Desmond criticises Moriarty tribunal

The businessman Dermot Desmond has criticised the operation of the Moriarty tribunal.

In an open letter to the chairman of the tribunal, Mr Justice Michael Moriarty, regarding its investigation over the last four years into the awarding of the second mobile phone licence, Mr Desmond said that he had lost confidence in him.

Mr Desmond said the tribunal had been responsible for a massive waste of costs and man hours and that it had failed to adopt basic fair procedures.

He maintained that in the absence of evidence of interference, the tribunal was relying on hearsay, pub talk and pillow talk.

Dermot Desmond's letter: to Mr Justice Michael Moriarty

Ruling of Mr Justice Michael Moriarty dated September 29th on Michael Andersen.

Dear Mr Justice Moriarty,

It is with regret, frustration and exasperation that I write this open letter to you. I am not doing this to protect my reputation but to highlight how much time and money has been utterly wasted by your tribunal.

When I gave evidence before you I stated that the tribunal had lost the plot. My real concerns are that the Moriarty tribunal has:

been responsible for a massive waste of costs and man hours

failed to adopt basic fair procedures

damaged reputations including those of civil servants

relied too much on hearsay and rumours

put itself in positions of conflict

veered way off course without any justification

not issued any report after eight years

You came to this tribunal with a reputation for fairness and efficiency, but I have since lost confidence in you. Over four years ago, you began your enquiry into the award of the second mobile phone telephone licence to see if it could have been interfered with by Michael Lowry.

This licence was ultimately awarded to Esat Digifone, a consortium with which I was involved. Four years later, you are not any further on in your investigations, there is nothing new. It is an expensive way to go full circle.

In the absence of evidence of interference, you are still relying too much on hearsay, pub talk, pillow talk, maybe Persona talk. Your 37-page Ruling does not seem to have come up with one sustainable allegation, and merely regurgitates previous baseless allegations.

Phenomenal costs have been incurred directly in the legal fees paid to the tribunal counsel.

The costs payable to your legal team are only the tip of the iceberg when you take into account the massive legal costs payable to all of the interested parties. The sheer waste of management time being diverted into dealing with tribunal correspondence and proceedings simply cannot be quantified.

Lack of fair procedures has contributed enormously to the delays and costs incurred by the tribunal. The tribunal seems to have adopted a pattern of producing evidence which tends to side with its allegations, while at the same time failing to fully disclose the other side of the argument. It has repeatedly and selectively withheld relevant documents from interested parties. Taking but one example, my legal team has had to write to the tribunal no less than nine times seeking a copy of a document which has direct relevance to me.

The tribunal has now finally conceded that the document will be made available but I am still waiting. Do you have any idea of the legal costs and time wasted in writing that number of letters and in dealing with an equal number of replies from the tribunal legal team? Will my legal team have to write a tenth letter? Do you accept that I was not made aware of this information when I gave evidence before you?

It is disingenuous to try to attribute the inordinate delay of the tribunal to the legal actions taken by interested parties. It is the very behaviour of the tribunal, such as the withholding of documents, which leads to litigation. The tribunal took a seventeen month break from public hearings to consider the implications of the O'Callaghan v Mahon tribunal judgment, when the Mahon tribunal itself was able to operate during this time.

The tribunal failed to disclose until recently that it had to retain the economist Peter Bacon apparently as far back as 2002, to give his views on the licence process. None of the witnesses who co-operated and gave public evidence throughout 2003 and 2004 had any idea that tribunal counsel when examining them were in possession of an "expert" report, even though it now seems to have been clearly influential in the line of questioning adopted by the tribunal. The competence or otherwise of Peter Bacon is irrelevant. The Government retained Michael Andersen as a consultant to the original licence process, not Peter Bacon. The tribunal seems to be choosing to attribute undue significance to the untested third party opinion of a person who was completely outside of the process, in lieu of the evidence and the facts.

Your Terms of Reference are very simple - to see whether there was any wrongdoing by Charles Haughey or Michael Lowry when minister. The Dáil did not authorise you to conduct an audit of the competition process. Anyone who is allowed with the benefit of hindsight to take three or four years to parse and analyse an evaluation process which itself took three months, will find ways in which the evaluation report could have been more polished. This completely misses the point. It does not matter whether the competition process was good or bad, what matters is whether political pressure was applied.

No evidence has emerged which even remotely suggests that the licence award was compromised by Michael Lowry or indeed anyone else - in fact the opposite is the case. Surely if there was any truth in the rumours put about in relation to the licence, it would need a massive conspiracy of all of these witnesses to silence it - this very proposition shows how ludicrous the whole situation is. In the absence of evidence the tribunal is forced to attach undue significance to rumours put about by vested interests. This is unacceptable and wrong. Who is responsible for these rumours, what have they to gain by leaving them out there?

The tribunal has lost all respect, not just among the general public and business community, but amongst its own legal profession. The tribunal owes it to all interested parties, especially the civil servants who do not have the resources or freedom to challenge the tribunal, to uphold the truth and to vindicate the licence process. The truth has to prevail over innuendo. How long do we have to wait until fair play and efficiency prevails?

Yours sincerely,

Dermot F Desmond