The businessman Denis O'Brien has said he is seeking to have the Moriarty tribunal state its position on the "ground rules" that will apply when the tribunal chairman writes his report, but is not seeking to "restrict" the tribunal, writes Colm Keena, Public Affairs Correspondent
The tribunal chairman, Mr Justice Moriarty, is expected to issue his second report some time next year, concentrating on payments to the former minister for transport, energy and communications, Michael Lowry, and any related decisions.
Mr Justice Moriarty, in his report, will, among other matters, make findings as to whether Mr Lowry received any financial assistance from Mr O'Brien, or in any way interfered in the 1996 awarding of the State's second mobile phone licence to Mr O'Brien's company, Esat Digifone.
Mr O'Brien, who has said he has not provided any financial assistance to Mr Lowry and won the licence solely on the basis of the quality of his company's submission for it, has recently made a legal submission to the tribunal on the issues of evidence and procedure.
The tribunal had written to all parties with an interest on the issue and sought their views. A public hearing may be held shortly on the matter. In his first report, concerning payments to the late Charles Haughey, Mr Justice Moriarty adopted a stance on rules of evidence and standards of proof that caused concern to Mr O'Brien and others.
Mr O'Brien, in his submission, has said the judge must apply a heightened civil standard of proof, given the impact negative findings could have on an affected party, rather than considering the findings to be just expressions of "reasoned opinion", as was the case with the first report.
The tribunal's response to the submissions is likely to have consequences for all future tribunal reports, including the Mahon tribunal. In a statement yesterday Mr O'Brien said the questions that need to be addressed "are essential matters of constitutional law and natural justice".
He said there was no question of his having initiated legal action, as had been indicated by statements made in the Dáil. He said he wanted the tribunal to "properly articulate its position in respect of fundamental legal issues of concern for the benefit of all parties. It is of the utmost importance, and indeed the very basis of fair procedure, that all parties know and understand [even at this very late stage] the ground rules that will be applied by the tribunal leading to findings of fact."
He said he was awaiting "imminent confirmation" of a date for the making of oral submissions by parties, including counsel for the public interest on behalf of the Attorney General.