The High Court has refused Denis O’Brien and Dermot Desmond leave to seek judicial review over Michael McDowell’s role in examining Professor Michael Andersen before the Moriarty Tribunal. The court held that the applicants’ case was not arguable and refused leave; it did not determine the underlying allegations through a substantive judicial review hearing.
The applicants argued that Mr McDowell’s previous political and legal involvement in matters connected to mobile-phone licences created conflicts of interest and an appearance of bias. They said the Tribunal’s decision to retain him could undermine the fairness of its process. Their requested remedies included declarations, orders preventing his continued involvement and, for Mr O’Brien, an injunction.
The court heard the leave application on 27 October 2010, with submissions from both applicants and the respondent. The judge described the threshold for leave as low: an applicant had to show an arguable case. An interlocutory injunction could issue only if that threshold was crossed.
Evidence from Stewart Brady, solicitor to the Tribunal’s sole member, was that Mr McDowell had been engaged specifically to examine Professor Andersen after serious allegations had been made against the Tribunal and its counsel. Mr Brady said Mr McDowell’s brief was limited to that examination, remained under the Tribunal’s direction, and would end when Professor Andersen’s evidence was complete. The respondent also stated that Mr McDowell had no role in the Tribunal’s deliberations. The judge accepted that account and found he had been engaged as independent counsel, rather than as part of the Tribunal team.
The judgment said objective-bias rules would apply to barristers only in exceptional circumstances. It did not decide whether Mr McDowell’s past roles amounted to bias; it concluded that the applicants’ theory did not give rise to an arguable case in law on the evidence before it. Leave to seek judicial review was refused.