Desmond v Moriarty

• Jurisdiction: Ireland
• Judge: Mr Justice Quirke
• Judgment Date: 08 August 2003
• Neutral Citation: [2003] IEHC 172
• Court: High Court
• Docket Number: Rec. No. 315 J.R./2003
• Date: 08 August 2003

[2003] IEHC 172

THE HIGH COURT

Rec. No. 315 J.R./2003

DESMOND v. MORIARTY TRIBUNAL

BETWEEN

DERMOT DESMOND

APPLICANT

AND

MR. JUSTICE MICHAEL MORIARTY (SOLE MEMBER OF THE TRIBUNAL OF INQUIRY INTO PAYMENTS TO MESSRS CHARLES HAUGHEY AND MICHAEL LOWRY)

RESPONDENT

Citations:

TRIBUNALS OF INQUIRY (EVIDENCE) ACT 1921

TRIBUNAL OF INQUIRY (EVIDENCE) (AMDT) ACT 1979

COMPANIES ACT 1990 S14(1)

FINNEGAN V FLOOD 2002 3 IR 47

BAILEY V MIN FOR FLOOD UNREP SUPREME 14.4.2000 2000/2/491

R V MINISTRY OF DEFENCE EX PARTE SMITH 1996 QB 517

HAUGHEY V MORIARTY 1999 3 IR 1

Q (M) V GLEESON 1998 4 IR 85

KIELY V MIN SOCIAL WELFARE 1977 IR 267

HAUGHEY, RE 1971 IR 218

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

Synopsis:

TRIBUNALS

Tribunal of inquiry

Judicial review - Whether respondent admitted irrelevant damaging evidence - Whether evidence should be quashed - Whether respondent acted in breach of natural justice - Tribunal of inquiry into payments to Messrs Charles Haughey and Michael Lowry (2003/315JR - Quirke J - 8/8/2003)

Desmond v Sole Member of Moriarty Tribunal - [2004] 1 IR 334

This was an application for leave to seek relief by way of judicial review of certain decisions and rulings allegedly made by the respondent. The applicant claimed that the respondent admitted evidence which was both irrelevant to the Tribunal's work and damaging to the applicant's reputation and good name. The applicant contended that he ought to have been given prior notification of the evidence. The applicant sought inter alia to restrain the respondent from admitting such evidence in the future and to require the respondent to quash the evidence already adduced.

Held by Quirke J. in refusing the reliefs sought that the respondent had not acted in breach of the principles of natural justice or failed to provide the applicant with fair procedures.

1 JUDGMENT of The Honourable Mr Justice Quirke delivered the 8th day of August 2003 .

2 This matter first came before the court by way of an application for leave to seek relief by way of judicial review of certain decisions and rulings allegedly made by the respondent in his capacity as the Sole Member of the Tribunal of Inquiry (hereafter called the Tribunal) into payments to Messrs Charles Haughey and Michael Lowry and of certain procedures allegedly adopted or permitted by the respondent in that same capacity.

3 Having heard submissions from counsel on behalf of the applicant and having formed the opinion that this case fell within the category of exceptional cases where it is appropriate for the court to hear from a proposed respondent before deciding whether leave should be granted or refused, I adjourned the matter for a short period and directed that the respondent be notified and given an opportunity to be heard before a determination was made.

4 Subsequently the parties jointly requested that the court should hear the application for leave and the substantive issues raised in the application at the same time, that is to say on the basis that the substantive issues would be determined on the hypothesis of a successful application for leave. I acceded to that application in order to avoid potential duplication of proceedings and because it was sensible and convenient to do so.

RELEVANT FACTS

5 1. The Tribunal's terms of reference provide, inter alia,that the Oireachtas has resolved that it is "expedient that a Tribunal be established under the Tribunals of Inquiry (Evidence) Act 1921, as adapted by or under subsequent enactments and the Tribunal of Inquiry (Evidence) (Amendments) Act, 1979, to inquire urgently into and report to the Clerk of the Dáil and make such findings and recommendations as it sees fit in relation to the following definite matters of urgent public importance...

6 (e) Whether any substantial payments were made directly or indirectly to Mr. Michael Lowry ... during any period when he held public office in circumstances giving rise to a reasonable inference that the motive for making the payment was connected with any public office held by him or had the potential to influence the discharge of such office...

7 (g) Whether Mr. Lowry did any act or made any decision in the course of any Ministerial office held by him to confer any benefit on any person making a payment referred to in paragraph (e) or any person who was the source of any money referred to in paragraph (f) or on any person in return for such payments being made or procured or directed any other person to do such act or make such decision."

