Supreme Court dismisses O'Brien appeal

The Supreme Court has dismissed an appeal by millionaire businessman Denis O'Brien against a High Court order allowing the Moriarty Tribunal to hold public hearings into the 1998 purchase of Doncaster Rovers Football Club by a company controlled by an O'Brien family trust and the purported connection of former Minister Michael Lowry to that purchase.

In a majority decision, four of the five Supreme Court judges dismissed the challenge by Mr O'Brien against a High Court decision last October that the tribunal could go ahead with public hearings.

Ms Justice Susan Denham, in a judgement supported by Chief Justice John Murray, Mr Justice Hugh Geoghegan and Mr Justice Nial Fennelly, said that the purpose of the Tribunal's inquiries was to restore public confidence in our democratic institutions.

She said that a technical or legalistic approach to intrepreting the terms of reference may give rise to the view that the inquiry has not been made into all the relevant transactions.

The Tribunal has to consider whether various property transactions, ie Doncaster, Cheadle and Mansfield, and the related financial transactions, were intended as a substitution for a payment of Ir£147,000 to Michael Lowry which was reversed on the day of the establishment of the McCracken Tribunal and whether these transactions were part of a train of transactions related to the conferral of benefit on Michael Lowry.

The judge said it was reasonable and open to the Moriarty Tribunal to interpret its terms of reference as requiring it to inquire into whether a payment was made to Michael Lowry during a period when he held public office as including the period after the adoption of the terms of reference, in circumstances giving rise to a reasonable inference that the motive for making the payment was connected to or had the potential to influence the discharge of his office.

Ms Justice Denham also said that she was satisfied that the High Court judge was correct in refusing to prevent the tribunal moving to public hearings.

"While there are a series of stages in an inquiry, the core function of a tribunal is to dispel public disquiet. Thus the public hearings are a critical aspect of the process. It is quintessentially a matter for the tribunal to determine the matters to proceed to public hearing.''

"This tribunal is continuing to carry out an inquiry critical to preserve the purity and integrity of our public life. The tribunal is inquiring to see if the specified evils exist - so that if they do they may be rooted out. Of equal importance, if it be found that evil does not exist, the tribunal may so report so that if that is the case the public may be satisfied that in reality there is not substance to prevalent rumours and suspicions. Either conclusion is important to public life,'' she said.

The High Court was told last year that Doncaster was purchased for some €4.3m in August 1998 by Westferry Limited, a company controlled by the Wellington Trust, a trust established by Mr O'Brien for the benefit of himself and his immediate family. Both Mr O'Brien and Mr Lowry have stated that Mr Lowry had no involvement in the Doncaster transaction. Mr O'Brien contended there is no evidence to support the proposed public inquiry.

In his dissenting judgment, Mr Justice Adrian Hardiman said that there was an easy route provided by statute for seeking an expansion of the tribunal's terms of reference and it was for the Oireachtas and not the courts or the tribunal to decide whether this extension should take place.

Without it, he said, he did not believe that the Doncaster Rovers issue is within the scope of the tribunal's inquiries.


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