Tribunal counsel urged to retract 'credibility' remark

TRIBUNAL CHAIRMAN Mr Justice Michael Moriarty rejected a suggestion that he dissociate it from an aspect of the questioning of Richard Nesbitt SC by tribunal counsel John Coughlan SC.

Rossa Fanning, for former minister for transport, energy and communications Michael Lowry, raised the issue of Mr Coughlan asking Mr Nesbitt about the “credibility” of his evidence. “It is shameful that this tribunal has been reduced to discrediting one of the most eminent members of the senior bar.”

The “attack on the credibility of Mr Nesbitt” was for the “collateral purpose” of impugning Mr Lowry and others, he said.

He called on Mr Coughlan to withdraw the remark and apologise and for the chairman to dissociate the tribunal from the question. He said the question was not appropriate in circumstances where Mr Nesbitt had given evidence that had not been contested.

Mr Justice Moriarty described Mr Fanning’s comments as “headline catching” remarks and said they involved a presumption that Mr Nesbitt should be treated differently to any other witness.

Mr Nesbitt told Jim O’Callaghan SC, for Esat founder Denis O’Brien, that he never formed the impression that anyone was putting him under any pressure to come up with the legal advice he did.

He could recall saying at a meeting that it was his opinion that changes to the Esat consortium that did not affect the business plan that had won the licence competition, were legally permissible.

He had not expressed his view earlier that the tribunal was incorrect in thinking that his written advice did not address the matter, because of the legal privilege issue. “I said nothing because I believed it was privileged,” he said.