The chairman of the Moriarty tribunal has said he is not going to allow evidence be heard about allegations of bias against two members of his legal team.
He said it was not possible for him to sit as a judge on the issue, given his close involvement with the legal team. He made his surprise announcement at the beginning of today's sitting, as counsel for a number of parties were about to begin the cross examination of the lead consultant to the 1995 mobile phone licence competition.
Mr Justice Michael Moriarty said he was not going to allow counsel for parties before the tribunal to ask Danish consultant Michael Andersen about meetings with tribunal counsel Jerry Healy SC and Jacqueline O'Brien SC. If he allowed that he would have to allow the barristers for the tribunal give their side of the story, and rule on the matter.
However, it was well known that a judge should not sit in judgment on his own case. He said his ruling was not a "defensive or self protective" one.
Prof Andersen has said that in meetings with Mr Healy and Ms O'Brien some years ago, as part of the tribunal's private phase of inquiry, he noted a view on their part that Persona, and not Esat Digifone, should have won the 1995 mobile phone licence competition.
He believed they were convinced of this view and that it fed into Mr Justice Moriarty's 2008 confidential preliminary findings on the issue. He called the findings a "culmination of bias".
Bill Shipsey SC, for businessman Dermot Desmond, said he was "shocked" by the chairman's announcement, in part because the judge had not heard submissions on the issue before announcing his decision. He said the decision created the appearance that "you do not want criticism of your counsel to be aired".
Jim O'Callaghan SC, for Mr O'Brien, said the ruling was an "unjustifiable" restriction. The effect of the ruling was that it was "defensive" of the tribunal.
Former communications minister Michael Lowry, representing himself, said the ruling was "extraordinary protectionism". Mr Justice Moriarty interrupted to say if he allowed the counsel give evidence and found in their favour "you would be saying I was totally biased in their favour".
Mr Lowry said when his turn came he would take as long as he wanted to question Prof Andersen. "I'm telling you chairman you can put away your stop watch".
Prof Andersen is available to give evidence until Friday afternoon, after which he says he will not be available again until the second half of next year.
