The Supreme Court has dismissed Denis O’Brien’s appeal over limits imposed on his cross-examination of Professor Michael Andersen before the Tribunal of Inquiry into payments to Charles Haughey and Michael Lowry.
In a judgment delivered on 12 July 2016, Chief Justice Susan Denham said the appeal had become moot because Andersen’s examination was complete and the Tribunal had published Part 2 of its final report in March 2011. O’Brien had not brought a judicial review challenge to that report. The Court nevertheless exercised its discretion to hear the appeal, citing the circumstances in which it became moot, O’Brien’s efforts to secure an early hearing and the constitutional right of appeal.
The appeal concerned three rulings made by the Tribunal on 2 November 2010. They barred questioning Andersen about meetings and notes involving the Tribunal’s legal team, and limited the time available for cross-examination. The High Court had refused O’Brien’s application for judicial review on 1 February 2011.
Andersen, managing director of Andersen Management International, had been engaged by the Department of Transport, Energy and Communications to help assess applications for a second GSM mobile phone licence. O’Brien’s case was that Andersen’s evidence was central to the inquiry and that further questioning could address alleged bias by members of the Tribunal’s legal team. The judgment records that Andersen’s evidence supported O’Brien and that he had said he believed members of the legal team were biased against the Esat Digifone bid.
The Tribunal had ruled in March 2010 that it would be inappropriate for its lawyers to be called as witnesses. After Andersen became willing to give evidence, the Tribunal retained senior counsel Michael McDowell to examine him. Following Andersen’s direct evidence, the Tribunal barred the disputed lines of questioning and initially set a five-hour limit, later extended to six hours.
The Supreme Court said the High Court had grounds for finding that Andersen had already explained his view of alleged bias, and that further questioning might only have repeated or amplified that evidence. It also upheld the time limit as appropriate case management, given Andersen’s limited availability and the need to account for other parties’ rights.
The Court concluded that the Tribunal’s rulings did not breach fair procedures, constitutional justice or O’Brien’s rights. It therefore declined to interfere with the High Court decision and dismissed the appeal. The judgment addressed the cross-examination rulings; it did not review the findings in the Tribunal’s published report.