ANALYSIS:The Moriarty tribunal was misled by a changed solicitor's letter
A PROPERTY deal worth £4.3 million sterling in 1998 involving Doncaster Rovers’ football ground had links with Michael Lowry, the Moriarty report concluded.
Mr Justice Michael Moriarty said he was “satisfied that Mr Lowry did have an involvement in the Doncaster Rovers transaction, which it was intended would entail a payment to, or the conferral of a pecuniary advantage on, Mr Lowry by Mr Denis O’Brien”.
He said the tribunal had been unable to determine the precise nature of Lowry’s interest. While the tribunal “could comment on what it believes may have been the nature of Mr Lowry’s interest and involvement”, to do so would be “unduly speculative”. The Doncaster property now belongs to an O’Brien company called Westferry.
Kevin Phelan, an Omagh-based land agent, who did not give evidence to the tribunal; Christopher Vaughan, an English solicitor; and Aidan Phelan, a Dublin accountant and associate of O’Brien’s, were all involved in the transaction.
When the tribunal first looked at Doncaster in 2001, it accepted O'Brien's assurances that it had nothing to do with Lowry. However, reports in The Irish Timesin January 2003 quoted a 1998 letter from Vaughan to Lowry that referred to Lowry's "total involvement". This prompted the tribunal to look again at the matter.
The reports said the letter had been produced in 2002 at arbitration hearings in London with the vendors of the Doncaster property, and that as a result a blackmail complaint had been made by O’Brien’s father, Denis O’Brien snr, to London police.
In September 2004, O’Brien went to the High Court to try to stop the tribunal holding hearings into Doncaster. During the process the tribunal learned that Lowry’s accountant, Denis O’Connor, a partner with Brophy, Butler, Thornton, had been involved in discussions with Kevin Phelan over fees Phelan claimed he was due from the Doncaster deal. The tribunal had been given Vaughan’s files on the English transactions, but Kevin Phelan knew the files had been doctored. He used this knowledge in his campaign to be paid more money, and in the end was paid stg£150,000 by Westferry.
In August 1999 Kevin Phelan had sent Aidan Phelan a fax in which there was a reference to an ML, and a reference to Doncaster. The ML reference was to Lowry.
According to the tribunal report, when O’Brien took his court challenges against the tribunal, the ML fax was in his possession and in the possession of his solicitors, William Fry. However, it was not given to the tribunal or disclosed to the court.
The fax had first come to the attention of William Fry in 2002 when Kevin Phelan had been looking for money. In London the law firm Carter-Ruck was acting for Westferry on the blackmail complaint. Following the articles in The Irish Times, the tribunal sought the files of Carter-Ruck. It contacted the police and they said they had no difficulty with this. Ruth Collard of the London firm wrote to Denis O'Brien snr informing him of this, in February 2003. She also wrote to Frys. A few days later O'Brien snr wrote back, asking her to make certain deletions and insertions to her letter. She did as asked.
The effect of the changes, according to the judge, was that an unsuspecting third party reading the altered letter would form the view that the police had a concern about the files being handed over. A copy of the amended letter also went to Frys.
In September 2003 the Doncaster case was transferred from Frys to LK Shields. On September 30th, 2003, Owen O’Sullivan, a partner in Frys, sent a fax to Hugh Garvey, managing partner in LK Shields. He enclosed both the original and amended letters from Collard and said he was doing so “in case these are not among [the files] you receive from Denis”.
In February 2004 LK Shields told the tribunal that Carter-Ruck had a concern about the file being handed over “which we understand is shared by the police”. The tribunal accepted the statement, but when it later took the matter up directly with the London police, it was told the police had no concern about the tribunal getting the information.
Evidence was given by Collard and Garvey. Mr Justice Moriarty said there “seemed to be a tendency in the evidence heard to suggest that, if any blame or culpability arose, it should relate to some other solicitor”. Ms Collard said once both versions of the letter had been given to O’Sullivan in Frys, responsibility rested with him.
Garvey, he said, sought to assign any blame that arose with Collard. O’Sullivan did not testify but, the judge said, if he had he would presumably “have understandably stated that he specifically drew” Garvey’s attention to the two versions of the letter.
The tribunal asked Owen O’Connell of Frys about the delay in notifying it about the ML fax. O’Connell said he had discussed the matter with O’Sullivan and decided not to refer the fax to the tribunal. He said they had not broached the matter with O’Brien snr, as such a move would have been “tantamount to a direction” to O’Brien. It was clear O’Brien didn’t want to receive any such advice, he said.
SOLICITORS' RESPONSES REPORT CRITICAL OF TWO FIRMS
THE CHAIRMAN of the Moriarty tribunal, Mr Justice Michael Moriarty, said in his report he found it “extremely difficult” to accept evidence given by Hugh Garvey, the managing partner of LK Shields.
The evidence from Mr Garvey concerned his failure to appreciate what had been stressed to him by Owen O’Sullivan, of William Fry solicitors, about two different versions of a letter given to his firm by Fry’s. There was no response to requests yesterday for a comment from LK Shields on the Moriarty report.
Mr Justice Moriarty also said a decision by William Fry solicitors not to convey to the tribunal a fax it had which was relevant to the tribunal’s inquiries contributed to significant delay.
In a statement yesterday, the firm said it was a fundamental right of every citizen to be able to instruct their solicitor in total confidence. “It is for this reason that we cannot comment on specific issues raised in the report or by journalists.”
The firm noted that one of its senior partners, Owen O’Connell, had given evidence and said he was commended in the report for being “constructive and helpful” and over the way he observed his duties to his client while co-operating with the tribunal.
Ruth Collard, of Carter Ruck solicitors, London, responded to the report by saying that when Denis O’Brien snr asked her to amend and resend certain letters, she took the view the alterations were matters of emphasis rather than substance.
“I would not have made the alterations had I known or suspected that there might be any question of the letters being used to mislead the tribunal or to conceal information from it.”
She had not known any inaccurate claim had been made to the tribunal. “Had I been aware of this, I would have corrected it,” she said. Mr Justice Moriarty in his report said Ms Collard impressed him as a witness.