MORIARTY TRIBUNAL:THE EMERGENCE of Dermot Desmond's IIU Nominees Ltd as a shareholder in the Esat Digifone consortium remained an issue right up to the issuing of the licence, the Moriarty tribunal heard yesterday.
However, Fintan Towey, a civil servant in the Department of Transport, Energy and Communications involved in the licencing process, told the tribunal “a line in the sand” was drawn for him in relation to the legalities of the issue, once he received advice from Richard Nesbitt SC, through the offices of the Attorney General.
He said the concerns that existed after that had to do with “presentational matters” rather than with legal concerns.
Mr Towey was responding to questions from Jacqueline O’Brien SC, for the tribunal, who asked him where in Mr Nesbitt’s advice was the issue of the IIU shareholding explicitly dealt with. Mr Towey said the advice dealt with the issue implicitly.
The tribunal has heard that the bid submitted by Esat Digifone envisaged 20 per cent of the consortium being owned by four institutional investors: AIB, Investment Bank of Ireland, Standard Life Ireland, and Advent International.
However, in April 1996, as the final negotiations for the awarding of the licence were taking place, the department was informed that IIU Nominees Ltd had replaced the institutions.
Legal advice on this and other issues was sought from Mr Nesbitt and the tribunal has queried whether the advice given by Mr Nesbitt dealt with the issue of the legality of Mr Desmond’s company taking up the shareholding subsequent to the bid.
“I was satisfied that there were no legal issues that needed to be pursued” after Mr Nesbitt’s advice, Mr Towey said. It would be “incredible” to think that the advice was constructed without regard having been made to the requests for advice that were made of Mr Nesbitt.
Mr Towey said he could recall a conversation with Martin Brennan of the department in which Mr Brennan said that in the light of the advice, there were no remaining legal issues. He said he did not recall further details of this conversation or believe that anyone else was there at the time.
Mr Towey said that meetings with representatives of Esat in the days prior to the actual awarding of the licence on May 16th, 1996, had to do with the presentation of the IIU involvement, which had become a public issue.
Memos read into the record showed the department and Esat representatives discussing how to “distract” media attention from the ownership issue during a press conference planned for the 16th.
Asked why the media wasn’t simply told that legal advice had been received to the effect that the involvement of IIU was legal, Mr Towey said it was “not always the best course to invite attention to a particular subject”. He said nothing was hidden in relation to the ownership of the consortium. However, Ms O’Brien said it was not mentioned that IIU Nominees had not been mentioned in the original bid for the licence.
