Denis O'Brien suffers another setback in the courts

If Denis O'Brien is so confident that he did nothing untoward when winning the second mobile phone licence a decade ago then why was 2005 punctuated by legal challenges to the work of the Moriarty tribunal and public statements demanding its immediate conclusion?

Solicitors acting on behalf of O'Brien have been known to write to publishers demanding that no conclusions should be drawn prior to the finish of the tribunal, and the publication of a report by Justice Michael Moriarty. Which is fair enough.

That said, it is unlikely that those solicitors will write to the Irish Times to complain about a comment piece carried on 17 December. It stated that "it is hard to see how evidence heard at the Moriarty tribunal could prompt any conclusion that Digifone won the State's second mobile-phone licence due to corrupt intervention by Michael Lowry".

But the same piece also referred to inquiries into possible financial dealings between O'Brien and Lowry. "The evidence to date in relation to these matters is more troubling than that in relation to the licence competition," the piece stated.

Which is exactly why the tribunal continues its work, notwithstanding vicious and public attacks by O'Brien and Dermot Desmond in September – outside the confines of the tribunal – after the publication of what was effectively a progress report on the work of the tribunal.

It may have been forgotten by many but the tribunal has discovered a number of very curious financial transactions that still have not been explained properly. Friends of O'Brien tried (and failed) to transfer over £150,000 to Michael Lowry and subsequently tried to give him shares in British property deals.

Most pertinently, O'Brien is appealing to the Supreme Court an earlier High Court decision not to grant an order preventing the tribunal holding public hearings into a possible link between former government minister Michael Lowry, and another property deal involving the Doncaster Rovers stadium in England that O'Brien owns.

Also in the High Court in the week before Christmas Mr Justice John Quirke ruled that he could see no reason why the Moriarty tribunal should not be entitled to call professional witnesses to testify at public sittings.

This was a blow for O'Brien in his latest attempt to limit the work of the Moriarty tribunal. He is likely now to go to the Supreme Court in an attempt to stop the tribunal from taking evidence from economist Peter Bacon as to his assessment of the procedures that led to the awarding of the State's second mobile phone licence to Esat Digifone back in 1995. The judge's comment that Bacon would be available for cross-examination is unlikely to mollify O'Brien.

According to evidence given to the High Court, Bacon's report, finished in March 2003, included a "tentative view" that a report by a Danish management consultant retained by the Government to provide expert assistance in the licence competition "may contain a number of seriously fundamental flaws".

Bacon apparently thought that "everything points to Michael Andersen (the consultant) having been manipulated. He was pushed around".

Andersen has declined to give evidence to the inquiry unless the Government gives an indemnity against any claims that might arise from his evidence.

O'Brien and his lawyers have argued that in his absence the tribunal should not continue. They also believe that Bacon's report should not constitute evidence and should therefore be inadmissible before the tribunal.

"Either the process was interfered with or it was not. All the evidence given is that it was not. That should be the end of it," O'Brien said.

Some powerful and influential people are sympathetic to O'Brien's plight. The Portuguese resident, who legally avoided payment of about €55 million in capital gains tax on the sale of his shares in Esat Digifone by use of a legislative loophole, was appointed as deputy governor (chairman) of the Bank of Ireland this year.

Like Brian Cowen in the case of Paul Carty, Bank of Ireland chairman Richard Burrows clearly decided there was no need to wait for the publication of a report from the Moriarty tribunal before making this appointment. While O'Brien may have complained about the treatment he has endured it clearly has not affected his standing among his peers.