O'Brien launches new Moriarty challenge

Businessman Denis O'Brien has commenced a challenge against limitations imposed by the Moriarty tribunal on his legal team's ability to question expert witness Professor Michael Andersen.

Mr O'Brien, with an address at St Sligma in Malta, claims that Mr Justice Michael Moriarty's decision last week to limit both the amount of time and the extent of the questions his lawyers could ask the Danish telecommunications expert was unfair and has violated his rights.

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. He gave his evidence to the tribunal over a number of days between October 26 and November 5.

Following the ruling, Mr O'Brien has brought proceedings aimed at having Prof Andersen recalled so that he can be fully cross-examined by his lawyers without any restraints being placed on them by the tribunal.

Today at the High Court Mr Justice Michael Peart granted leave to bring judicial review proceedings against the Mr Justice Moriarty the sole member of the Tribunal of Inquiry into payments to Mr Charles Haughey and Mr Michael Lowry TD was granted yesterday by Mr Justice Michael Peart.

The application was granted on an ex-parte (one side only) basis. The matter was made returnable before the courts later this month.

Mr O'Brien wants to quash the tribunal's decisions of November 2, prohibiting his legal team from cross examining Prof Andersen in relation to meetings which he had with had with the tribunals legal representatives, and from cross examining Prof Andersen on sections of his Statement of Intended Evidence to the tribunal.

He is seeking orders from the court that would allow his lawyers cross-examine Prof. Andersen on those matters.

The businessman is further seeking an order from the court quashing the tribunal's decision to limit his legal representatives from cross-examining Prof Andersen for a period of five hours.

He is also seeking declarations that all the limitations put on the cross examination of Prof. Andersen represented a failure by the tribunal to protect Mr O'Brien's rights to fair procedures, and amounted to a breach of legitimate expectation.

The court also heard that Mr O'Brien also intends to seek an injunction restraining the tribunal from publishing part two of his final report until such time as he is allowed to cross-examine Prof. Andersen in relation to the matters the subject of Mr Justice Moriarty's ruling.

Jim O'Callaghan SC for Mr O'Brien told the court that the decision "unjustly curtailed" his client's legal team ability to cross examine Prof Andersen. Counsel said that the tribunals own legal team got some 20 hours over several days to question Prof Andersen.

Counsel said that Mr O'Brien had no notice that Mr Justice Moriarty was going to make such a ruling. Objections were made against the ruling after it was delivered.

Counsel said that as a result of the Judge's decision his side were not able to cross-examine on what were crucial issues of critical importance.

Prof. Anderson was a lead consultant during the evaluation process during that competition, which took place in mid 1995. Six parties expressed an interest and the licence was awarded to Esat Digifone in May 1996, for whom Mr O'Brien was chairman at the time.

At the time Mr Michael Lowry TD was the Minister for Transport, Energy and Communications, who controlled the bidding process, and who put a recommendation to the Government for the final decision on the granting of that licence.