Businessman Denis O'Brien has secured leave from the Supreme Court to bring a legal challenge aimed at overturning a decision of the Moriarty tribunal to hold public hearings into his interest in the sale of Doncaster Rovers football club.
He has also won the right to challenge the allegation of a "connection" with former government minister Michael Lowry to that purchase.
The Supreme Court granted Mr O'Brien an interlocutory injunction restraining the tribunal holding public hearings about the Doncaster Rovers transaction until Mr O'Brien's judicial review challenge has been heard and determined by the High Court.
Doncaster Rovers was purchased in August 1998 by Westferry Ltd, part of the O'Brien family trust, from Donard Trading Ltd and Shelter Trust Anstalt.
The five judges of the Supreme Court yesterday agreed that Mr O'Brien, who has an address in Portugal, had established an arguable case that the tribunal's investigation of the Doncaster Rovers transaction took place subsequent to the establishment of the tribunal and might be regarded as falling outside its terms of reference. Mr Justice Fennelly, giving one of two judgments of the court, also concluded that Mr O'Brien had an arguable case that the decision of the tribunal to proceed to public hearing in respect of the Doncaster Rovers matter, on the basis of evidence available to it, was unreasonable "in the sense of irrational".
The judge said that in 1998 Mr O'Brien received a proposal from a Kevin Phelan for the purchase of Doncaster Rovers. On Mr Phelan's recommendation an English solicitor, Christopher Vaughan, was appointed to act for the purchase which took place in August 1998. Mr Vaughan had acted and was continuing to act for Mr Lowry in connection with other English property transactions.
Mr O'Brien contended Michael Lowry had no involvement at any stage in the Doncaster Rovers transaction. Mr Lowry had resigned from the government two years before the transaction though he continued to be a member of the Dáil and was so at the time of the transaction covered by the Doncaster Rovers module proposed by the tribunal, Mr O'Brien said.
Mr Justice Fennelly said he thought it fair to say that the tribunal did not state that it had in its possession any direct evidence that Mr Lowry had an interest in the Doncaster Rovers transaction and it had acknowledged that both Mr Lowry and Mr O'Brien had stated Mr Lowry had no interest at any stage.
The tribunal's assessment of the state of the evidence was perhaps best summarised in its letter to Mr O'Brien's solicitors of July 14th, 2004, in which it said it was prompted to pursue the inquiry by the fact that, while there was no reference to Mr Lowry in the title deeds and while Mr O'Brien, Mr Denis O'Brien snr, Mr Christopher Vaughan and Mr Denis O'Connor had denied any involvement on the part of Mr Lowry, there "was information from which it appears that Mr Christopher Vaughan, Mr Kevin Phelan, Mr Michael Lowry and Mr Denis O'Connor appear to have acted in such a way, on at least one reasonable view, to indicate that Mr Lowry did have such an involvement".
In a separate judgment, Mr Justice Nicholas Kearns said he believed Mr O'Brien had established an arguable case only on the ground that the investigation of a transaction which occurred after the establishment of the tribunal may arguably be regarded as falling outside the temporal limits of its terms of reference. He did not believe an arguable case had been made on the other grounds. The other members of the court were Chief Justice John Murray, Ms Justice Catherine McGuinness and Mr Justice Adrian Hardiman.