The Moriarty (Payments to Politicians) tribunal is preparing its second and probably final report and a number of major battles are under way behind closed doors that may yet emerge into the public domain, writes Colm Keena, Public Affairs Correspondent.
The battles, depending on how they pan out, could have consequences for not just the Moriarty tribunal and the parties that have been inquired into by it, but also for the Mahon (planning) tribunal and its inquiries; including its current inquiry into the finances of Taoiseach Bertie Ahern.
In so far as Moriarty is concerned, it is seeking to bring finality to its marathon and very expensive inquiry into the awarding of the State's second mobile phone licence to Denis O'Brien's Esat Digifone in the mid-1990s, when Michael Lowry was minister for communications.
It is also due to report on its inquiries into financial dealings concerning Mr Lowry, and whether Mr O'Brien gave him any financial support. This second matter, the possibility of financial links, led to the former matter, the licence inquiry.
Earlier this week, chairman of the Moriarty tribunal Mr Justice Michael Moriarty issued a ruling on a matter that has troubled a number of the parties involved in the phone licence issue, not least the civil servants who were questioned at length some years ago about their handling of the licence competition.
Because of a court ruling known as the O'Callaghan ruling, tribunals cannot now withhold relevant documents from parties appearing before a tribunal.
During the earliest stages of the Moriarty inquiry into the phone licence issue, it commissioned a report on the competition process from economist Dr Peter Bacon.
The civil servants who ran the competition, and selected the winner, did not know of the report and its contents at the time they were quizzed at length - and in public - by the tribunal. Following the O'Callaghan ruling, however, the parties involved in the inquiry learned of the report, and were annoyed.
Some have expressed strongly the view that the report coloured the tribunal's questioning of civil servants, and that this was unfair as the civil servants were not aware of the report's existence and content.
The tribunal, following submissions, indicated it was going to call Dr Bacon. Mr O'Brien went to the High Court and the Supreme Court, seeking to prevent Dr Bacon being called as a witness by the tribunal. The tribunal opposed Mr O'Brien in the courts, and was successful.
Now, this week, the tribunal chairman has said he does not intend calling Dr Bacon, as he is not an "expert" in the matter of mobile phone licence competitions, as expert would be defined by the courts.
Mr O'Brien, in a lengthy response to Mr Justice Moriarty's ruling, has welcomed the change of heart, but has reserved his position.
As this reporter understands it, the difficulty faced by the tribunal is this: It can be argued that the failure to inform the witnesses about Dr Bacon's report was a failure of proper procedure, and the evidence on the licence competition is therefore tainted. Such an argument, if successful, could threaten the right of the tribunal to produce any report on the licence issue at all.
A number of major players are involved. As well as the department and Mr O'Brien, they include: Mr Lowry; Dermot Desmond (a former shareholder in Esat Digifone); and Norwegian telecoms company and former Esat Digifone shareholder Telenor. Senior legal advisors for many of these parties are understood to be involved in correspondence with the tribunal on the issue of Dr Bacon and the competition inquiry.
Mr O'Brien, in his statement this week, said: "None of these fundamental procedural flaws on the part of the Tribunal and the resultant serious [possibly fatal] impact on all of the evidence given to date before the Tribunal in respect of the licence process were addressed" in the chairman's ruling. The key phrase is "possibly fatal".
The first Moriarty report, on the finances of the late Charles Haughey, caused great disquiet within the camps of some of the parties involved in the phone licence inquiry. In that report Mr Justice Moriarty made clear something that has not has a huge affect on the public mind. Tribunals do not operate by rules of evidence that apply in courts, and the findings of a tribunal do not have to have regard to the tests that judges in courts have to apply to their findings.
Tribunal findings do not have to be on the balance of probabilities, let alone beyond reasonable doubt. As Mr Justice Moriarty made clear, he is simply asserting an opinion. This gives him some latitude. Tribunal chairmen, if they spot something that quacks like a duck, or waddles like a duck, can state that it may well be a duck. That sort of latitude is not allowed in courtrooms, in order to safeguard against miscarriages of justice.
In his statement this week, Mr O'Brien said: "I am also presently awaiting a response from the tribunal to numerous written requests made on my behalf in respect of fundamental issues such as what constitutes admissible evidence and what are the appropriate legal standards to be applied by Mr Justice Moriarty when he comes to issuing his report. These issues were raised as far back as May 2001. To date, the Tribunal has declined to respond substantively in respect of these matters. I will continue to press this matter until a clear and adequate response is provided."
In other words, Mr O'Brien may seek, in the courts, to query the justice of how the tribunal system operates and the way tribunal reports are produced. Any victory, partial or complete, will affect the nature of all future tribunal reports.
It would also have a retrospective effect on the standing of past reports. That said, the whole tribunal process is based on the weakening of certain standards, in order to facilitate inquiries into matters that are causing public disquiet, so there are very strong arguments on the tribunal's side. A battle royal may be about to commence.