One group has threatened to sue over the second mobile phone licence and potentially huge financial exposure for the State lies behind yesterday's legalarguments, writes Colm Keena.
Counsel for financier Mr Dermot Desmond stated yesterday in the High Court that the current module of the Moriarty Tribunal is outside of its terms of reference or, in plain language, that the tribunal has strayed beyond its brief.
The tribunal's public inquiry into the awarding of a licence to Esat Digifone is costing the taxpayers tens of thousands of euro per day in legal fees. Five and sometimes more teams of barristers and solicitors are involved most days.Furthermore, the module could continue until the end of the year, and even into next year.
According to Mr Bill Shipsey SC, who appeared in the High Court yesterday on behalf of Mr Desmond, the tribunal is investigating the process whereby the State's second mobile phone licence was awarded to Esat Digifone, rather than whether Mr Michael Lowry did anything to compromise the process on foot of a corrupt payment.The tribunal's mode of operation is to examine in private matters about which it might have concerns. Then, if it believes a certain threshold of concern has been arrived at, it proceeds to hear evidence in public session.
As well as being a significant legal move, this is a significant public expenditure decision. Mr Desmond, in his affidavit, said that as the tribunal failed to find any evidence that the licence process was compromised, he had not expected it to move beyond its private, investigative phase.
He said that if it chose to go into public session he would have expected it to inquire into contacts between Mr Lowry and the members of the project team which assessed the bids for the licence and chose Esat Digifone as the winner."Instead, for 58 days of public sittings so far, with many more to come apparently, the tribunal has been pursuing what can only amount to an investigation of the process of the award of the licence itself."
This is a point which has been made to the tribunal by Mr Eoin Fitzsimons SC, for Telenor, one of the major shareholders in the Esat Digifone consortium.
He, and counsel for Mr Denis O'Brien, Mr Eoin McGonigal SC, have made this broad point before Mr Justice Moriarty. Furthermore, as Mr Fitzsimons has claimed before the tribunal, the detailed examination of the process whereby Esat Digifone won the licence could act as a trial run for the consortium which came second in the competition, Persona, in its case against the State.Persona has served notice of its intention to sue the State in relation to the competition.' If it should succeed, then the cost to the State will be huge.
A solicitor for the consortium attends the tribunal to listen to the hugely detailed evidence concerning how the sealed and secretive assessment process came to select Esat Digifone.
A case against the State could be based on matters other than any compromising of the process by Mr Lowry.
Mr Desmond, in his affidavit yesterday, said "days and days of evidence have been taken up, going relentlessly through qualitative and quantitative assessments and all sorts of technical matters pertaining to the licence award, that can have nothing to do with the tribunal's terms of reference."
When this portion of the affidavit was read out by Mr Shipsey, however, Mr Justice Quirke was quick to interject to ask if he was being asked to grant relief for an "attack on the entire tribunal".
Mr Shipsey said that he was not making any such request.
The judge also later observed that he would have difficulty with the concept of the High Court interfering with the operation and proceedings of a tribunal and the decisions in that regard made by the tribunal chairman. These remarks will be noted by Telenor and Mr O'Brien and their respective legal teams.
If either has any intention of walking from Dublin Castle across the Liffey to the Four Courts, to attempt to stop the tribunal, Mr Justice Quirke would seem to have signalled that a high hurdle will have to be crossed before any such hearing would be granted.The Moriarty tribunal looks set to run and run.