THE MORIARTY tribunal has dropped adverse findings it issued in January of this year arising from evidence heard from barrister Richard Nesbitt SC on the issuing of a mobile phone licence to Esat Digifone.
Businessman Dermot Desmond was informed of the decision to drop the findings on Friday. The precise nature of the findings dropped was not known up to now.
Mr Desmond had threatened judicial review proceedings if the findings were not dropped.
Mr Nesbitt was called to give evidence in July 2009 about whether he had given legal advice to the Department of Communications in 1996 on the legality of issuing a licence to Esat Digifone. He was called in the wake of Mr Justice Moriarty’s original provisional findings, issued in November 2008, and following submissions from a number of parties.
Mr Nesbitt was asked for his opinion in 1996 because Mr Desmond had become an Esat shareholder in the period after Esat had applied for the licence. Mr Nesbitt said in evidence that he had given advice in 1996 to the effect that the licence could be issued notwithstanding the arrival of Mr Desmond as a shareholder.
In the wake of his evidence, further confidential provisional findings were issued in January of this year. In March the tribunal heard that Mr Justice Moriarty in these findings “made clear the evidence of Mr Nesbitt was not accepted”.
The comment was made during new hearings where evidence was heard from Denis McFadden and John Gormley, officials from the Office of the Attorney General, which had sought the opinion from Mr Nesbitt. They were called following submissions from a number of parties and they supported the evidence of Mr Nesbitt.
Mr Justice Moriarty told Mr Desmond on Friday that, in the light of the officials’ evidence, he has decided to withdraw his January findings.
He also indicated that some of his 2008 provisional findings in relation to the legality issue are being reviewed and may be withdrawn.
The tribunal initially resisted calls from third parties in the wake of the January findings, that Mr McFadden and Mr Gormley be called to give evidence. It said it did not see how their evidence could advance the tribunal’s inquiries.
However their evidence has now led to the dropping of adverse findings that affected the State, the Department of Communications, the Office of the Attorney General, the former minister Michael Lowry, Mr Nesbitt, Mr Desmond and the other shareholders in Esat Digifone, including businessman Denis O’Brien.
Meanwhile an informed source has said the lead counsel with the tribunal, John Coughlan SC, is on sick leave but is still a member of its legal team.
Mr Coughlan and Jerry Healy SC were the two senior barristers appointed to the tribunal when it was established in 1997.
It is understood Mr Healy is the lead counsel in Mr Coughlan’s absence.