8 2. In the course of its work the Tribunal is presently investigating decisions made in 1995 and 1996 to award a second GSM telephone licence to a consortium (hereafter called ESAT Digifone) which comprised Telenor (the Norwegian State telephone company), ESAT Telecom Ltd (a company representing the interests of Mr. Denis O'Brien) and IIU Nominees Ltd (hereafter called IIU) a company beneficially owned by the applicant who is a well-known and successful business man.

9 3. A competition for a second GSM licence was announced on 2 ^nd March, 1995. Six applications were received and assessed by an evaluation team (hereafter called the evaluation team) established by the Department of Transport, Energy and Communications (hereafter called the Department). The evaluation team was headed by a senior official of the department Mr. Martin Brennan.

10 In the course of the evaluation process each applicant (of whom ESAT Digifone was one) was afforded the opportunity to make an oral presentation to the evaluators. During its oral presentation it was asserted on behalf of ESAT Digifone that it comprised a consortium in which Telenor and ESAT Telecom Ltd. each had a 40% interest with the remaining 20% interest divided equally between four financial institutions (hereafter called the financial institutions), Advent International, Investment Bank of Ireland, Standard Life Ireland and Allied Irish Banks Ltd.

11 The report of the evaluation team recommended that the second GSM licence should be awarded to ESAT Digifone subject to the negotiation of satisfactory licensing terms. The result of the competition and the identity of the winner was announced by the (then) Minister for Transport, Energy and Communications, Mr Lowry on 25 ^th October, 1995.

12 4. From the 8 ^th August, 1995 the applicant was involved in negotiations with a view to becoming a member of the Consortium. These negotiations were informally concluded on the 18 ^thSeptember, 1995. Subsequently the applicant formally became a member of the Consortium on the 29 ^th September, 1995 on terms that the interests of both Telenor and ESAT Telecom Ltd would each be reduced to 37.5% with the applicant becoming the owner of the remaining 25% interest in the Consortium.

13 5. Neither the evaluation team nor the Department were notified of the negotiations between 8 ^th August, 1995 and 29 ^thSeptember, 1995 which culminated in the reconfiguration of the share interests in ESAT Digifone and the acquisition by the applicant of a 25% interest in the consortium although a letter was sent to the Department on 29 ^th September, 1995 from IIU for the attention of Mr. Martin Brennan in the following terms:

"Dear Sirs,"

14 We refer to the recent oral presentation made by the Consortium to the Department in relation to their proposal for the second GSM cellular mobile telephone licence. During the course of the presentation there was a detailed discussion in relation to the desirability of equity finance to the Consortium from Communicorp and a number of institutions.

15 We confirm that we have arranged underwriting on behalf of the Consortium for all of the equity (i.e. circa 50%) not intended to be subscribed for by Telenor. In aggregate the Consortium now has available equity finance in excess of £58 million.

16 We do not foresee any additional need for equity, however, we are confident that if such equity is required we will not have difficulty in arranging it.

17 Yours faithfully,

18 Professor Michael Walsh.

19 Managing Director"

20 That letter was rejected and returned by the Department on the grounds that the evaluation team was not at liberty to receive any new information from applicants at that time.

21 It has been suggested on behalf of the applicant that this letter comprised notice to the evaluation team or to the Department of the applicant's acquisition of an interest in ESAT Digifone.

22 6. When the result of the competition was announced on 25 ^th October, 1995 the evaluation team and the Department believed that the beneficial ownership of ESAT Digifone remained vested in Telenor, ESAT Telecom Ltd (40% each) and the financial institutions (20%).

23 7. At the commencement of the particular stage or module of its enquiry which is relevant to these proceedings, counsel on behalf of the Tribunal, on the 12 ^th December, 2002, read an Opening Statement which include the following observations:

"The Tribunal will inquire, in the course of its public sittings, as to what were the true facts concerning ESAT Telecommunications Holdings Limited's financial position as at and prior to 16 ^th May, 1996. It will then be a question for the Tribunal as to the extent to which the Department was aware of those facts. If the Department were not aware of the true facts, the Tribunal will inquire as to whether this was due to any intervention on the part of or to influence exerted by Michael Lowry or, to the extent to which it is relevant, whether it was due to some other factors."

24 The Tribunal will also wish to enquire into the true facts surrounding the identity of the consortium, that is to say the identity of the applicants for the licence and the true facts surrounding the ownership proposals as required by paragraph three of the RFP. In this connection, the following questions will need to be examined...