O’Brien loses legal bid to halt tribunal evidence
Mr O’Brien claimed a report by Mr Bacon about the evaluation process - which led to the award of the licence to Esat - did not constitute evidence and was inadmissible.
Mr Justice John Quirke said he could see no reason why the tribunal should not be entitled to call professional witnesses to testify at public sittings and such witnesses should be available for cross examination.
The court heard last month that the March 2003 report by Mr Bacon confirmed a “tentative view”, which the tribunal then held, that a report by Mr Michael Andersen, a management consultant with the Danish consultancy firm AMI, whose firm was retained by the government to provide expert assistance in the mobile phone licence competition, “may contain a number of seriously fundamental flaws.”
The report formed the basis for the ultimate decision to award the licence to Esat in October 1995.
The court heard that the tribunal stated in correspondence in June 2005 that it believed there was “no realistic prospect” of compelling Mr Andersen to give evidence either here or in Denmark. In July 2005, the tribunal told Mr O’Brien it did not believe Mr Andersen’s unavailability would preclude the tribunal from proceeding with its inquiry.
The court was told Mr Andersen has declined to give evidence to the inquiry unless he is given an indemnity by the government against any claims that might arise from his evidence.
No such indemity has been offered to date.
Mr O’Brien also sought a court declaration that a delay of 18 months in completing the evidence given to the tribunal by Mr Tony Boyle of Persona, an Irish consortium which was runner up in the mobile licence competition, constituted a breach of Mr O’Brien’s right to cross-examine.
Mr Justice Quirke said that the delay in cross examination was reasonable and that he was satisfied that Mr O’ Brien’s rights have not been affected.
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