EXPERT'S TESTIMONY:A DANISH expert who was lead consultant to the 1995 mobile phone licence competition has told the Moriarty tribunal Esat Digifone was a deserved winner.
Michael Andersen, who acted as a consultant to more than 200 such competitions, said he did not believe the process was interfered with to benefit Esat Digifone.
He was not aware of any effort by the then communications minister, Michael Lowry, to influence the competition. “Esat submitted the best application,” he said in response to questions from Michael McDowell SC, for the tribunal.
“It was one of the most impressive applications had ever seen, at the time or indeed since.”
Mr Andersen said he had private dealings with the tribunal legal team in 2003 from which he formed the conclusion that it had an “anti-Esat agenda”.
He said tribunal counsel Jerry Healy SC made comments he found “troubling”. He believed the tribunal legal team was only interested in material that suited its preferred outcome for its inquiries.
He believed the legal team was hostile to him and did not want him to give evidence.
There had been a “threatening tone” in correspondence he had received from the tribunal, and he thought this was inappropriate.
He thought the hostile attitude of the tribunal was a “deliberate ploy”, as the tribunal did not agree with the evidence he wanted to give.
In November 2008, he was given the tribunal’s confidential preliminary findings in relation to the licence competition. He believed these were flawed.
Mr Andersen did not give evidence in 2003 because an indemnity he sought from the State was not provided.
In April of this year, a statement of intended evidence from him was forwarded to the tribunal by the solicitors’ firm acting for Denis O’Brien, founder of Esat Digifone.
However, Jacqueline O’Brien SC, also for the tribunal, said it was only in September that Mr O’Brien’s solicitor in his dealings with the tribunal, Paul Meagher, learned that Mr O’Brien had provided an indemnity to Mr Andersen in April.
The day prior to Mr Meagher being told, Mr O’Brien had told The Irish Times that he had provided an indemnity to Mr Andersen that was limited to his costs, Ms O’Brien said.
By then the tribunal was aware of the existence of the indemnity, having been told by Mr Andersen.
The indemnity covers any costs arising and includes the cost of any actions that might be taken against Mr Andersen or any company in which he held a controlling interest, arising from his evidence, Ms O’Brien said.
The statement produced in April by Mr Andersen was drafted after he held a meeting with his Danish solicitor, Carsten Pals, and Tom Reynolds, a solicitor employed by Digicel, the Caribbean telecoms company owned by Mr O’Brien. The indemnity was also discussed at that meeting.
Ms O’Brien said the “secret agreement” Mr O’Brien had with Mr Andersen would have to be taken into account when the tribunal was assessing his evidence.
The full statement produced in April by Mr Andersen has been redacted by the tribunal because of negative references to its confidential preliminary findings.
Counsel for the Department of Communications, John O’Donnell SC, objected to this. He said that after Mr Andersen’s evidence, new preliminary findings on the licence competition would have to be issued.
The department, he said, will seek to have any negative preliminary findings against it overturned in the courts if the tribunal does not agree to use an unedited version of the statement of intended evidence of Mr Andersen.
He said the tribunal had edited out those parts of the statement of Mr Andersen which “don’t suit” the tribunal.