CHANGE OF OWNERSHIP ISSUE:THE STATE had legal advice available to it in May 1996, prior to the awarding of the second mobile phone licence, in regard to the change of ownership issue in Esat Digifone, the final report of the Moriarty Tribunal has found.
This change of ownership, in the days after the competition for the licence closed, revolved around Dermot Desmond’s late introduction to the company, gaining a 25 per cent shareholding.
The tribunal, in its report published yesterday, admits it mistakenly believed, following correspondence with the attorney general’s office in 2002, that no advice on the impact of the change of ownership issue had been furnished to it in advance of the awarding of the licence.
However it now accepts its understanding of the letter from the attorney general’s office was erroneous and it says this error should not have been made.
Advice was obtained by the attorney general’s office from Richard Nesbitt SC.
The report says that it was on November 18th 2008, when the tribunal notified certain provisional findings to the department that the claim of privilege over the opinion given by Mr Nesbitt in May 1996, and a claim of privilege asserted since 2002, was waived and this was followed by a request, acceded to by the tribunal, that further evidence should be heard.
It was in the course of furnishing statements of intended evidence on the part of departmental witnesses, and of Mr Nesbitt, that it says it was intimated for the first time that, in addition to reliance on written opinion from Mr Nesbitt, that Mr Nesbitt had also verbally advised that the substitution of Mr Desmond as a shareholder was not viewed by him as material or problematic.
The tribunal had been led to believe, and had satisfied itself, from earlier extensive private inquiries, that no such oral advice had been given. Furthermore the report acknowledges the tribunal should have produced its note of a meeting in October 2002 in advance of it taking evidence from Mr Nesbitt.
“That this was not done is a matter of regret to the tribunal, as, in the course of Mr Nesbitt’s attendance as a witness, his evidence was challenged on the basis that he had never previously brought to the tribunal’s attention his view that his opinion of 9th May 1996, covered the ownership alteration issue . . . this contention should not have been put to Mr Nesbitt. Whilst it was an error for which the tribunal must accept responsibility, it is nonetheless of note that, whilst the tribunal did not recall the meeting at the time Mr Nesbitt gave evidence, almost seven years later, neither did Mr Nesbitt himself, perhaps unsurprisingly, then recall it,” the report says.
“Whilst acknowledged and regretted, what transpired was neither less nor more than genuine human error. Any suggestion that the tribunal deliberately sought to misinterpret the Attorney General’s letter, or deliberately to conceal the meeting of 18th October, 2002, is both absurd and without foundation,” it adds.
Overall however the tribunal felt that the approach adopted by the Department in taking verbal legal advice in the days before the awarding of the licence “hardly reflected a close, careful and open-minded consideration of a significant issue on which the licensing of Esat Digifone was dependent. Rather, as also evident in the Departmental approach to the financial questions, it betokened . . . a process that had to be followed and completed, but with little expectation that it would conclude otherwise than in the licensing of Esat Digifone”.