TRIBUNAL OF INQUIRY

INTO PAYMENTS TO MESSRS CHARLES HAUGHEY AND MICHAEL LOWRY

APPOINTED BY INSTRUMENT OF THE TAOISEACH

DATED 26 SEPTEMBER 1997

PURSUANT TO

TRIBUNALS OF INQUIRY (EVIDENCE) ACTS, 1921 AND 1979

OUTLINE WRITTEN SUBMISSIONS ON BEHALF OF DENIS O’BRIEN

12 September 2005

WILLIAM FRY
Solicitors
Fitzwilton House
Wilton Place
Dublin 2

012350.0057.OOS/TPR
 TABLE OF CONTENTS

EXECUTIVE SUMMARY..... 3

1. PRELIMINARY 6

2. MR. O’ BRIEN’S ENTITLEMENT TO DEFEND HIS GOOD NAME. 8

3. THE TRIBUNAL’S INQUIRY INTO THE EVALUATION PROCESS.... 10

4. THE TRIBUNAL’S INQUIRY AND ITS TERMS OF REFERENCE. 15

5. AMI REPORT....... 17

6. PROCURING THE EVIDENCE OF MICHAEL ANDERSEN.. 25

7. PROCURING THE EVIDENCE OF OTHER AMI WITNESSES 31

8. ATTENDANCE AT PUBLIC HEARINGS / CROSS-EXAMINATION 35

9. WHAT IS THE EFFECT ON THE TRIBUNAL? 39

10. WHAT IS THE EFFECT ON MR O’BRIEN? 41

11. THE DELAY OF THE TRIBUNAL... 45

12. CONCLUSION 47

SCHEDULE 1....

SCHEDULE II...
Executive Summary

The Tribunal’s public sittings into the second mobile phone licence have been proceeding for
almost three years. During the course of this inquiry the Tribunal has called and heard
evidence from 62 witnesses over 130 days’ of public hearing, including the evidence of Mr.
O’Brien and the evidence of witnesses from the Department of Telecommunications, Energy
and Communications (as it was then), the Department of Finance and the European
Commission. Witnesses from the Irish Government Departments have answered, insofar as
they could, the questions that the Tribunal posed in respect of the evaluation methodology that
was formulated and managed by Michael Andersen and other consultants from Andersen
Management International (“AMI”). None of the evidence given by any of these witnesses
revealed any wrongdoing in the evaluation process. Consequently, Mr. O’Brien submits that
at this stage the Tribunal is in a position where it has no evidence that there was any
wrongdoing in respect of the competition for the second GSM phone licence.

The second GSM licence was awarded to East Digifone Limited following an evaluation
process that was devised and conducted by AMI who were retained to provide the necessary
expert assistance to the Irish Government. As such, Michael Andersen and his AMI team are
undoubtedly the central players in any investigation into this evaluation process.

The Tribunal finds itself in a position where Michael Andersen is willing but unavailable to
give evidence. The Tribunal has now permitted parties to make submissions premised on his
unavailability. A summary of Mr. O’Brien’s submissions are set out hereunder:

i. Since no evidence of any wrongdoing in respect of the competition for the second GSM
phone licence has been heard to date, the Tribunal should recognise and accept that its
inquiries have alleviated any public concern that may have existed about the award of
the second mobile phone licence and should state publicly that it does not propose to
proceed any further since it is satisfied that no wrongdoing existed. Such a decision by
the Tribunal would mean there would be no necessity to hear any evidence from
Michael Andersen or from any other individual;

ii. Should the Tribunal believe that it is entitled to proceed with further inquiries into the
GSM module (notwithstanding the absence of any evidence of wrongdoing) the
 Tribunal needs to consider whether it is in fact acting within its Terms of Reference.
Paragraph (g) of its Terms of Reference require it to inquire into whether Mr. Lowry
made any decision, whilst holding ministerial office, to confer a benefit on a person who
had paid him money. The evidence of Michael Andersen/AMI is sought by the Tribunal
for the purpose of inquiring into the evaluation process. There is no evidence of any
interference by Mr. Lowry in this process and, consequently, this part of the Tribunal’s
inquiry is not justified. Mr. O’Brien submits that in the absence of any evidence of
interference by Mr. Lowry, the Tribunal should not continue on a fishing expedition for
the purpose of auditing the second mobile phone competition. That was not what the
Oireachtas asked it to do. The Tribunal would only be entitled to do so if there was
evidence of interference in the evaluation process by Michael Lowry in response to
payments he may have received;

