A Supreme Court appeal over limits on the cross-examination of an expert witness at the Tribunal of Inquiry into Payments to Messrs Charles Haughey & Ors was moot after the tribunal published its report, Justice Iseult O’Malley said in a judgment delivered on 12 July 2016.
Justice O’Malley agreed with the Chief Justice and Justice McKechnie that there was no live controversy requiring resolution. She also said that, if the merits were considered, the rulings did not breach the appellant’s right to fair procedures. Her judgment records that the majority considered it appropriate to examine the substance of the case.
The appellant, Denis O’Brien, had been chairman of Esat Digifone when it successfully applied for Ireland’s second GSM licence in 1995. He challenged two rulings made during the tribunal’s 2010 hearings on evidence from Professor Michael Andersen, a Danish telecommunications consultant who had advised on the licence selection process.
Professor Andersen told the tribunal that, in his view, members of its legal team had been biased against Esat Digifone. The tribunal’s sole member declined to allow other parties to cross-examine him on those allegations, saying it would be improper to hear evidence about his own legal team. The sole member also allotted O’Brien’s counsel five hours for cross-examination because the professor’s availability was limited. Counsel ultimately questioned him for six hours after some parties agreed to share time.
O’Brien argued that the restrictions prevented questions that could have supported his case and affected the tribunal’s consideration of evidence. He sought judicial review, including an injunction to prevent publication of the report, but the High Court refused relief. He appealed and twice sought priority, without success, but did not apply to the Supreme Court to restrain publication. The report was published in March 2011, and he did not bring a challenge to its findings.
Justice O’Malley said a post-publication challenge would have needed to connect the allegedly unfair rulings to the tribunal’s actual findings and any reputational harm. As no challenge to the report had been brought, the court could not assess whether the feared harm had occurred or resulted from the rulings. A free-standing declaration about the hearing procedures would not resolve that question, she said.
She concluded that publication overtook the appellant’s apprehensions and that any later cause of action would have to address the report’s actual findings. She did not express a definitive view on whether a later challenge would have been barred as an abuse of process. Her judgment addresses her reasoning; it records the court’s overall conclusion as moot and notes that the majority examined the merits.