Denis O’Brien established an arguable case before the Supreme Court that the Moriarty Tribunal may have exceeded its terms of reference by investigating the Doncaster Rovers transaction, which arose after the tribunal was established in 1997.
Mr O’Brien challenged the tribunal’s decision to hold public hearings concerning Michael Lowry’s possible connection with the purchase of Doncaster Rovers Football Club. The club was bought in August 1998 by Westferry Ltd, a company owned by the O’Brien family trust.
The tribunal had begun seeking information about the transaction in January 2003. On May 27th, 2004, it formally informed Mr O’Brien’s solicitors that it had decided to proceed to public sittings. Judicial review proceedings were not commenced until September 2004, when that module of the tribunal had begun.
Mr Justice Kearns held that the timing issue was arguable. The tribunal’s terms of reference used language directed towards payments and events that had already occurred. The Doncaster proposal itself did not exist when the tribunal was established: every part of the transaction post-dated that event.
That raised an arguable question as to whether investigating it went beyond the tribunal’s temporal remit. Leave to pursue judicial review was therefore warranted on that jurisdictional ground despite the delay.
The judge took a different view of Mr O’Brien’s other complaints. He held that the tribunal had relevant information capable of supporting its decision to hold public hearings. That included a 1998 letter from solicitor Christopher Vaughan referring to Mr Lowry’s “total involvement” in the transaction and other information concerning alleged connections with the deal.
Mr Justice Kearns said a tribunal did not require courtroom-quality evidence or a prima facie case before moving to public sittings. Relevant information providing a rational basis could suffice.
He also considered the late challenge to those non-jurisdictional issues unjustified and would refuse leave on those grounds. He urged that the substantive High Court hearing on the temporal issue proceed urgently because the leave decision effectively halted that module meanwhile.