The chairman of the Moriarty tribunal has described as "utterly mistaken" a key aspect of a legal submission made to him by the businessman Denis O'Brien on the standard of proof he should apply in his forthcoming report.
Mr Justice Michael Moriarty yesterday posted a ruling on the issue on the tribunal website, www.moriarty-tribunal.ie, in which he said he saw no reason for departing from the approach he adopted in his first report, which concerned payments to the late Charles Haughey.
He said he did not deem it necessary to hold a public hearing to facilitate oral submissions on the issue. Mr O'Brien and other parties have made submissions to the chairman on the issue, although the content of the other submissions is not known. The forthcoming report will concentrate on payments to former minister for transport, energy and communications, Michael Lowry and will include the tribunal's findings on its inquiry into the awarding of the State's second mobile phone licence to Mr O'Brien's Esat Digifone in 1996.
Mr O'Brien issued a statement last month in which he said he expected public hearings on the issue would be held. In his submission, he argued the chairman should apply the heightened civil standard of "substantial probability" when arriving at his findings.
In his ruling, the judge said he would not depart from the approach of his first report. That meant "the civil standard, a flexible approach, proportionate to the nature and gravity of the matters arising", would be applied.
He quoted from a passage in his first report, where he wrote that his findings were "in no sense findings of either criminal or civil liability in law, and represent no more than what should be a reasoned and informed expression of opinion".
Mr O'Brien's submission took issue with this description and argued it constituted a departure from earlier tribunals.
The judge said the "suggestion that because the conclusions in a report represent no more than a reasoned and informed expression of opinion, this in some way reflects a new standard of proof is utterly mistaken. These words are not a description of the standard of proof but of the product of applying a standard of proof, a description of the basis on which findings are made and/or conclusions are reached".
He said the first report made it clear the tribunal had opposed applying "a casual or whimsical standard" to arrive at its findings. The judge said the findings of a tribunal have no binding consequences in criminal or civil law, but it was recognised they can still "very significantly affect the reputation or other interests of persons involved".
Whatever "procedural flexibility" might be accorded to a tribunal, it still had to "apply the same care, diligence and vigilance" applied by those adjudicating adversarial court disputes.
"Subject to the foregoing, it is clearly impracticable to seek to formulate an exact definition of the requisite standard of proof that must be satisfied before making findings on matters of great seriousness within the terms of reference, but in addressing all individual instances, the tribunal will have due regard to the submissions made" to it and the authorities cited, he said.
Mr Lowry said he would consult with his legal team in respect of the ruling. A spokesman for Mr O'Brien made no comment.
