The High Court refused Denis O’Brien’s application to overturn limits on his cross-examination of Professor Michael Andersen before the Tribunal of Inquiry into Payments to Messrs Charles Haughey and Michael Lowry.
In a judgment delivered on 1 February 2011, Mr Justice Hedigan said the Tribunal’s decisions to bar questions about meetings with its legal team and to limit cross-examination time were reasonable in the circumstances. The court refused all the orders sought. It did not decide the underlying allegations of bias or the merits of the inquiry’s findings.
O’Brien had sought judicial review of three rulings made by the Tribunal’s sole member on 2 November 2010. Those rulings prevented his counsel from questioning Andersen about meetings, or notes of meetings, involving the professor or his representatives and the Tribunal’s lawyers. They also allocated O’Brien five hours for cross-examination; he ultimately received six hours after another party gave up an hour.
O’Brien argued that Andersen’s evidence was important to the inquiry’s examination of the 1995 award of Ireland’s second GSM phone licence, and that further questioning could test allegations of bias against Tribunal lawyers. He also said he had not been given notice or a chance to make submissions before the restrictions were imposed. The Tribunal argued that it had to protect the lawyers’ opportunity to respond to allegations affecting their reputations, while avoiding the sole member becoming a judge in his own cause. It also cited the difficulty of securing Andersen’s attendance and the need to conclude the inquiry.
The judge said the authorities did not establish an absolute right to cross-examine every witness. He considered that a right to question a non-accuser could arise in limited circumstances, particularly where a person’s reputation might be harmed, but found no compelling explanation for what further questioning about bias was expected to establish. Andersen’s evidence had been favourable to O’Brien, and he had already described his concerns about bias, the judge said.
Balancing the speculative potential benefit to O’Brien against the fairness and impartiality problems the proposed questioning could create for the Tribunal, the judge found the restrictions reasonable and fair. He also held that the six hours allowed were reasonable given Andersen’s limited availability and the risk that further evidence could delay the final report by up to a year.
The court rejected the Tribunal’s objection that O’Brien had delayed: he applied for leave on 8 November, three days after Andersen finished giving evidence. The refusal of judicial review left the Tribunal’s challenged rulings in place; the judgment did not itself determine the inquiry’s final report.