A Supreme Court judge concluded that Denis O’Brien’s appeal over limits on his cross-examination of a witness to the Moriarty Tribunal had become moot after the Tribunal published its report. Justice William McKechnie said he would refuse to hear the appeal on its merits, but noted that his view did not prevail: the majority agreed with Chief Justice Denham that the Court’s exceptional jurisdiction should be invoked.
The appeal arose from three procedural rulings made on 2 November 2010 concerning Professor Michael Andersen, whose consultancy had assisted the Department of Transport, Energy and Communications in evaluating bids for the second Irish GSM mobile phone licence. The Tribunal barred questioning about meetings between Andersen and its legal team, and related notes, and limited questioning on other matters to five hours. The judgment says the cross-examination in fact lasted about six hours.
O’Brien argued that the restrictions prevented him from examining evidence relevant to allegations of bias by Tribunal lawyers. Andersen had made statements alleging bias against Esat Digifone and in favour of rival bidder Persona; he also considered that Esat Digifone had won the licence on merit. Those were Andersen’s statements and views, not findings made in this appeal.
The High Court dismissed O’Brien’s judicial review application in February 2011. He appealed two days after that judgment and unsuccessfully sought priority hearings. Part II of the Tribunal’s report was published in March 2011. O’Brien had not applied to stop publication and did not subsequently challenge the report’s contents.
McKechnie said that publication meant the requested orders to quash the rulings or require further cross-examination could no longer have practical effect. The remaining possible relief was a declaration that fair procedures had been breached. In his view, such a declaration would have no legal utility where the report itself had not been challenged, and continuing the case would risk a collateral challenge to the report.
He also concluded that there was no continuing controversy: Andersen’s evidence could not now be revisited, and the appeal would not affect the report’s findings. Although courts may exceptionally decide moot appeals, McKechnie found no compelling reason to do so here. He considered the dispute personal to the parties, unlikely to recur, and not one requiring clarification of the law on fair procedures. His conclusion was that he would refuse to entertain the substantive appeal. The excerpt records his individual view and the majority’s position on invoking the exceptional jurisdiction; it does not set out the majority’s final reasoning or order.