A senior civil servant has expressed doubts about the veracity of claims that Mr Michael Lowry had conversations with Mr Denis O'Brien concerning the Esat Digifone application for the State's second mobile phone licence.
Mr Martin Brennan, the civil servant who chaired the committee which selected the winner of the 1995 competition, said that since he had heard the tribunal's lengthy opening statement on the competition, he had "formed views" on what was going on within the Digifone consortium which it would be "dangerous and invidious" for him to outline.
He said there was "gaming" going on within the consortium which was outside the evaluation process.
"It seems to me that Denis O'Brien told other people that Michael Lowry said certain things to him. I would have reservations as to whether that part of that conversation ever took place."
Mr Brennan was referring to a statement of intended evidence from Mr Per Simmonsen, of Digifone consortium member Telenor. In the statement, Mr Simmonsen said he was told by Mr O'Brien in 1995 that the then minister had said to Mr O'Brien that Mr Dermot Desmond's IIU Ltd should become involved in the Digifone consortium.
Mr Simmonsen, in his statement, has said he was told by Mr O'Brien in late September 1995 that Mr O'Brien and Mr Lowry had met in a pub earlier that month and that during the conversation Mr Lowry had suggested that IIU become involved in the Digifone consortium.
Mr O'Brien and Mr Lowry have said they met in a Dublin pub in the wake of an All Ireland final. However, they have said they discussed the match and the fixed line telephone business but not the mobile phone licence competition.
In September 1995 Mr O'Brien was in discussion with IIU and Mr Desmond in relation to IIU becoming involved in the Digifone consortium. A letter was sent by Mr Michael Walsh, of IIU, to Mr Brennan on September 29th, 1995, stating that IIU was now underwriting the "circa 60 per cent" of Digifone which was to be taken up by parties other than Telenor.
Mr Brennan said it would have been clear to the Digifone consortium following its presentation to the Department on its bid in early September, that there was a problem with the financial aspect of the bid and particularly that part of it not covered by Telenor. He said this would have been clear from the "probing" which occurred during the presentation.
The letter from IIU in late September was sent back by the Department and was not considered as part of the competition process, as the closing date for submissions had passed. Mr Brennan said he did not suggest to Mr Lowry or to anybody else that any additional material would be accepted from any consortium.
Mr Brennan was not in Dublin on the day the IIU letter was received and it was opened by another civil servant who was on the selection committee, Mr Fintan Towey. Mr Towey decided the letter should be returned and its contents not disclosed to the committee members.
Mr Brennan was told of the fact of the receipt of a letter concerning the Digifone consortium but was not told of the content. He agreed with Mr Towey's decision to send the letter back. It was returned to Mr O'Brien under cover of a letter signed by Mr Brennan. Mr Brennan said he did not know when signing the covering letter that the letter about IIU had come from IIU and not from Digifone.
He said that Mr O'Brien was taking "a bit of a risk" sending in a further submission after the closing date and it may have been for this reason that the letter came from a third party, IIU. This gave "plausible deniability" to Mr O'Brien if the sending of the letter became an issue.
Mr Jerry Healy SC, for the tribunal, said that if the contents of the letter were considered it would have had to prompt the committee into wondering "what was going on with this consortium". Mr Brennan agreed.
The chairman, Mr Justice Moriarty, put it to Mr Brennan that it was "less than ideal" that there had been a purported change in the financial element of the Digifone bid and the rest of the committee did not know this. Mr Brennan said it had been decided that no additional material would be accepted from the bidders. The tribunal adjourned until Tuesday.
