THE MORIARTY tribunal has made adverse provisional findings against the State in its long-running mobile phone licence inquiry, a sitting of the tribunal in Dublin Castle heard yesterday.
It was decided to waive legal professional privilege over advice given to the then department of transport, energy and communications in April 1996 by Richard Nesbitt SC. The department had upheld the document’s privilege since the tribunal began its inquiry in 2001.
In a letter to the tribunal from the Chief State Solicitor’s office, read out yesterday, the tribunal was told the decision to waive the privilege was made as a response to the tribunal’s “adverse provisional findings against my clients”.
In December 2008, the tribunal threatened to injunct The Irish Times if it disclosed the tribunal’s provisional findings over the issuing of the licence to Esat Digiphone, which was one of the most valuable licences ever issued by the State.
The tribunal heard that the Cabinet considered the matter of waiving privilege on the legal advice on March 10th of this year, following the issuing of the tribunal’s provisional findings last November.
The tribunal is investigating possible financial links between businessman Denis O’Brien and the former minister for transport, energy and communications, Michael Lowry. Mr O’Brien founded Esat Digifone, which was given a mobile phone licence in May 1996. The tribunal began an inquiry into the licence award in 2001. The nature of the adverse provisional findings against the department of transport, energy and communications were not disclosed yesterday but are linked to the decision to grant the licence to Esat even though its shareholders were different at the time from the shareholders outlined in Esat’s bid for the licence.
By the time the licence was to be awarded, Dermot Desmond’s IIU Nominees Ltd had replaced institutional shareholders mentioned in the Esat bid. The tribunal heard that civil servant Fintan Towey sought advice from Mr Nesbitt on this matter. The tribunal has decided Mr Nesbitt’s advice does not address the issue, though the department has a “radically different” view.
Counsel for the Department of Communications John O’Donnell SC, argued that Mr Nesbitt should be called to give evidence. Mr Nesbitt is also acting as counsel for the department. However, Mr Justice Michael Moriarty said he did not wish to call a barrister to give evidence about written advice he had furnished. He said he would do so if he felt justice required it.
Mr O’Donnell argued forcefully that Mr Nesbitt should be called, and was supported by counsel for Mr O’Brien, Mr Lowry and Mr Desmond. Mr O’Donnell said a refusal to call Mr Nesbitt would be a “stance by the tribunal to frustrate” his clients in defending their good name.
Mr Towey, in evidence to Jacqueline O’Brien SC, for the tribunal, said there had been meetings with Mr Nesbitt at the time. He couldn’t recall them but Mr Nesbitt had in recent times told him he could recall discussing the issue with him.
He said he could recall Mr Brennan saying Mr Nesbitt’s advice meant they had no legal concerns about issuing the licence. Mr Towey resumes his evidence today.
