COLM KEENA/BUSINESS OPINION:AT THE most recent sitting of the Moriarty tribunal, counsel for the businessman Denis O'Brien indicated his client believed the tribunal was going to produce a report that was damaging of him and critical of the way the competition for the State's second mobile phone (GSM) licence was run in 1995.

That competition was won by O'Brien's Esat Digifone, and the issuing of the licence to Esat in 1996 remains the single most valuable commercial award ever made by the State. If O'Brien's fears are justified, then Mr Justice Michael Moriarty is preparing to publish a report that will serve to blacken the reputation of Irish government and of Ireland as a place to do business. A finding that O'Brien gave money to the government minister who oversaw the competition, and that the competition itself was dodgy, would feature in business media around the globe.

Apart from the reputation of Ireland Inc, the reputations that would be the hardest hit would be O'Brien's and that of Michael Lowry. Lowry, the minister for transport, energy and communications at the time of the licence competition, is now a poll-topping independent for Tipperary North.

Earlier scandals and disgrace have not damaged him electorally in Tipperary, and his agreement after the last general election to support Taoiseach Bertie Ahern in return for an as yet undisclosed list of goodies for his constituents will probably prove more potent in Tipperary North than any disapproving words from the eminent judge.

O'Brien is 49 this year and no doubt there's a bit of road left in his business career. His major business interest is his Digicel operation in the Caribbean, but he is now a major commercial radio station owner here, and continues to build up his stake in Independent News & Media (IN&M), the dominant Irish newspaper group.

Gaining control of IN&M would make him a significant player in Irish commercial life, and a significant player in Irish society generally. It is not clear how a negative report would impact on his plans, though it could make him feel less inclined to invest in Ireland.

He has made it clear that he already feels hard done by. An issue that arose at the recent hearing of the tribunal concerned a note taken by a tribunal solicitor during a meeting between members of the tribunal legal team and the economist Dr Peter Bacon, in November 2004.

Bacon was in the process of beginning work on a report for the tribunal and O'Brien's interpretation of the note is that it supports the view that the tribunal's instructions to Bacon in effect urged him to produce a report negative of the GSM process.

The note consists of a number sentences associated with paragraphs of a letter sent to Bacon by the tribunal. One one-line note reads: "A choice - interpretation or conspiracy. How would we draw up judgment." The comment appears to be attributed to Bacon.

Another, also attributed to him, reads: "Asking us to make a judgment. Asking us to consider a direct criticism of the process. Asking us to criticise."

One aspect of the whole note scenario is that it wasn't produced by the tribunal when it should have been, back in 2005. It wasn't produced during a High Court case taken by O'Brien, a case in which the author of the note was solicitor for the tribunal side, O'Brien has claimed. Nor was it produced during the unsuccessful Supreme Court appeal O'Brien took after he lost the High Court hearing. The note was only produced on the Friday prior to the last sitting of the tribunal, and it is not the first time that O'Brien's side has complained of a document not being produced by the tribunal when it should have been. O'Brien's counsel said the manner of the note's production "suggests deliberate concealment of that document from the parties for almost four years by this tribunal, and in our view calls into question both the integrity and the credibility of this tribunal and the manner in which it has dealt with the GSM process . . . What is clear is that the tribunal appears to have a deliberate agenda to damn the competition process and those persons involved. We say that there is no other conclusion can fairly be drawn from the note."

The judge said a photocopying error led to the document being overlooked. Deliberate concealment would seem to require a number of the tribunal lawyers conspiring together.

They would also need to hide what they were up to from the judge, or include him in the conspiracy. It's not an impossibility, of course, but a photocopying error does seem easier to accept. The tribunal has to decide on two broad matters: Did O'Brien give financial assistance to Lowry?; and did Lowry make any acts or decisions that benefited O'Brien?

The tribunal's decision to investigate the GSM licence has probably cost something north of €50 million in legal fees, and was made after the tribunal had investigated a number of possible financial links between Lowry and O'Brien, including money transfers that began when Lowry was still in office. If the judge finds that O'Brien did not give financial assistance to Lowry - which is O'Brien's evidence to the tribunal - then the public would be well justified for scratching its collective head and wondering why all those tax euro were spent on the GSM inquiry. Though that doesn't mean it can't happen.

In a ruling in September 2005, Mr Justice Moriarty sketched out some of the GSM inquiry issues he was mulling over. The list includes the fact that Lowry seems to have breached the protocol against meeting bidders for the licence; may have had access to information that he should not have had; may have intervened in the deliberations of the evaluation team; and may have discussed the evaluators' assessment of the Digifone submission with O'Brien during a meeting in a pub one Sunday after a Croke Park fixture. One of the issues the judge said he will have to rule on is whether the pub discussion included discussion on Dermot Desmond becoming part of the Digifone consortium, a development which occurred over the 12 days after the meeting and which eventually led to Desmond making more than £100 million from his involvement.

If a damning report, or a half damning report is produced, then O'Brien is likely to reject it, and point to his oft-expressed views on the tribunal. But it will be a blow for a man who cares deeply about his reputation and public image.