A High Court judge will hear arguments from the Moriary tribunal tomorrow before deciding how to deal with applicaitons by businessmen Denis O'Brien and Dermot Desmond for leave to challenge the tribunal chairman's decision to instruct former Minister for Justice, Michael McDowell SC, to examine a key witness - Danish consultant Michael Andersen - before the tribunal.
Mr Justice John Hedigan told lawyers for both businessmen today they should serve short notice of their separate applications for leave for judicial review on the tribunal and he would hear from the tribunal tomorrow.
The judge will also decide tomorrow how to deal with applications by both men for an injunction restraining Mr McDowell from further examining telecomunications consultant Michael Andersen about issues related to the award of the State's second mobile phone licence to Esat Digifone in 1995 following an evaluation process overseen by Mr Andersen.
Jim O'Callaghan SC, for Mr O'Brien, and Bill Shipsey SC, for Mr Desmond, argued today Mr McDowell should not have been retained to examine Mr Andersen on grounds of alleged objective bias on the part of the barrister.
Mr O'Callaghan argued a reasonable person would conclude, from questions put by Mr McDowell to the Dail concerning the mobile licence award while he was a Progressive Democrat TD; from various decisions made by him while Attorney General between 1999 and 2002 and on several other grounds, that Mr McDowell was objectively biased against Mr O'Brien.
Mr Shipsey also argued it was difficult to see how any barrister could have been more conflicted than Mr McDowell. Counsel said Mr McDowell, for example, was a member of the Cabinet which had decided against giving an indemnity to Mr Andersen in relation to his evidence before the tribunal and the reasons for that refusal were not known.
Both counsel also said they had been taken by surprise by the decision to retain Mr McDowell. While rumours had circulated concerning Mr McDowell, it was only when he walked into the tribunal room yesterday that they were formally aware he had bene retained, they said.
Mr Justice John Hedigan said 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 granting leave.
He considered this was such a case and he would allow both applicants liberty to serve short notice of their applications, including for an injunction, on the tribunal and would return the matter to 11am tomorrow. The judge added he was conscious of the need for expedition in the matter and perhaps the leave application could be subsumed into a full judicial review hearing.
The judge also heard today the tribunal chairman, Mr Justice Michael Moriarty, had said Mr McDowell's role would be confimed to examining Mr Andersen, who is expected to be in the witness box for two weeks.
