After years in Mahon’s shadow, nobody will miss the poor relation

THE curtain has at last come down on the Moriarty Tribunal. For 14 years, it has largely lived in the shadow of its livelier, more rambling but ultimately more loveable counterpart — the Mahon (formerly Flood) Tribunal.

In contrast, the Moriarty Tribunal was characterised by irregular, dull hearings that brought the definition of “boring” to new levels.

Hearings often appeared to be a demonstration by its legal team at how assiduous they had been at dotting every “i” and crossing every “t” as they brought witnesses through detailed correspondence. Direct questions to people giving testimony which allowed an answer beyond a simple “yes” or “no” were notable for their rarity.

The Moriarty Tribunal was also considered to be media-unfriendly through its refusal to publish in advance a list of forthcoming witnesses and the unavailability of transcripts for most of its duration, despite being charged with the task of conducting an inquiry into an issue of important public interest. It also didn’t help that chairman, Mr Justice Michael Moriarty, was given to making pronouncements couched in lengthy, verbose statements with multiple clauses and delivered in clipped tones.

The tribunal did little to endear itself to the public when it emerged that senior barristers working for the inquiry earned about €1m above the intended official pay rate over a six-year period as a result of an administrative error.

Compounding the issue, both senior counsel John Coughlan and Jerry Healy made no gesture to refund the overpayment when it emerged that they were being paid €2,500 per day in error, instead of the still generous daily rate of €2,250.

Both men maintained that they had accepted the offer of the higher rate in good faith.

Meanwhile, the Department of Finance backed down on any attempt to retrieve the excess payments amid fears either counsel might have resigned.

When asked by this reporter in February 2009 if he would consider refunding some of the money to the Exchequer, Coughlan retorted: “That is an unfair question.”

Healy also was the subject of oft repeated criticism by Lowry and Denis O’Brien over the fact that he had once acted for Persona, one of the losing bidders for the mobile phone licence won by O’Brien’s Esat consortium, although his work with Persona only arose after the conclusion of the licence process.

Moriarty has through its own conduct lent itself open to criticism which is likely to be exploited by both Lowry and O’Brien as a consequence of the adverse findings made against both men.

The chairman was forced to issue an apology in March 2010 for having made “two significant errors”. They related to the advice given by the Attorney General over the ability to award the licence to Esat, despite a change in its ownership structure through a shareholding taken up by financier Dermot Desmond.

The tribunal’s handling of this issue was ham-fisted and ultimately led to Mr Justice Moriarty having to withdraw provisional findings concerning both Desmond and civil servants that had been circulated to relevant parties.

The subject was potentially explosive as it could have placed a large portion of the blame on the awarding of the licence on the way the state (through its officials) had handled the matter.

It is also understood that the controversy led to tension between Coughlan and Healy that was assuaged to some extent by Coughlan’s stepping down from the inquiry as a result of ill health.

Mr Justice Moriarty faced another setback last May when the Government rebuffed his expressed wish that the tribunal’s final report be broken into two parts amid growing concern about the cost of the inquiry, This has cost over €40m to date and is likely to total in excess of €200m when all third-party costs are included.

Separately, a Danish consultant, Michael Andersen, who was centrally involved in designing the competition process, refused to travel to Dublin to give evidence for many years until 2010 because of what he perceived as bias by the tribunal’s legal team. Andersen believed such a hostile approach was a calculated effort to deter him from appearing as a witness who would support the contention that there was nothing untoward in the licence process and that Esat deserved to win the competition.

In compiling the reports, Mr Justice Moriarty also adopted contrasting styles with those adopted by Flood/Mahon as he decided to notify affected parties of his draft findings in order to allow them make further submissions before publishing his final report — a move that almost certainly added to the tribunal’s duration and cost.

Flood/Mahon has taken the more direct approach of issuing its own conclusions without allowing affected parties a last throw of the dice to alter their findings.

Nor should it be forgotten that it has largely been the work of journalists like Sam Smyth, Matt Cooper and Colm Keena, rather than the tribunal itself, that uncovered details of the clandestine payments made to Lowry by O’Brien and Ben Dunne.

Indeed, the tribunal has admitted that the bulk of its inquiry into Lowry under its terms of reference was largely completed by the summer of 1999 without any consideration of the whole mobile phone licence issue and Esat.

All in all, the Moriarty Tribunal will not be missed by a wide range of people for a variety of reasons. One presumes, not least by the inquiry’s own personnel themselves.