BACKGROUND:Disputed issues over the second mobile phone licence are at heart of tribunal deliberations, writes Colm Keena
AN INTERIM ruling on matters to do with the Moriarty tribunal's mobile phone licence inquiry was issued by the chairman of the tribunal, Mr Justice Michael Moriarty, on September 29th, 2005.
Very little by way of fresh evidence has been heard in the more than three years that have elapsed since that date and, therefore, Mr Justice Moriarty's final report will most likely reflect, at least in part, his 2005 interim ruling. The ruling did not contain any findings but did outline key matters on which the judge said he would have to arrive at conclusions.
In broad terms the two main questions for the judge are: did O'Brien give money to Lowry?; did Lowry do anything to help O'Brien win the mobile phone licence?
In theory Lowry had next to nothing to do with the licence competition process, which was handled by a project team. A closed process was established but difficulties developed as it progressed and in the event the selection of the winner involved use of an altered assessment model and, it seems, key decisions being made by a minority of the membership of the project team. Furthermore, contrary to protocol, Lowry had contact with both bidders for the licence, and members of the project team.
Mr Justice Moriarty's interim ruling details how "in or about the 28th/29th September" decisions were taken concerning the assessment of the bids during a meeting in Copenhagen attended by Danish consultants and just two of the civil servants on the departmental project team. A "tentative scoring or ranking" of the bids was proposed and it appears "that prior to the communication of this tentative first draft result to the project team, the ranking had been communicated to the Minister". Lowry may have directed that the assessment process be accelerated at this stage, the judge noted, citing certain evidence. In his evidence, O'Brien has argued forcefully that internal departmental documentation shows the process was completed as per a pre-arranged schedule.
The most serious allegation mentioned in the judge's interim ruling is that Lowry could have discussed with O'Brien the idea of Dermot Desmond becoming involved in the Esat Digifone consortium. O'Brien and Lowry met in Hartigan's pub on Leeson Street, Dublin, in the wake of the All Ireland final on September 17th, 1995. That the two men met in the pub when the licence bids were still being assessed is not disputed though both men insist they did not discuss the licence competition. O'Brien's diary records that he also met Desmond that day.
The Digifone consortium that bid for the licence was owned equally by O'Brien and a Norwegian telecoms group Telenor. Within the consortium and within the departmental project team, there were concerns about O'Brien's ability to fund his share of the costs of setting up a new mobile phone service.
An executive with Telenor, Per Simonsen, told the tribunal he was told by O'Brien in late September 1995 that O'Brien had met Lowry in a pub and that the minister had suggested that IIU should be involved in the Digifone consortium.
O'Brien told the tribunal he never discussed the matter with Lowry and that he first discussed Digifone with Desmond, in August 1995, in Desmond's private jet on the way home from a Glasgow Celtic match.
On the day after the pub meeting O'Brien met his solicitor, Owen O'Connell, in the offices of William Fry solicitors. A memo by O'Connell of the meeting reads in part: "Dermot Desmond going ahead with transaction. Need underwriting letter for department because finances are seen as the weakness. Dermot Desmond wants 30 per cent of GSM."
In the event Desmond and O'Brien came to an agreement whereby Desmond would underwrite O'Brien's element of the Digifone deal, and Desmond would get a 25 per cent shareholding in Digifone. A letter to this effect was sent to the department on September 29th, 1995, but the civil servant who received it sent it back - to O'Brien - because the date for submissions had passed.
Digifone came out top of the ranking worked out at the Copenhagen meeting, and won the right to negotiate for the highly lucrative licence, without Desmond.
On the issue of whether O'Brien might have made payments to Lowry, the judge in his interim ruling referred to a particular scenario that he might have to consider because of a comment attributed to O'Brien back in 1997. The issue is detailed but essentially O'Brien was recorded during an internal Esat inquiry in 1997 as saying he had earmarked a payment for Lowry in 1996 but that it had "got stuck" with an intermediary.
In fact O'Brien had transferred £150,000 from his Dublin accounts to the Isle of Man in the wake of Digifone getting the licence. From there the money went to a Jersey account opened to receive it in the name of a businessman friend of O'Brien's, the late David Austin, and from there to an account Lowry opened in the Isle of Man so as to receive the money. This occurred during the summer and autumn of 1996, when Lowry was still a minister. Some time later Lowry resigned in disgrace because of payments he had received from Ben Dunne. On the day the McCracken tribunal was established, the £150,000 was returned to Austin.
The Moriarty tribunal has investigated these matters as well as subsequent property transactions in Cheadle and Mansfield which involved Lowry and O'Brien's former accountant, Aidan Phelan, but which O'Brien has said had nothing to do with him. Mr Justice Moriarty in his interim ruling said he will have to decide if the property transactions might have been a substitute for a payment that got "stuck" or could have been "part of a train of transactions related to the conferral of a benefit on Mr Michael Lowry".
Both O'Brien and Lowry have said O'Brien did not give money to Lowry. They have also said that a Doncaster deal involving O'Brien had nothing to do with Lowry. On the money sent to Austin, O'Brien has said this was payment for a house in Spain he bought from Austin, while Lowry has said he loaned the money from Austin, but then decided to return it.
