The Moriarty tribunal has reimbursed €179,500 in legal costs for a key witness it accused of concealing information, in a payment that comes 25 years after the inquiry was established.
Businessman Aidan Phelan was formerly accountant to billionaire Denis O'Brien. He was a central figure in the mammoth investigation that led the tribunal to find that then minister Michael Lowry "secured the winning" of the 1995 mobile phone licence for Mr O'Brien's Esat Digifone.
Responding to questions, the Government said the money was paid on February 21st to the National Treasury Management Agency (NTMA) "in relation to [an] order for costs" made by the tribunal for Mr Phelan. The NTMA runs the State Claims Agency, which manages legal cost claims against the State.
“I wrote my first cheque for legal fees when I was in my 40s. I’m now 70,” Mr Phelan said when asked about the payment of public money for his expenses.
The money was paid out despite the tribunal naming Mr Phelan among seven people who engaged in "persistent and active concealment" that was "calculated to obscure from the tribunal evidence indicating monetary connections" between Mr Lowry and Mr O'Brien. Others accused of concealment included Mr Lowry, an Independent TD formerly of Fine Gael, and Mr O'Brien, owner of the Caribbean mobile group Digicel.
An Garda Síochána sent a file in 2017 to the Director of Public Prosecutions (DPP) after investigating the alleged obstruction of the tribunal's work and the DPP "directed no prosecution".
Mr Lowry won a 2018 Court of Appeal case against the tribunal’s decision to award him only one-third of his legal costs for participating in the inquiry.
According to Mr Phelan, that ruling was decisive for his claim for legal fees from the tribunal. “On the foot of that they contacted me and – yes – I got the award back,” he said.
“The whole legal fees thing was a turgid affair really. They’re very slow to release the monies. As far as I was concerned I didn’t expect to get anything back because of the chairman’s opinion.”
The tribunal was established in September 1997 to examine payments to the late Charles Haughey and to Mr Lowry, with total costs exceeding €65 million by 2020.
Its 2011 final report said it was “beyond doubt” that Mr Lowry imparted “substantive information” to Mr O’Brien, which was “of significant value and assistance to him in securing the licence”.
A Garda investigation into the tribunal’s findings is ongoing. In response to questions about police scrutiny of the tribunal report, a Garda spokesman said: “This is an ongoing investigation with inquiries being carried out outside of the jurisdiction on foot of a Mutual Assistance Request with the assistance of Eurojust.”
Eurojust is the EU agency for criminal justice co-operation.
Asked about the tribunal’s conclusions, Mr Phelan said: “I’m reluctant to criticise the judicial process. The chairman of the tribunal had an opinion – he gave an opinion. A lot of the findings were not, in my opinion, based on proper evidential tests.”
Mr O’Brien always rejected the tribunal’s report, claiming it was based on “opinions” with no basis in evidence, fact or law, and insisting he never made any payment to Mr Lowry. At the time Mr Lowry accused it of issuing a report that was “factually wrong and deliberately misleading”.
The money paid out for Mr Phelan was one of two reimbursements the tribunal made in recent months. The other was a €25,262 payment to the NTMA on December 21st in relation to an order made in 2012 for the estate of Philip Monahan, a developer of shopping centres. Mr Monahan died in 2003.