Desmond fails in bid over Moriarty rulings

Dermot Desmond yesterday failed in his bid to have decisions of the High and Supreme Court over the conduct of the Moriarty Tribunal set aside.

The millionaire businessman sought declarations that the High Court, in 2003, and the Supreme Court, in a 2004 appeal, had been misled by reason of fraud on behalf of the tribunal.

The tribunal was set up to inquire into payments to the late former taoiseach Charles Haughey and to former communications minister, Michael Lowry, now an independent TD.

It had applied to have Mr Desmond’s case dismissed because it was frivolous, vexatious, was bound to fail and was an abuse of the court process.

Yesterday, Ms Justice Elizabeth Dunne said she was not satisfied Mr Desmond’s case, taken at its height, had alleged fraud in the true sense or that his statement of claim disclosed a reasonable cause of action.

His case was one that must fail, she said.

It arose out of separate judicial review proceedings brought by Mr Desmond against the tribunal over its use of a 1993 report over the ownership of the Johnston Mooney and O’Brien site. The Glackin Report made findings critical of Mr Desmond.

When dealing with the awarding of the first mobile phone licence to ESAT Digifone, as it related to Mr Lowry, the tribunal heard evidence from John Loughrey, secretary of Mr Lowry’s department at the time, who said he had read Glackin and was aware of its criticisms.

Mr Desmond brought judicial review proceedings claiming the tribunal had not afforded him fair procedures because the contents of the report were not relevant and inadequate notice about the likelihood of witnesses being examined about it meant his ability to defend himself was compromised.

The High Court dismissed those proceedings, saying the tribunal was entitled to, if not obliged to, investigate how the evaluation team for the mobile phone licence was under the erroneous impression as to the true ownership of the consortium behind ESAT. The evaluation team was under the impression that certain financial institutions owned part of ESAT when Mr Desmond had actually acquired that particular interest a month before the licence was issued in October 1995, the High Court noted in its judgment.

The tribunal therefore necessarily required to investigate whether Mr Desmond, or investment firm IIU which was beneficially owned by him, had avoided the evaluation process. The tribunal was also required to inquire into whether this was the result of any intervention by, or exertion of influence by, then minister Mr Lowry, the court also said.

The Supreme Court, in 2004, agreed, dismissing Mr Desmond’s case.

He later brought a new challenge seeking to have both court decisions declared a nullity claiming, among other things, that the tribunal permitted evidence given by tribunal solicitor John Davis to both the courts which was misleading and untrue.

Yesterday, Ms Justice Dunne said the high water mark of Mr Desmond’s case seemed to be found in his own replies to queries from the defendant in advance of the case.

Mr Desmond said, in those replies, that he had not pleaded the statements made by Mr Davis, relating to evidence given to the tribunal by Mr Loughrey, were made fraudulently, the judge said. What Mr Desmond said he was saying was the two courts were presented with misleading evidence by the tribunal, the judge said.

There was an absence from the facts of this case, she said, of any material that would suggest there was deliberate and purposeful dishonesty on the part of tribunal in putting forward Mr Davis’ evidence to both courts.

There was “simply nothing” in Mr Desmond’s pleadings which alleges fraud in the true sense which satisfy the first requirement for setting aside the judgments of those two courts on grounds of fraud. There was also nothing to suggest the courts relied on the impugned averments of Mr Davis in reaching their decisions or that this went to the root of their decisions.