THE future of the under-fire Moriarty tribunal hangs in the balance and will be decided by an extraordinary High Court challenge issued by businessman Dermot Desmond who has accused it of "fraud".
The Sunday Tribune can reveal that Desmond is seeking a declaration that the tribunal "misled" both the High Court and Supreme Court by making "misleading, untrue and inaccurate" statements in a judicial review taken by Desmond in 2003. Desmond also contends that the statements amounted to "fraud" by the tribunal.
The gravity of the claims made by Desmond against the tribunal in its action is such that if the High Court finds in the businessman's favour, legal sources believe it could not continue in its current form.
The tribunal is expected to strongly contest the claims with legal sources speculating that it may seek to have the case struck out.
Desmond's "general endorsement of claim" – the document which forms the basis of this legal challenge – states that an affidavit sworn on behalf of the tribunal, as part of judicial review proceedings taken by the millionaire businessman in 2003, was "misleading, untrue and inaccurate by reason of the wilful or reckless misstatements therein and the wilful or reckless omissions therefrom".
Desmond is seeking a declaration that the High Court and the Supreme Court were "misled into giving its judgment and order" in the judicial review proceedings "by fraud on the part of the defendant, his servants or agents".
He wants the High Court and Supreme Court judgements nullified and "impeached" and "set aside" on this basis.
The businessman is also seeking a declaration that the High Court and subsequent Supreme Court judgements in this case were "obtained in circumstances where the defendant [the tribunal] was guilty of a fundamental breach of fair procedures".
He is also seeking a new trial on the issues and the costs which were awarded against him from the judicial review proceedings to be returned to him and that the Moriarty tribunal pay his legal costs.
The document is signed by two of the best-known senior counsel in the law library, Gerard Hogan – seen as the leading constitutional expert in the state – and Bill Shipsey.
Legal sources say this is the most strongly worded challenge ever issued to a tribunal of inquiry.
Desmond's case centres on an affidavit sworn on behalf of Judge Moriarty which said the office of the Attorney General did not offer advice on the legality of changes in the make-up of the Esat Digifone consortium before the formal awarding of the second mobile phone licence.