THE PRELIMINARY findings of the Moriarty tribunal on the 1995 mobile phone licence competition have been attacked by the lead consultant to the process.
International telecoms expert Prof Michael Andersen said members of the tribunal’s legal team had developed an erroneous “working hypothesis” some years ago.
This “bias” had culminated in the confidential provisional findings issued by Mr Justice Michael Moriarty in November 2008 that contained a misunderstanding of what had occurred, he said.
Prof Andersen, who acted as lead consultant to the 1995 mobile phone licence competition won by Denis O’Brien’s Esat Digifone, said the tribunal had “little interest” in finding out what really happened during the competition.
Prof Andersen is a leading adviser to telecoms licences competitions and has advised on more than 200 such contests. He said he saw no evidence of any interference in the 1995 competition by the then communications minister Michael Lowry.
In response to questions from senior counsel Michael McDowell, for the tribunal, Prof Andersen said the tribunal’s legal team had a “working hypothesis” that another consortium, Persona, had won an aspect of the competition, when they had not. He believed this flowed through the entire preliminary findings.
“Otherwise the tribunal could not arrive at the hostile view it does in the provisional findings,” he said.
He said tribunal counsel Jerry Healy and Jacqueline O’Brien both had the opinion the Persona consortium had won a particular aspect of the contest but they were wrong.
He said it was because of the hostile treatment he had received from the tribunal’s legal team in 2002 and 2003 that he had wanted an indemnity that would cover not just his legal costs, but any damages that might arise from the tribunal’s work. However, the State decided not to grant the indemnity.
He believed the tribunal did not want him to come to give evidence as the legal team did not agree with the evidence he would give. The hostility of the tribunal “escalated to a level where I could not have any normal communication with it”.
He had agreed to give evidence in April after being approached by solicitor Tom Reynolds for Mr O’Brien and was given an indemnity by Mr O’Brien. Telenor, the Norwegian telecoms company that was a shareholder in Esat, had asked him to give evidence some years ago.
He said the tribunal had “little interest in getting down to what happened in the competition in 1995”.
The tribunal’s inquiry started in 2002 and is expected to cost well in excess of €100 million. Since the provisional findings were issued in 2008, evidence from two officials in the Attorney General’s office has led Mr Justice Moriarty to accept that he made significant errors in relation to a key aspect of his findings.
Prior to this, the tribunal had failed to accept evidence on the matter from senior counsel Richard Nesbitt, who had advised the Attorney General’s office in 1996 in relation to the licence being issued to Esat.
The High Court is to rule today on applications by Mr O’Brien and businessman Dermot Desmond to prevent Mr McDowell continuing to examine Prof Andersen at the tribunal.