Tycoon Denis O’Brien wants declaration on ‘unfair’ tribunal procedures

Denis O’Brien believes a declaration that fair procedures were not applied during part of the Moriarty Tribunal into payments to politicians will affect the public view of the tribunal’s report, the Supreme Court has heard.

If he got such a declaration from the Supreme Court, he could also consider moving to quash certain parts of the report, his counsel, Paul O’Higgins, said, adding this would also have consequences for the issue of costs which has yet to be decided by the tribunal.

Mr O’Higgins was making arguments in Mr O’Brien’s appeal against a 2011 High Court decision dismissing his claim the tribunal had incorrectly restricted cross-examination of a key witness at its public hearings.

The tribunal opposed the appeal. It said the matter is now moot as the tribunal’s report has been published and it has not been challenged by Mr O’Brien.

The report includes findings adverse to Mr O’Brien about his relationship with former communications minister Michael Lowry.

In his appeal, Mr O’Brien claimed there was a breach of fair procedures by sole tribunal member Mr Justice Michael Moriarty to limit both the amount of time and the extent of the questions his lawyers could ask Danish telecommunications expert Michael Andersen.

Prof Andersen was a witness as part of the tribunal’s investigation into the awarding of Ireland’s second mobile phone licence to Esat Digifone in the mid 1990s.

Mr O’Brien claimed the professor’s evidence was critical to the outcome of the tribunal as he could testify on the probity of bids for the phone licence.

In 2011, the High Court’s Mr Justice John Hedigan dismissed that challenge.

Mr O’Brien brought an appeal heard by a five-judge Supreme Court yesterday and a decision was reserved.

Asked by Mr Justice William McKechnie if there could be further legal consequences if he got a declaration, Mr O’Higgins said he had not considered it at this stage.