Businessman Denis O'Brien has "extreme concern" that the chairman of the Moriarty tribunal may make findings against him based on hearsay and unproven documentary material, the tribunal has been told.
In a lengthy legal submission made on his behalf to the tribunal, Mr O'Brien argues that Mr Justice Michael Moriarty was mistaken in his approach to the matters of standards of proof and rules of evidence in his first report.
That report, published last December, concerned payments to former taoiseach Charles Haughey. At the outset Mr Justice Moriarty stated that "in essence the findings of this or any tribunal are no more than an expression of opinion in relation to matters considered by it". He also referred to the tribunal not being bound by court rules of evidence.
A second report, focusing on payments to former government minister Michael Lowry, is expected to be published in the new year but Mr O'Brien is seeking to have Mr Justice Moriarty change his position on standards of proof and rules of evidence. He argues that Mr Justice Moriarty should follow the practice of all other previous tribunal reports.
The Irish Times is aware of the contents of the submission made by Mr O'Brien in which he argues that the tribunal has been asked by the Oireachtas to answer certain factual questions. "It did not seek opinions or unsubstantiated commentary."
The answers being sought must be answered with findings based on evidence heard under oath at public sittings. The difference between this and an expression of opinion is that an expression of opinion does not have to be based on evidence properly admitted, the submission argues.
Given the serious consequences for a person against whom a finding is made by a tribunal, tribunals should not relax or restrict "the procedural protections which those appearing before it should enjoy".
Mr O'Brien's submission said he is not arguing that the criminal standard of proof, beyond reasonable doubt, should apply. The standard of proof that applies in civil cases should, but it should be a heightened civil standard, given the "grave nature" of the matters the tribunal will make findings on.
Mr Justice Moriarty should follow the lead of Mr Justice Kevin Lynch in the Kerry babies report in 1985 and apply a standard of "substantial probability". Reasoned opinions are not appropriate given the possibility of irreparable damage being done to people's reputations, the submission argues.
As well as being wrong, any finding that Mr O'Brien had paid money to Mr Lowry in return for the State's second mobile phone licence, would be used against Mr O'Brien. Rivals could use such a finding to argue against Mr O'Brien being allowed play a role in the telecommunications networks of other countries. Mr O'Brien "currently has many licence applications pending all over the world". A finding that Mr O'Brien had been involved in corruption would be "hugely damaging".
Mr O'Brien's submission also argues that if it is found that the evidence heard does not support a particular allegation, then the chairman's report should make it plain that the allegation was unfounded.
The submission gives particular attention to the recently completed module concerning Doncaster Rovers Football Club Ltd, a company owned by Mr O'Brien and with which he and Mr Lowry have said Mr Lowry never had any involvement. Rumour and "malicious misinformation" have distorted the Doncaster purchase, Mr O'Brien said.
No witness has given evidence of Mr Lowry being involved and documentary references to Mr Lowry were not substantiated in evidence as meaning Mr Lowry was involved, the submission argues. The submission states that a Northern Ireland-based businessman, Kevin Phelan, who played a central role in the Doncaster purchase but who has refused to come to Dublin to give evidence, has since the completion of the module made a sworn affidavit which the tribunal now has. The affidavit confirms no involvement by Mr Lowry, according to the submission.
Mr O'Brien argues in his submission that the only material suggesting an involvement by Mr Lowry in Doncaster is hearsay and that hearsay "cannot be relied on for the purpose of the tribunal reaching its findings".
He summarises his case by saying that even if the tribunal refuses to apply the "substantial probability" test, it is "imperative that some legally recognisable standard of proof be applied, such as the civil standard, namely on the balance of probabilities".