, had a “predefined theory” about the licence competition that he had noticed in his private dealings with the tribunal as far back as 2002.
The tribunal’s theory was based on assumptions that were wrong. He argued that the tribunal legal team did not understand the process it had spent such a long time scrutinising.
There was a “consistency of error” emanating from the tribunal, he said, and the preliminary findings were a “culmination” of bias. He insisted the competition was won fairly by Esat and, given his huge experience in such competitions, he would have noticed immediately if any effort was made to favour any application.
During the hearing of Andersen’s evidence Desmond’s barrister Bill Shipsey SC said it raised the “appalling vista” that the tribunal’s decision in 2002 to initiate its mammoth licence inquiry was a mistake.
Andersen in his evidence said he had been involved in hundreds of licence competitions around the world but had only become involved in two legal disputes. Both had been in Ireland. He said he had thought about this but didn’t know why it was so.