A document that may have "serious significance" for lines of inquiry already pursued in public evidence was produced by the tribunal yesterday after its importance was brought to its attention by a civil servant who was examining the files.
The document had been in the tribunal's possession for more than a year but its importance had not been noticed before.
Counsel for Mr Denis O'Brien, Mr Eoin McGonigal SC, sought an assurance from the tribunal that other documents in its possession and which had not been distributed to interested parties would be checked.
He said if the document had been noticed earlier, a lot of inquiry already pursued by the tribunal would not have been necessary. The chairman, Mr Justice Moriarty, said he did not agree with this.
Mr Eoghan Fitzsimons SC, for Telenor, a member of the Esat Digifone consortium, said he assumed the tribunal would withdraw "suggestions or contentions" that the 1995 competition for the State's second mobile phone licence had been accelerated following intervention by Mr Lowry.
Mr Justice Moriarty said the tribunal had made no suggestions or contentions. It was conducting an inquiry. He said the document would be taken fully into account when he was making his findings.
The document introduced yesterday was a letter from Mr Martin Brennan, the civil servant who chaired the team that assessed the bids for the mobile phone licence, to Mr Michael Andersen, a Danish consultant whose firm, Andersen Management International (AMI), was assisting the team working on the licence competition. It was dated September 14th, 1995.
The letter contained a time- scale agreed between the department and AMI following a dispute over the level of fees being demanded by AMI. The agreement envisaged AMI producing a first draft of a final report on the competition on October 3rd, 1995.
It outlined the time that would be taken by the team to review the draft report, the timing of a second draft, what would then happen, and the production of a final report by October 25th, 1995. The draft reports and the final report were produced on the dates set out in the letter.
Mr Brennan had a discussion with Mr Lowry some time between September 28th, 1995, and October 3rd, 1995, during which Mr Lowry was told the ranking of the top three bids at that time. Mr Lowry said he would like to see the process accelerated and Mr Brennan reported this comment back to the team.
A number of members of the team have been questioned about this comment from the minister. The suggestion has been explored that the process was "wrapped up" when Esat Digifone was ahead but when some members of the team still had questions about how the bids were ranked.
When it was put to Mr Brennan yesterday that the team was working under pressure in October, when reviewing the draft final reports, Mr Brennan said the pressure could have been coming from AMI, which may have wanted the process "wrapped up".
The content of the September 14th letter was then disclosed.
The letter revealed that AMI had signed a contract to work on the process for £297,450 but had subsequently looked for more money.
"You will be aware that several of the items which you consider to be additional to the project would in our view be reasonably considered to be intrinsic to the evaluation process to which your tender relates," Mr Brennan wrote. The new timetable was then outlined as was the new total agreed fee of £370,000.
When the content of the letter was revealed, Mr McGonigal asked for an explanation as to where it had come from. It seemed to be of "serious significance", he said.
He said it seemed to have direct impact on the position of Mr Lowry, who did not have legal representation at the tribunal yesterday. He said it was extraordinary that the document was coming to light "at this late stage". He said that it appeared that long before Mr Lowry ever intervened the date for the final report had been agreed. This was "totally contrary" to lines of inquiry that had been pursued.
Mr Brennan said he believed his colleague, Ms Maev Ní Lochlainn, had "stumbled" upon the letter but that it had been among the documents the tribunal had always had.
Mr Brennan agreed with Mr Jerry Healy SC, for the tribunal, that the "critical path" always envisaged for the assessment process fitted in with the dates in his letter to Mr Andersen. However, he said, he personally attached significance to the Andersen letter when he saw it. "
When I saw this letter I was surprised at it and I thought it was a fairly significant piece of paper." The letter set out a timescale which was followed "to the minute".
