The chairman, Mr Justice Michael Moriarty, has defended the tribunal's inquiry into the awarding of the State's second mobile phone licence after it came under attack from barristers for three interested parties during a heated and protracted row.
During the unprecedented dispute, the chairman revealed he had received direct communications from Mr Dermot Desmond, criticising the way in which the tribunal's inquiry is being conducted.
The row, which lasted for more than 10 minutes, erupted after counsel for Telenor, Mr Eoghan Fitzsimons SC, said the tribunal's inquiry into the licence competition was an attack on aspects of the licence award process rather than an inquiry into whether the former minister, Mr Michael Lowry, had done anything to interfere with the process.
He asked the witness, the former secretary general of the Department of Transport, Energy and Communications, if he was aware that the consortium which had come second in the licence competition, Persona, was suing the State. Mr John Loughrey said he was so aware.
Mr Fitzsimons said that when the case reached the High Court it would cover a great deal of the ground which has already been covered during the tribunal's hearings into the licence award. He said the "same case will be put as was put here" by the tribunal counsel, Mr Jerry Healy SC and Mr John Coughlan SC.
Mr Coughlan interrupted and said the tribunal was making no case. The chairman said the comment from Mr Fitzsimons was "most regrettable" coming from someone of his seniority. Mr Fitzsimons said that he had no doubt but that the tribunal counsel believed they were doing their best to inquire into the licence process but regrettably "objectively what we have witnessed here" was an attack on aspects of the licence process itself.
He said an instance had been seen earlier when Mr Coughlan had made a case using "pejorative questioning" to attack the process. Mr Healy, he said, had earlier raised his voice against the civil servant, Mr Martin Brennan, telling him he was wrong in what he had done from time to time in relation to the process.
He said he believed no other construction could be put on it but that the tribunal counsel believed there were defects in the licence process. He had no doubt but that they believed they were conducting an inquiry but the fact was that they were putting questions involving allegations which would form part of the case which Persona will make.
"We have sat through what has happened here, watched it, experienced it," he said. "Civil servants have been attacked."
Mr Eoin McGonigal SC, for Mr Denis O'Brien, said he fully supported what Mr Fitzsimons had said and believed it was right and proper and it was time it was said.
Mr Justice Moriarty said he was not going to make "intemperate observations, much that I am tempted to do so." He said that a detailed and painstaking examination of the licence award was required given the task which had been assigned to the tribunal by the Oireachtas. It had proved necessary to examine the process and the involvement of Mr Lowry in great detail. He said he was satisfied that the format he had decided upon was the appropriate one.
He said he considered the remark by an eminent counsel to the effect that the tribunal inquiry was a "forerunner" of the case to be taken by Persona as "regrettable, unfounded and utterly incorrect". He said he considered the "concerted applications" being made by counsel to be unhelpful.
Mr Bill Shipsey SC, for Mr Dermot Desmond, said he objected to the use of the phrase "concerted" by the chairman and said he had not been aware in advance of the comments which Mr Fitzsimons had made. He said he agreed with Mr Fitzsimons's comments and said Mr Desmond had expressed similar concerns.
Looking visibly annoyed, Mr Justice Moriarty said that Mr Desmond had "on many instances" directed those views to him personally and asked Mr Shipsey to confirm this, which he did.
Mr Fitzsimons said the word concerted had been used twice by the chairman and that it was a "most unfair and personal comment to make". He asked the chairman to withdraw it.
Mr Justice Moriarty said if Mr Fitzsimons said there had been no consultation with the other barristers prior to his remarks, then he accepted that. He said if he had said anything which reflected badly on the integrity of the able counsel for all sides, he would never wish for that to be the case.
