Analysis:Clarifying a reference to 'ML' in a fax is at the centre of the inquiry, writes Colm Keena
Denis O'Brien snr was unable to help the tribunal yesterday in relation to negotiations that went on in August 2002 seemingly involving Michael Lowry's accountant, Denis O'Connor.
The negotiations involved a property agent from Northern Ireland, Kevin Phelan, who was in dispute with the O'Brien family about fees he said he was owed arising from his work on a project in Doncaster.
It is not clear what the dispute was about as there seems to have been no dispute between both sides as to the amount of money involved, £150,000, or Mr Phelan's entitlement to payment.
The Doncaster deal was done in August 1998 and the parties involved seem to have fallen out some time afterwards. This led to Mr Phelan being less involved than he had been hitherto.
Aidan Phelan, an accountant for Denis O'Brien jnr, and no relation to Kevin Phelan, seems to have taken on extra responsibilities in relation to the project. In August 1999 Kevin Phelan sent him a fax headed "Doncaster project". Item seven read: "ML Kevin Phelan to refer all queries regarding Doncaster to Aidan Phelan."
When, in 2002, William Fry solicitors, acting for the O'Brien family, were in contact with Kevin Phelan's solicitors, Woodcock and Sons, England, in relation to the fees dispute, a copy of this fax was sent to Fry by Woodcock along with other material. The documents were sent after Fry sought, as part of the settlement, a narrative statement from Kevin Phelan outlining his involvement in the Doncaster project.
By 2002 Aidan Phelan had dropped out of the picture and Denis O'Brien snr was handling the Doncaster dispute. The settlement of the dispute was now made dependent on Kevin Phelan providing an explanation for the "ML" reference.
Denis O'Brien snr said yesterday that he never asked Mr Lowry's accountant, Denis O'Connor, to become involved in the dispute with Kevin Phelan at this or any stage, and never knew of his being involved. The files from Fry seem to contradict this.
The files also indicate that Mr O'Connor was at the same time in contact with Kevin Phelan in relation to matters concerning Mr Lowry.
These contacts may have been in relation to fees Mr Phelan was claiming for work done for Mr Lowry on other property deals in England around the same time.
One record from the William Fry files, dated August 14th, 2002, is an e-mail from Owen O'Connell, a senior partner in Fry, to another partner in Fry, Owen O'Sullivan, concerning Mr O'Brien snr.
It states that Mr O'Brien snr called at 11.25am and had asked that Mr O'Connell be informed of the following. The note, it seems, was taken by Carol McNeilis, who works in Fry.
It reads in part: "With regard to Doncaster Rovers and the retraction from Kevin Phelan, DOB snr has arranged for Kevin Phelan's solicitors to call you next week with regard to making an appointment to meet with you and from there find acceptable wording regarding the retraction."
When shown the note yesterday Mr O'Brien said he never contacted Kevin Phelan or his solicitors and no one had ever done so on his behalf, other than William Fry solicitors. "I would never go outside my solicitors," he said. It could not be the case that he had said such a thing and had forgotten.
At about this time correspondence between the solicitors on both sides mentioned the issue of Kevin Phelan's files and non-disclosure to third parties.
A William Fry file note dated August 20th, 2002, by Owen O'Connell, reads in part: "Have been discussions with Denis O'Connor. KP will hand over his files to DOC." A note dated August 21st 2002 referred to a call from Mr O'Brien snr. It reads in part that a solicitor with Woodcock, David McCann, "had heard that we had asked for the files. McCann said that he would be unable to give us assurances if we were to hold the files and therefore Denis asked Denis O'Connor to withdraw his request. Denis O'Connor to confirm this."
The dispute was settled on that day or very soon thereafter with the payment of £150,000 to Kevin Phelan.
Mr Phelan for his part supplied a statement saying the reference to ML was a reference to Mr Lowry but in relation to Mansfield, not Doncaster.
Mr Lowry was involved in a property deal in Mansfield and the tribunal already knew about this in 2002.
No evidence has been heard to date as to Aidan Phelan being asked what he thought the "ML" reference in the fax was about. He is expected to give evidence during the current module, as is Denis O'Connor.
Kevin Phelan has not agreed to attend.