The attorney general's office does not agree with a key finding of the chairman of the Moriarty tribunal, Mr Justice Michael Moriarty, the tribunal was told today.
Barrister with the Attorney General’s office Denis McFadden said it has “always been the view of the Attorney General’s office, and the Attorney General,” that legal advice given in 1996 by Richard Nesbitt SC, covered the matter of the ownership of the Esat Digifone consortium. Mr Gleeson was the attorney general in 1996 and adopted Mr Nesbitt’s advice as that of his office.
The tribunal chairman, in a ruling in 2008, said the advice did not cover the ownership issue, and that the Attorney General’s office had confirmed that this was so.
The tribunal is investigating whether the State took legal advice on the involvement of Dermot Desmond as a 20 per cent shareholder in Esat Digifone, prior to the issuing of the State’s second mobile phone licence to that consortium, in 1996. Mr Desmond was not part of the Esat bid when it was submitted in 1995.
Jim O’Callaghan SC, for Esat’s founder businessman Denis O’Brien, asked Mr McFadden if he was “bemused” when he heard what Mr Justice Moriarty’s 2008 ruling said in relation the Attorney General.
Mr McFadden said he and his colleague, John Gormley, “were most certainly surprised and we asked to see where it was stated and which Attorney General had stated it. We were informed that there was no such response.”
Mr McFadden has told the tribunal that he always believed Mr Nesbitt’s advice covered the ownership issue and said it was legally permissible to issue the licence.
He said he had expressed this view during a private meeting with tribunal counsel in October 2002. The meeting was attended by Mr Nesbitt.
He said Jerry Healy SC, for the tribunal, had “tested” the opinion in discussion with Mr Nesbitt. Mr Healy had described the opinion using “another word for manure. One beginning with s.” Pressed to be more forthcoming, he said Mr Healy had described Mr Nesbitt’s advice as “s***e”.
However he said he believed it was “sophisticated” legal advice which analysed the matter from the point of view of European law and a recent commission directive. He said the meeting was cordial, a discussion between colleagues, and he left feeling the view he’d expressed had been accepted.
It was not until 2008 that he learned the tribunal had a different view of Mr Nesbitt’s advice. When it was pointed out to him that there was no mention of the October meeting in the tribunal’s lengthy opening statement in December 2002 on the licence issue, Mr McFadden noted that the issue of Mr Nesbitt’s advice was privileged at that time. Legal privilege was lifted by the cabinet in the wake of provisional findings issued by Mr Justice Moriarty in November 2008.
Mr McFadden said he was "definitely not" part of a "conspiracy" with Mr Nesbitt and Mr Gormley to mislead the tribunal.