The Supreme Court has dismissed Dermot Desmond’s appeal over the Moriarty Tribunal’s use of a public report containing findings critical of him, and affirmed the High Court order refusing judicial review. The court held that the Tribunal could refer to the Glackin Report while examining witnesses without giving Desmond advance notice of each reference.
The appeal concerned the Tribunal’s inquiry into the award of a second mobile phone licence to the ESAT Digifone consortium. The inquiry was examining the consortium’s financial position and ownership, what the Department knew about them, and whether any lack of knowledge resulted from intervention or influence by former minister Michael Lowry.
Desmond had acquired a 25% interest in the consortium in September 1995, after the licence competition began. The judgment records that neither the Department nor the evaluation team was notified of the negotiations leading to that change. A letter sent to the Department on 29 September was returned because the evaluation team could not receive new information at that stage. Desmond’s side argued that the letter gave notice of his involvement.
The Glackin Report, published in 1993, concerned earlier business dealings and contained findings critical of Desmond. During the Tribunal’s hearings, counsel referred to the report while questioning witnesses. Desmond challenged the report’s relevance and argued that the lack of advance notice compromised his ability to protect his good name and receive fair procedures.
The Supreme Court agreed with the High Court that the report was relevant to the Tribunal’s inquiry and that its use was not unreasonable or outside the Tribunal’s terms of reference. The court stressed that judicial review was not an appeal on the underlying facts, and that the Tribunal was primarily responsible for interpreting its terms of reference.
On fair procedures, the court said the report was a public document that had been in the public domain for years. Desmond had legal representation, access to daily transcripts, and the ability to attend, cross-examine witnesses, seek their recall and make submissions. The court found no requirement for advance notice of references to the report, and said giving Desmond that preference would treat him differently from others appearing before the Tribunal.
The court also rejected the freedom-of-speech and factual-error grounds. It upheld the High Court’s conclusion that counsel’s references did not justify the relief sought, while expressing concern about some of counsel’s language and saying inquiry counsel should observe good manners towards witnesses. The appeal was dismissed; the court did not determine the truth of the Glackin Report’s findings.