Businessman fails in appeal that rulings of Moriarty Tribunal amounted to breach of fair procedures

About this case:

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The five-judge Supreme Court unanimously dismissed the appeal in which Denis O’Brien claimed breach of fair procedures by Mr Justice Michael Moriarty (the sole tribunal member) by limiting the scope of the questions and the amount of time for his lawyers to examine telecommunications expert, Professor Michael Andersen.

Background

Businessman Denis O’Brien was the chairman and major shareholder of Esat Digifone when it successfully submitted a bid for the second Irish GSM mobile phone licence in 1995.

The Tribunal of Inquiry into Payments to Messrs Charles Haughey and Michael Lowry (Sole Member Mr Justice Moriarty) was established by instrument of An Taoiseach in 1997 to inquire into payments made to certain politicians and related matters.

As part of the Tribunal’s remit it was required to inquire into the granting of the said licence and the antecedent process of bidding and selection which gave rise to it. During the course of this aspect of its work the Moriarty Tribunal issued certain procedural rulings which Mr O’Brien unsuccessfully challenged in judicial review proceedings.

In November 2010, Mr O’Brien brought a motion to the High Court seeking orders relating to the cross-examination of Professor Andersen before the Tribunal. No application had been made to prohibit the publication of the Tribunal’s report which was published in March 2011, nor were its terms subsequently challenged – therefore the only outstanding relief which could now be sought was a declaration that fair procedures were not adhered to.

Such a declaration would allow Mr O’Brien to consider moving to quash certain parts of the report, which in turn could have consequences for the issue of the tribunal’s costs.

Key witness

Professor Andersen was the founder of Andersen Management International, the consultancy firm retained by the Department of Transport, Energy and Communications in 1995 to assist civil servants in the evaluative selection process for the second GSM phone licence. Justice McKechnie, in his judgement at the Supreme Court, thought it was of interest to note that Professor Andersen’s own personal view of the integrity of the process was that Esat Digifone had won the licence on merit.

Mr O’Brien’s appeal proceedings arose out of three procedural rulings on the 2nd November 2010, made by Justice Moriarty concerning the cross-examination of Professor Andersen. Mr O’Brien alleged that the net effect of these rulings was to violate his natural and constitutional right to conduct an unrestricted exercise in such cross-examination.

On the 2nd November 2010, Justice Moriarty prohibited Mr O’Brien’s counsel from cross-examining Professor Andersen in relation to a) meetings and b) notes of meetings between members of the Tribunal’s legal team and the professor or his representatives. In addition, the time available to Mr O’Brien’s counsel for the cross-examination of Professor Andersen on all other matters was limited to five hours.

In this respect, Mr O’Brien sought an order of certiorari quashing the decisions as made, as well as an order of mandamus directing Justice Moriarty to permit the cross-examination of Professor Andersen in relation to the matters identified. Mr O’Brien further sought various other declaratory reliefs.

It was said that the evidence of Mr Andersen was critical to the final outcome of the Tribunal, in that he was anticipated to testify as to the probity of the bids and the bidding process for such licence.

It was Mr O’Brien’s intention to show through Professor Andersen’s evidence that there was no substance whatsoever to the allegations made against him, namely that he lacked integrity and that he was a party to a flawed contest and a corrupt competition process.

In the High Court, Justice Hedigan stated that the right to cross-examine may be curtailed by a Tribunal of Inquiry in certain circumstances (Maguire v. Ardagh 1 IR 385).

He observed that the case law in this area relates to the right of a person to cross-examine one’s accuser; here Mr O’Brien sought to cross-examine a witness who not only was not an accuser, but was a person who had in fact previously given evidence favourable to him. Thus the right asserted is one which could only arise in certain limited circumstances.

Justice Hedigan noted that no satisfactory answer had been given to the question of what Mr O’Brien hoped to gain by questioning the professor further.

In considering the appeal, Justice McKechnie stated that declaration that fair procedures were not adhered to, should not be permitted and the appeal in accordance with well-established principles should be declared moot.

In addition he noted that unlike the majority of the Supreme Court, he did not consider that the circumstances were in any way sufficient for the Court to exercise its discretion to consider the appeal on its merits.

Chief Justice Denham however was of the view that while none of the factors of O’Brien’s appeal would be sufficient to trigger the exercise of discretion to hear a moot appeal on their own; in the cumulative circumstances, the factors taken together, were such that she exercised discretion and considered the substantive appeal.

In considering the substantive issues, Chief Justice Denham stated that it was a central factor that the evidence of Professor Andersen was favourable to Mr O’Brien in his evidence.

Dismissing the appeal, Justice Denham was satisfied that in all the circumstances of this case the rulings of Justice Moriarty were not a breach of fair procedures, constitutional justice, or of any rights of Mr O’Brien.