LAWYERS FOR the Moriarty tribunal have asked the High Court to halt a legal action by businessman Dermot Desmond aimed at setting aside judgments of both the High Court and Supreme Court on grounds the tribunal allegedly gave “misleading, untrue and inaccurate” evidence.
Mr Desmond claims the High and Supreme Courts, when rejecting judicial review challenges by him in 2003 and 2004 respectively, had relied on misleading and untrue evidence in affidavits from the tribunal concerning the nature of legal advice obtained by it concerning aspects of the evaluation of bids for the State’s second mobile phone licence.
Yesterday, Ms Justice Elizabeth Dunne began hearing an application by Shane Murphy SC, for the tribunal, to strike out those proceedings on grounds they have no reasonable chance of success. Mr Desmond is opposing that application. The action cannot succeed as Mr Desmond would have to prove the tribunal had been guilty of “purposeful and deliberate dishonesty”, counsel said.
Mr Desmond could not prove “fraud in the strict legal sense of conscious and deliberate dishonesty”, he argued.
The proceedings arise from the High Court’s rejection in 2003 of Mr Desmond’s case arguing the tribunal was not entitled to inquire into whether the evaluators of the mobile licence competition had considered the Glackin report when considering IIU’s later involvement in the Telenor consortium bidding for the licence.
The 1992 report set out the findings of an investigation into the sale of the Johnston, Mooney and O’Brien site in Ballsbridge and the involvement of firms in which Mr Desmond had an interest.
IIU had joined the Telenor consortium in September 1995, between the date of the licence application and the date of the award of the licence, and IIU argued the Glackin report was irrelevant to the tribunal’s terms of reference. Evidence of the change in ownership was formally notified to the Department of Transport, Energy and Communication in April 1996, four weeks before the licence was issued.
Mr Desmond claims the tribunal was aware at the time of his judicial review hearings the Department of Transport, Energy, Communications had received legal advice to the effect there was nothing legally wrong with IIU joining the consortium between the date of the application and date of the award.
However, in an affidavit opposing his judicial review, the tribunal had given the clear impression the legal advice obtained by the department related only to the period after the licence award, he claims. He claims the tribunal knew the advice related to the period prior to the award as that matter had been clarified at a meeting with the Attorney General’s staff and department officials which was attended by tribunal personnel.