COURT HEARING:A HIGH Court judge will hear arguments on behalf of the Moriarty tribunal today before deciding how to deal with separate challenges by Denis O'Brien and Dermot Desmond to the decision to engage former minister for justice Michael McDowell SC as tribunal counsel to examine a key witness.
Both men allege “objective bias” – appearance of bias – against them on the part of Mr McDowell, arising from his involvement in public affairs over the last 15 years. They claim consequent objective bias against them by the tribunal due to its chairman’s decision to engage Mr McDowell.
Objective bias is alleged on several grounds, including questions by Mr McDowell and other Progressive Democrats members of the Oireachtas concerning the 1995 award of the State’s second mobile phone licence to a consortium in which Mr O’Brien and Mr Desmond were involved.
While the tribunal chairman, Mr Justice Michael Moriarty, said Mr McDowell’s role would be confined to examining Danish consultant Michael Andersen and he was not part of the tribunal’s “deliberative process”, counsel for both men said this was insufficient to address their concerns.
Mr Justice John Hedigan told counsel yesterday the threshold for obtaining leave for judicial review requires an applicant to show they have an arguable case but there were sometimes circumstances when it was appropriate to hear from the other side before deciding whether to grant leave.
He considered this was such a case, directed both applicants to serve short notice of their applications on the tribunal and returned the matter to 11am today.
Mr McDowell has been engaged to examine Mr Andersen about issues related to the award of the second mobile phone licence to Esat Digifone in 1995 following an evaluation process overseen by Mr Andersen. Mr O’Brien and Mr Desmond are both former shareholders in the Esat Digifone consortium.
Jim O’Callaghan SC, for Mr O’Brien, and Bill Shipsey SC, for Mr Desmond, argued Mr McDowell should not have been retained to examine Mr Andersen on grounds of objective bias.
Mr O’Callaghan argued there were 10 grounds why a reasonable person would conclude Mr McDowell was objectively biased against Mr O’Brien.
These included questions put by Mr McDowell and other members of the Progressive Democrats to the Dáil concerning the mobile licence award while he was a PD TD, counsel said.
When Mr Justice Hedigan remarked that Mr McDowell’s Dáil question about the licence appeared to be a request for information, Mr O’Callaghan said the questions from the PD representatives indicated opposition to the licence award.
Counsel also alleged objective bias by Mr McDowell arising from his raising issues in the Dáil in 1996 about the resignation of Michael Lowry, who was minister for telecommunications when the licence was awarded.
Mr McDowell was a political adversary of Mr Lowry and if Mr Lowry’s evidence to the tribunal was rejected that would have an impact on Mr O’Brien, he argued.
Other grounds related to the State’s maintenance for several years of a claim of privilege over advice received from senior counsel Richard Nesbitt concerning the role of Mr Desmond’s IIU company in the Esat consortium, the court was told.
Mr O’Callaghan said this was relevant because Mr McDowell was attorney general for some of the relevant period.
Bill Shipsey for Mr Desmond, said he endorsed Mr O’Callaghan’s arguments.
Mr Desmond was also concerned, if Mr McDowell had no conflicts of interest, why had the tribunal chairman specifically stated his role would be limited to examining Mr Andersen?
It was difficult to see why Mr McDowell had been chosen from about 2,000 barristers when there was a “plethora of conflicts” affecting him and when Mr Andersen had raised concerns about tribunal lawyers being biased against him, counsel
added.
