O’Brien’s Moriarty Tribunal appeal fails

Billionaire businessman Denis O’Brien has lost an appeal against a 2011 High Court decision dismissing his claim that the Moriarty Tribunal had incorrectly restricted cross-examination of a key witness at its public hearings.

A five-judge Supreme Court unanimously dismissed the appeal in which he claimed there was a breach of fair procedures by sole tribunal member, Mr Justice Michael Moriarty, by limiting both the amount of time and the extent of the questions his lawyers could ask Danish telecommunications expert Michael Andersen.

Prof Andersen was managing director of the international consultants engaged by the Department of Communications in 1995 to assist civil servants in assessing six applications form the country’s second mobile phone licence, which eventually went to Mr O’Brien’s company, Esat Digifone. The tribunal, set up to examine payments to politicians Michael Lowry and Charles Haughey, examined the awarding of that licence by then communications minister Mr Lowry.

Mr O’Brien had argued that a declaration that fair procedures were not applied during part of the tribunal, which centred on payments to politicians Michael Lowry and Charles Haughey, would have an effect on the public view of the tribunal’s report.

If he got such a declaration from the Supreme Court, he could also consider moving to quash certain parts of the report and this could also have consequences for the issue of the tribunal’s costs, he argued.

The tribunal had opposed the appeal arguing the matter was moot as its report has been published and there has been no challenge by Mr O’Brien to its contents.

In one of three separate judgements dismissing the appeal, Chief Justice Susan Denham found Mr O’Brien’s rights to fair procedures, and constitutional justice had not been breached.

She said it became apparent Prof Andersen was available to give evidence, having previously declined to do so, some considerable time after the provisional findings of the tribunal had been circulated to interested parties.

The curtailment of time to Mr O’Brien’s lawyers to ask questions was clearly appropriate and took into account Mr O’Brien’s rights and the rights of others, she said.

The chief justice

found the High Court was correct that Prof Andersen had given evidence that in his (Andersen’s) opinion, the tribunal’s lawyers were biased and he had explained in detail what he had meant.

‘Irreparable harm’

Red Flag Consulting will suffer “irreparable harm” if it is ordered to disclose documents to Denis O’Brien revealing the identity of the client who commissioned it to prepare a dossier on the businessman, the High Court has been told.

Michael Collins, counsel for Red Flag, disputed claims on behalf of Mr O’Brien that, if the client is a competitor of Mr O’Brien’s and/ or involved in “bitter” litigation involving Mr O’Brien and/ or involved in the planned Digicel IPO, that was all highly relevant to the billionaire businessman’s claims of conspiracy and he was entitled to know the client’s identity.

The hearing continues today.


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