The tribunal is to consider having a separate public inquiry into Mr Michael Lowry's dealings with Mr Denis O'Brien and Mr Lowry's role as telecoms regulator during his term as minister for transport, energy and communications.
The disclosure yesterday by Mr John Coughlan SC, for the tribunal, raises the possibility that the tribunal's inquiry into Mr Lowry's relationship with Mr O'Brien could stretch well into next year.
The tribunal has already spent a year conducting a private inquiry into the awarding of the State's second mobile phone licence to Esat Digifone before initiating the current phase of public sittings into the issue. These sittings, which began late last year and which could last until next Christmas, are costing in excess of €40,000 per day in legal fees.
The tribunal normally investigates matters in private before deciding if it should hold public hearings. The issue of Mr Lowry and decisions he may have made in relation to Mr O'Brien's company, Esat Telecom, was raised by Mr Eoghan Fitzsimons SC, counsel for Norwegian company Telenor, last week. Mr Fitzsimons, during his examination of former senior civil servant Mr John Loughrey, said the mobile phone licence competition had been a sealed process from which Mr Lowry was excluded, in contrast to Mr Lowry's role as telecoms regulator. He said it was his instructions that Mr Lowry had made decisions which affected Esat Telecom and without which Esat Telecom could have collapsed financially.
Yesterday Mr Rossa Fanning, for Mr Lowry, expressed his concern that the issue of Mr Lowry and Esat Telecom had been or could be introduced "by the back door" into the current module, which, as he understood it, was concerned with Mr Lowry and the awarding of a mobile phone licence to Esat Digifone.
Mr Lowry, as regulator, had an invidious role as he had to arbitrate between State-owned Telecom Éireann and private enterprise. The "schizophrenia" involved in this role had been "cured" by the establishment of an independent regulator. However, even then the decisions made had created public controversy and had led to litigation in the courts.
He said that a substantial margin of appreciation would have to be given for the complex discretionary decisions made by the then minister in his role as regulator. He said there had been no notification to his client of an investigation into this matter and no specific allegation had been made or suggested in relation to Mr Lowry's role.
He said the matter had generated "column inches" in the newspapers and he was seeking the chairman's view on the current status of the tribunal's thinking on the issue.
Mr John Coughlan SC, for the tribunal, said the issue was being looked at in the context of the tribunal investigative work and to ascertain if it should be taken further. He said the issue had arisen during the examination of Mr Loughrey last week by Mr Fitzsimons, and that it should now be dealt with in an ordered fashion.
Mr Justice Moriarty said he agreed with this view and pointed out that the tribunal was not precluded under its terms of reference from investigating the matter. Esat Telecom was a member of the Esat Digifone consortium. The other principal member was Telenor.
