A CASE in which businessman Dermot Desmond is accusing the Moriarty tribunal of having “wilfully or recklessly” withheld information during a High Court and Supreme Court challenge some years ago is set to be aired in court in the next few weeks.
The case, if it was won by Mr Desmond, would be another blow to the credibility of the tribunal.
Legal sources differed in their views yesterday as to whether it might be fatal for the long-running inquiry.
Mr Desmond’s legal team will apply for leave to seek a judicial review in the next few weeks, but the indications are that the tribunal will oppose Mr Desmond’s claims, according to sources.
In what is understood to be a very unusual case, Mr Desmond is claiming that the tribunal, chaired by Mr Justice Michael Moriarty, won the case by “fraud”.
He is seeking to have the rulings in the case “impeached”, and his costs returned to him.
He is claiming the affidavit sworn by the tribunal in the case was misleading and inaccurate.
In the 2003 case, Mr Desmond sought to prevent the tribunal from reading into public record findings of the Glackin inquiry into the sale of the former Johnson Mooney and O’Brien site at Ballsbridge, Dublin.
Earlier this year, Mr Desmond and others learned for the first time that there was a meeting between the tribunal legal team and officials of the attorney general’s office in 2002.
The meeting discussed legal advice given to the attorney general’s office in 1996, at a time when the State was about to issue a licence to Esat Digifone, a consortium in which Mr Desmond and businessman Denis O’Brien had shareholdings.
Mr Desmond’s 2003 legal challenge arose from the tribunal’s inquiries into the mobile phone licence.
Ironically, the attorney general at the time the licence was issued, Dermot Gleeson SC, acted as counsel for the tribunal in the case taken by Mr Desmond.
Information came to light earlier this year when the tribunal heard evidence from the two officials from the attorney general’s office.
Their evidence had the effect of prompting Mr Justice Moriarty, to withdraw some of his most serious provisional findings in relation to the licence.
The findings are related to whether the State issued the licence despite concerns about the legality of doing so.
It emerged that the two officials had met the tribunal in private in 2002. Interested parties before the tribunal only learned of the 2002 meeting when the tribunal memo of the meeting was circulated earlier this year.
The chairman’s provisional findings were issued in November 2008.
Mr Justice Moriarty has conceded that he made significant errors in relation to the licence issue, but has not explained how it was the case that he misinterpreted what he was told in relation to the views of the attorney general’s office.
The court hearing could see the chairman shed light on this matter.
A spokesman for Mr O’Brien confirmed yesterday that Mr O’Brien was seeking to have preliminary findings against him withdrawn and was also considering going to court in relation to the conduct of the tribunal, on a similar basis to Mr Desmond.
Part of his case will involve information that has since come to light concerning the tribunal’s dealings with economist Peter Bacon, who conducted private consultancy work for the tribunal in relation to its licence inquiry.