center:8002The businessman Mr Denis O'Brien has begun a High Court attempt to stop the Moriarty tribunal hearing, in public, evidence relating to his purchase of Doncaster Rovers Football Club Ltd, which owned the lease on the club's stadium, and the alleged connection of Mr Michael Lowry to the deal.
Mr Eoin McGonigal SC, for Mr O'Brien, told the court yesterday that the tribunal chairman, Mr Justice Moriarty, had overstepped his powers by deciding to hear the evidence in public.
A public hearing is being challenged on a number of grounds. Mr McGonigal, who appears with Mr James O'Callaghan, said there was no sufficient evidence justifying such a hearing, and that the tribunal had failed to carry out a full and proper inquiry in private before making any decision relating to a public hearing.
Mr O'Brien seeks a declaration that a public hearing would breach his rights to fair procedures and to natural and constitutional justice and his rights to privacy and good name.
He also asked Mr Justice Herbert for a ruling that a public hearing, knowing that two vital witnesses were unavailable to give evidence before the tribunal, denied him the right to cross-examine them.
These witnesses, a London solicitor, Mr Christopher Vaughan, and a Northern businessman, Mr Kevin Phelan, had already given material and documents to the tribunal which the chairman considered relevant.
The court was told Mr O'Brien was also seeking a declaration that Mr Justice Moriarty's decision to have Mr Vaughan interviewed by tribunal lawyers in London on September 9th last showed bias on the part of the tribunal as well as breaching Mr O'Brien's rights to fair procedures and constitutional justice.
Mr O'Brien also claims the tribunal should not have proceeded to public hearings without having fully investigated the alleged evidence of four people involved in the Doncaster Rovers sale - Mr Mark Weaver, Mr Ken Richardson, Mr R. Wilkes and Mr Gerard Moloney - where they had presented material to the tribunal and had made allegations against him.
Mr McGonigal told the court that, following the sale, one issue remained after closure in relation to a sum of £250,000 which had become the subject matter of mediation in London.
During that time a letter dated September 25th, 1998, had been used as a form of blackmail against the O'Brien interest. Mr O'Brien had reported the matter to the London Metropolitan Police.
Mr Weaver and Mr Richardson would be vital witnesses in that they had admitted that Mr Lowry had not been involved in the deal.
Mr McGonigal added that these people appeared to have met together with Mr Moloney and had made allegations against Mr O'Brien to the tribunal, and these matters had not been inquired into at all but had been let lie. The tribunal had made no inquiries of Mr Weaver and Mr Richardson.
Mr O'Brien is also seeking injunctions requiring the tribunal to furnish his legal team with all documentation and interviews relating to its inquiries into the Doncaster Rovers sale and into its private inquiry into the "money trail" and "GSM" modules.
Mr McGonigal said he was also seeking a declaration that procedures adopted by Mr Justice Moriarty and the delay in concluding the tribunal had infringed Mr O'Brien's rights. Mr McGonigal said that when the Moriarty tribunal was set up on September 26th, 1997, it appeared to relate to a period when Mr Lowry held public office and to matters which had taken place up to or before that date.
He said Doncaster Rovers Football Club stadium had been purchased in August 1998 some two years after Mr Lowry held ministerial office.
Mr McGonigal said the tribunal had in its possession a letter from Mr Vaughan to Mr Lowry dated September 25th, 1998, which referred to Mr Lowry's alleged "total involvement" in the stadium purchase.
Mr Vaughan had since informed the tribunal this letter had been written in error.
Mr McGonigal said that as a result of Mr Vaughan's letter the tribunal's legal team had commenced inquiries into the Doncaster transaction.
He said full details of the purchase had been provided to the tribunal on June 10th, 2004, and they clearly established there had been no payments to Mr Lowry relating to the deal, nor had he any registered or beneficial interest in Doncaster Rovers conferred on him by Mr O'Brien or anyone associated with him.
Mr McGonigal said the tribunal's investigation of the Doncaster project could and should be fully conducted in private in order to protect the constitutional right to privacy and good name of Mr O'Brien.
At the end of such a private investigative stage, if the tribunal had made a determination that sufficient evidence existed in relation to a particular matter warranting a full public inquiry, it should proceed by identifying the allegations or issues requiring public inquiry.