Moriarty Tribunal

13 years duration.

Investigation into payments to Charles Haughey and Michael Lowry

Denis O’Brien is on record saying that the Tribunal made a provisional finding that the second mobile phone licence was issued illegally to Esat Digifone.

This finding was based on a change of ownership to the consortium after it was selected as a preferred bidder in 1995 but before being formally awarded the licence in 1996.

Dermot Desmond’s IIU had taken a 20% stake initially designated for institutional investors.

The Department of Communications sought legal advice on this change of ownership from the Attorney General at the time who in turn sought advice from Senior Counsel Richard Nesbitt.

In 2002, the tribunal’s legal team met with the two officials -John Gormley and Denis McFadden – from the Attorney General’s office and were told that Nesbitt’s advice dealt with the ownership issue and approved the issuing of the licence. THIS MEETING WAS UNKNOWN TO MOST PARTIES INVOLVED IN THE TRIBUNAL UNTIL RECENT WEEKS. In the 2002 meeting, Jerry Healy for tribunal described Nesbitt’s opinion as “sh**e”.

In 2009, Nesbitt, in the witness box, confirmed his written advice of a decade earlier and stated that he gave oral advice that the ownership change was not a barrier to issuing the licence.

Senior Counsel for the Tribunal John Coughlan challenged the credibility of Nesbitt’s evidence.

A last minute decision by the Tribunal to hear evidence from the two officials from the Attorney General’s office – John Gormley and Denis McFadden – Nesbitt appears to have been vindicated. They confirmed that the Nesbitt opinion was regarded as having dealt with the issue by that office.

They backed up what Nesbitt had said about giving oral evidence. That backed up the Department of Communications officials who said that having had this advice, there was no problem awarding the licence to Esat Digifone. Interestingly, John Coughlan SC during McFadden’s evidence claimed that he had not been at the 2002 meeting but minutes of the meeting showed that he had been present.

Conclusion – This line of enquiry should have been dropped in 2002.

Comment – The senior counsel for the Department of Communications that the evidence represented an inconvenient truth and differed from the Tribunal’s working hypothesis.

Quote from Shane Coleman in the Sunday Tribune 28th March 2010. “Judge Moriarty admitted last week that he made an error when he said that in February 2008 that the Attorney General had confirmed in writing that the legal advice given by Nesbitt in 1996 did not address the change of ownership.

It has emerged that the Attorney General’s office wrote to the tribunal on at least seven occasions saying there was no such letter.”

There are of course many other issues at the tribunal involving the competition process and also possible links between Denis O’Brien and Michael Lowry that have to be reported on by the tribunal.

However this above issue is very worrying not least for the public who have paid for this cul-de-sac.