Legal advice sought by the Fine Gael party in 1998 in relation to money it received and subsequently returned to Esat’s Norwegian partners Telenor said the party did not have an obligation to disclose the matter to the Moriarty tribunal.
The $50,000 donation was made in December 1995 towards a Fine Gael fundraising dinner promoted by the late businessman David Austin, who was an associate of then minister for communications Micheal Lowry and Denis O’Brien, and held in New York a month earlier.
The donation was made by Esat’s Norwegian partners Telenor, but was later reimbursed by Mr O’Brien’s company.
The Moriarty report says that, following a conversation with Mr O’Brien in December 1995, Telenor executive Arve Johansen contacted Mr Austin and then received an invoice for $50,000 for “consultancy services” and a direction to pay the sum into a Bank of Ireland account in Jersey.
Telenor subsequently recovered the sum after sending a number of invoices to Esat.
Mr Austin informed then taoiseach John Bruton of the Esat donation, but was told that the party could not accept a payment from the source following the recent granting of the licence to the company.
The money remained in Mr Austin’s account, but was later transferred to party supporter Frank Conroy for transmission to Fine Gael and described as the balance of funds raised in connection with the New York fundraiser. He received a cheque, payable to himself, for the punt equivalent of $50,000.
Telenor and Esat subsequently decided it should be established that the $50,000 had been received by Fine Gael and not Mr Lowry, so as to exclude the possibility he had benefited personally from the donation.
Fine Gael later returned the payment to Telenor by cheque and this was passed on to Mr O’Brien before being returned to Fine Gael following “a fractious course of dealings” between Esat shareholders.
The Moriarty report says following media reports in 2001, which brought the matter to the attention of the tribunal for the first time, Fine Gael issued a bank draft covering the funds which ended up with Esat Digifone.
The payment is described as being “in essence a political donation to Fine Gael”, the transmission of which to the party was “secretive, utterly lacking in transparency, and designed to conceal the fact of such payment by or on behalf of the donors”.
However, legal advice published on the party’s website tonight said the payments did “not come within the terms of reference of the Moriarty Tribunal” and therefore the party was under no obligation to disclose the matter.
The advice from James Nugent SC, dated March 13th, 1998, said that even though Mr Lowry was a trustee of Fine Gael at the time of the New York dinner, the payments were not made “directly or indirectly” to him and so the terms of reference of the tribunal did “not encompass this particular payment.”
"In my opinion, the payments made by Mr O'Brien to Fine Gael do not come within the terms of reference of the Moriarty Tribunal," wrote Mr Nugent.
"Firstly, the payments were not made directly or indirectly to Michael Lowry.
"Secondly, nothwithstanding the fact that Mr Lowry was a trustee at the time of the New York dinner, Fine Gael could not be considered to be a connected person within the meaning of the Ethics in Public Office Act 1995. Fine Gael is not a 'person' nor is it an 'individual' nor is it a 'body corporate'.
"Thirdly, even if it were a body corporate it could not be said that one of the trustees of Fine Gael 'controls' that body corporate.
"For the foregoing reasons I am of the opinion that the terms of reference of the Moriarty Tribunal do not encompass this particular payment."