Denis O'Brien has spent, by his own admission, €12m in legal costs associated with the Moriarty tribunal. He says he is prepared to spend even more if that's what it takes to vindicate himself.
Provisional findings issued last November by Justice Michael Moriarty, yet to be published, are believed to be devastating for several parties, particularly for a group of serving and ex-civil servants at the former Department of Transport, Energy and Communications who handled the competition to award a GSM mobile phone licence to O'Brien's Esat consortium in 1996.
But O'Brien says the provisional findings relating to him and the civil servants are entirely wrong and the tribunal itself is out of control, with lawyers claiming exorbitant fees and expenses for frivolities like chocolate bars, while people who feel wronged by the tribunal have no effective means to get it to change the way it treats parties before it.
He claims the final bill for the Moriarty tribunal could be as high as €200m. Now O'Brien says it's up to Justice Michael Moriarty to accept that, after years studying the awarding of the licence, he needs to justify the money and effort expended by the tribunal.
For years, O'Brien has defended his actions over the awarding of the licence in 1996. But since 18 November of last year, the battles in tribunal-land have taken on a new intensity for him and others.
On 18 November, the provisional findings were sent to legal offices all over the country. The findings are described by many of the parties affected as "devastating".
In particular, the findings are believed to assert that the former Minister for Transport, Energy and Communications, Michael Lowry, conferred benefits on Denis O'Brien by agreeing to changes in the make-up of the Esat consortium, which saw Dermot Desmond's IIU company joining the consortium some months after the original composition of the group was agreed.
It is understood the tribunal's provisional findings devote considerable space to the role of the Department of Transport, Energy and Communications in allowing this change in the share composition of the Esat consortium, saying it was at fault in granting a licence to what was in effect a "new" group.
These provisional findings have not been published and newspapers have been prevented from publishing them. But since the findings have been issued, things have become a lot more complicated for all parties.
Legal advice provided back in 1996 by senior counsel Richard Nesbitt about Desmond's entry into the Esat consortium has surfaced since the findings were sent out. Denis O'Brien believes this is the most crucial evidence put before the tribunal for years.
Nesbitt's advice, given in written and then oral form, said the licence could be awarded to the Esat Digifone consortium. He said the licence could be awarded regardless of the fact that Dermot Desmond had joined the consortium at a later date. It was legally acceptable, Nesbitt advised.
This legal advice had not been disclosed earlier because the department itself held legal privilege over it. But this year the chief state solicitor's office has said the Nesbitt advice needs to be disclosed because of the "adverse provisional findings" made against a group of ex- and serving civil servants from the department.
Sitting down for an interview this weekend in Dublin, Denis O'Brien made it clear that he and his legal team have decided to attack each and every one of the provisional findings.
A: It is a complete waste of money. It's a squandering of resources. The daily costs of this tribunal are massive when you've one of the tribunal lawyers billing for 308 days at €2,500 a day; you've got two junior counsels doing a projectionist's job, which really is a minimum wage job; you've got people putting in expenses left, right and centre. There are six tribunal lawyers down there, senior and junior counsel. The whole thing is out of control.
A: Of course we have, and we were shouted down. Not alone does the judge not allow anybody to question, in tandem with Judge Moriarty shouting us down, we have John Coughlan [a tribunal lawyer] shouting us down. So you can see that this thing is out of control, completely. The fact that he [Justice Moriarty] is accusing the civil servants of corruption just shows to me basically that he wants to damn everyone to justify the fact that he's sat up there since 1997. He has only produced one report since 1997.
A: The chocolates thing is purely symbolic. It's a culture of squander. You've got people who've gone up there and given evidence for eight years. They've had to have legal representation; they have to pay that out of their own resources. You are fighting a tribunal team that are paid monthly.
My legal bills are €12m so far, cash out. I'm in a position, fortunately, to hire people to defend me, but you've a lot of people up there who are trying to meet the costs of their solicitors and barristers out of their own resources – limited resources at that.
And meanwhile you have this expensive legal team for the tribunal getting paid every month.
One of them was a compensation lawyer – personal injuries – and another was a medical negligence lawyer. They have no idea of business at all. They are allowing people who don't understand how business is conducted, how competitions are run, how deals are negotiated and they are saying 'shock horror, we can't believe this'. They are not inquisitorial; everything is allegations, basically. Opening statements are wild, just to get headlines.
A: They are trying to find a smoking gun. They have accused the civil service of corrupting, and the licence being issued illegally. This goes to the heart of what Persona and Comcast [both were losing consortia] are alleging.
A: This is unprecedented in the history of the state. Never have civil servants been accused like this.
The Department of Communications left the civil servants naked. They had a legal team but they didn't use them.
Nobody objected to the treatment of these civil servants. It's outrageous.
A: It's all going wrong. Either Moriarty has the courage of his convictions to say 'there is no smoking gun here, this is all wrong, we've got it wrong, we are not going to damn anybody, okay, even though we might get slagged off for spending all this time on it'. That would be the courageous thing to do, but actually I don't think he'll do that.
A: That all started in 1996 when the attorney general asked for a legal opinion whether the department had the legal right to issue the licence to the Esat consortium.
The consortium had brought in Dermot Desmond instead of the four institutions; the advice was about whether this was legal. Nesbitt said, in his opinion, he said do so 'without any haste', there is absolutely no problem whatsoever. He gave it the green light. But this prompted John Coughlan to accuse Nesbitt of being a liar, in the box. For a senior counsel to attack another senior counsel and call him a liar, that is not inquisitorial, that is... adversarial.
A: Nesbitt gave the opinion. Four attorneys general agreed with the opinion, so the matter was dealt with. So Moriarty is now questioning four attorneys general in a row, and saying, 'no they're wrong and I'm right'.
A: Nobody seems to be able to answer that question. We've repeatedly said who was the person who claimed the privilege on this document. They [the tribunal] inadvertently sent this to us about five years and then they went into a scramble to say we should not have sent this to you, and you can't use it or copy it. They should have showed it to us.
A: Well, they said I never had the money. That is a pretty serious one. They say I lied in my bid, that I gave false evidence, I misled people. I couldn't believe it when I saw it. That's why we are fighting it all the way. It was way worse than I would have ever have thought. This is a fight to the end. Their findings against the civil service are just bonkers.
A: I believe it's probably €200m at present. Their current figure is about €36m, but that's only the legal team themselves. Everyone else has to put in their legal bills yet.
Every time I take a judicial review they say 'hands off'.
It's unheard of. I mean, it's Burma.