Supreme Court reserves decision on Desmond challenge to tribunal

Businessman Dermot Desmond has claimed a mistaken view taken by the Moriarty tribunal based on misleading information provided to it by its own solicitor became the basis on which he was investigated by the tribunal.

Mr Desmond wants the Supreme Court to overturn a High Court finding that previous court decisions were not made by reason of fraud based on the misleading information.

The three-judge court on Monday reserved its decision. In 2012, the High Court rejected Mr Desmond’s application for declarations that the High Court, in 2003, and the Supreme Court, in a 2004 appeal, had been misled as a result of a fraud by the tribunal, its servants or agents.

The tribunal was set up to to inquire into, among other things, the awarding of the second GSM mobile phone licence to the Esat consortium. Mr Desmond’s company, International Investment and Underwriting Ltd (IIU), replaced four financial institutions as Esat backers after the application process began.

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Out of this competition process, Esat was chosen to have the exclusive right to negotiate the terms for the licence in October 1995 with the Department of Transport, Energy and Communications.

Licence awarded

In May 1996, the licence was awarded to Esat. After the Moriarty tribunal was set up, it asked, as part of its inquiry, about legal advice the department received about the replacement of IIU for the financial institutions in the competition.

That advice, provided by senior counsel Richard Nesbitt, was that the replacement should not affect the decision to grant the licence to Esat unless the change in ownership would in some way compromise the service to be provided by that consortium.

The tribunal took the view that the senior counsel’s opinion only addressed the question of changes in the consortium after the licence had been granted and not the period between when Esat got exclusive negotiating rights and when it got the licence, which was when IIU came on board.

As a result, the tribunal began investigating Mr Desmond and in particular heard evidence concerning the 1993 Glackin report into the ownership of the Johnston Mooney and O'Brien site in Ballsbridge, Dublin, which was critical of Mr Desmond.

Mr Desmond then brought judicial review proceedings claiming the tribunal had not afforded him fair procedures because the contents of the Glackin report were not relevant. He was given inadequate notice about the likelihood of witnesses being examined about the Glackin report and this meant his ability to defend himself was compromised, it was also argued.

The High Court and Supreme Court both dismissed those proceedings. In 2009, five years later, a copy of Mr Nesbitt’s legal opinion was provided to Mr Desmond.

Errors

A year later, Mr Justice Michael Moriarty, chairman of the tribunal, acknowledged two "not insignificant" errors had been made in its inquiries in 2002/3. The first was the tribunal had been "mistaken in asserting that the attorney general had in 2002 expressed the view that the Nesbitt opinion did not deal with the pre-award changes in the composition of the Esat consortium".

The second was the tribunal erred in not making available to the parties its note of the tribunal's meeting with Mr Nesbitt and two relevant officials from the office of the attorney general. Mr Desmond then brought new High Court proceedings seeking a declaration that John Davis, solicitor for the tribunal, had sworn an affidavit in 2003 which was misleading, untrue and inaccurate. Mr Desmond claimed, as a result, the High and Supreme Court judgments in Mr Desmond's previous "Glackin report" proceedings should be set aside by reason of fraud on the part of the tribunal.

Fraud

In 2012, then-High Court judge Ms Justice Elizabeth Dunne found against Mr Desmond. She said there was “simply nothing” in Mr Desmond’s latest case that alleges fraud in the true sense or which satisfied the requirement for setting aside the judgments of those two courts. In Monday’s appeal over that decision, Michael Collins SC, for Mr Desmond, said it was necessary to have an oral hearing into what actually happened that led up to the findings of those courts. The “hook” which the tribunal used to examine Mr Desmond’s affairs was the misleading information that was provided to the tribunal, he said. Brian Murray SC, for the tribunal, opposed the appeal.

The tribunal had succeeded in the High Court in having the case dismissed because the Desmond statement of claim disclosed no reasonable cause of action, he said.