BILLIONAIRE BUSINESSMEN Denis O’Brien and Dermot Desmond have lost their High Court attempts to prevent senior counsel Michael McDowell examining a key witness at the Moriarty tribunal.
Hours after Mr Justice John Hedigan refused to grant leave for judicial review proceedings challenging Mr McDowell’s engagement, lawyers for Mr O’Brien and Mr Desmond told the Supreme Court yesterday they intended to appeal the refusal. A date for the appeal has not yet been fixed.
Mr Justice Hedigan said Mr McDowell was clearly not part of the tribunal team, and had been retained as an independent counsel for a specific purpose.
Mr McDowell could not, in his role as a barrister, be seen to have a perceived bias, as alleged by the two businessmen, the judge said. Relevant case law showed counsel could only in the most exceptional circumstances be excluded from acting under rules relating to “objective bias” [a perception of bias] and “nothing of that nature” arose in this instance, he added.
Both businessmen had also sought an injunction restraining the tribunal retaining the services of Mr McDowell to examine a Danish consultant, Prof Michael Andersen, who oversaw the awarding of the second mobile phone licence to Esat Digifone.
They claimed Mr McDowell had conflicts of interests arising from his various roles in public life over the last 15 years as attorney general, tánaiste, minister for justice and as a Progressive Democrats TD. It was also alleged the tribunal was “contaminated” by this alleged objective bias.
It was claimed that, as minister for justice in 2005, Mr McDowell was collectively responsible for a cabinet decision to refuse to provide Prof Andersen with an indemnity over any evidence he would give to the tribunal.
In his ruling, Mr Justice Hedigan said this was an unusual application. He accepted tribunal counsel are in a different role from those in a normal civil or criminal court role.
Save for the most exceptional cases, rules of objective bias cannot apply to barristers, he said. The nature of their role in the legal system was that they are partisan and operate under the “taxi-cab rule” whereby they must, save for very limited instances, act for whoever comes along.
Mr Justice Hedigan said it was clear Mr McDowell was engaged as an independent counsel to obviate any problems that might arise between Prof Andersen and tribunal counsel. He found “novel” and “somewhat improbable” a proposition by the businessmen’s lawyers that any objective bias of Mr McDowell might infect the tribunal. He did not need to consider this as Mr McDowell was not part of the tribunal team.
The ground on which the businessmen brought their case had “no basis in law in this country”, the judge said. No arguable case had been made out, and he must refuse leave for judicial review.