iii. Mr. O’Brien submits that the Tribunal has breached his constitutional entitlement to fair
procedures in the manner in which it has inquired into the evaluation process and the
competition for the second mobile phone licence. The Tribunal has stated in a letter to
AMI’s Solicitors dated 26 March 2003 that it believes AMI’s evaluation process was
“fundamentally flawed”. It also indicated that it believed it was in a position to report
such a finding. Its belief that the evaluation process was fundamentally flawed has been
derived from “expert assistance” that the Tribunal has obtained, principally from Mr.
Peter Bacon. Mr. O’Brien has only recently been furnished with these reports of Mr.
Bacon. The existence of these reports was not made known by the Tribunal, nor were
they made available to any of the represented parties or to any of the witnesses during
the evidence heard to date. These reports have never been introduced into evidence and
Mr. Bacon has not been available for cross-examination. Mr. O’Brien submits that the
procedure whereby the Tribunal seeks to undermine the evaluation report of AMI, in the
absence of any evidence, is a fundamental breach of fair procedures;

iv. Mr. O’Brien submits that the failure of the Tribunal to procure the evidence of Mr.
Andersen through the Danish Court system is unreasonable in that it is irrational. Legal
opinions have been obtained by both the Tribunal and the Government revealing that his
evidence could be sought through the Danish Court system. The Government
recommended that the Tribunal seek his evidence in this manner. No valid explanation
has been furnished by the Tribunal as to why it did not pursue its initial plan to seek his
 evidence in Denmark. Mr. O’Brien submits that the failure of the Tribunal to take any
steps to procure his evidence (particularly during the past two years) is a breach of Mr.
O’Brien’s entitlement to fair procedures. Its failure to initiate such a process is
inexplicable considering the general acceptance that Mr. Andersen’s evidence is crucial;

v. Mr. O’Brien submits that the failure of the Tribunal to procure the evidence of the other
AMI witnesses is also unreasonable and irrational. The Tribunal has previously stated
that it intends to secure the assistance of “other AMI specialist consultants as witnesses
to the Tribunal” but it appears that no steps have been taken in recent times, if indeed at
all, to procure any of the other crucial witnesses. Mr. O’Brien submits that the failure of
the Tribunal to make any real effort to secure the evidence of the other AMI specialist
consultants who were involved in the GSM process (namely Michael Thrane, Jon Bruel,
Ole Feddersen, Marius Jacobsen, Tage Iversen and Mikel Vinter) is a breach of Mr.
O’Brien’s entitlement to fair procedures. Mr. O’Brien also submits that the failure by
the Tribunal to secure the 300 or so documents relating to GSM II which are in the
possession of AMI is also a breach of his entitlement to fair procedures.

vi. Mr. O’Brien submits that the delay of the Tribunal in concluding its inquiry and/or
continuing with its inquiry has breached his constitutional rights. The inquiry into the
second mobile phone licence involving Mr. O’Brien has now been proceeding for three
years and no public sittings on the GSM module have taken place since April 2004. No
explanation has been furnished for this delay and the effect of the delay is that Mr.
O’Brien’s cross-examination of Tony Boyle, a representative of Persona, which plays a
central role in the second GSM competition and the genesis of the allegations in respect
of same, has been delayed by over one and a half years. To delay cross-examination by
this length is effectively to deny proper cross-examination to Mr. O’Brien. No
explanation has ever been furnished by the Tribunal as to why it has postponed the
cross-examination of Tony Boyle for a year and a half. It is submitted that the effect of
this delay has been to deny Mr. O’Brien an adequate cross-examination of Tony Boyle
and is a breach of his constitutional rights;

vii. Mr. O’Brien submits that the Tribunal is obliged to inform him at this stage what
procedures it intends to follow in order to afford him his In Re Haughey rights. No
allegations have been made against Mr. O’Brien. If a report containing adverse findings
 of Mr. O’Brien is to be generated, he must be given an advance opportunity to rebut the
findings in that report. Mr. O’Brien submits that the Tribunal is obliged to inform him
of the procedures it intends to follow so that he is aware of when he can avail of his In
Re Haughey Rights. The failure of the Tribunal to advise him of its procedures is a
breach of fair procedures;

viii. In the alternative, Mr. O’Brien submits that the Tribunal should revert to the
Oireachtas to inform it that an indemnity for Mr. Andersen/AMI has not been provided
by the Government and that its inquiry into the second GSM module cannot be
concluded or completed fairly without the evidence of Mr. Andersen/AMI. The
Oireachtas could vote through the grant of the indemnity sought.

1. 1. Preliminary

The Tribunal will no doubt be aware that Mr O’Brien has repeatedly emphasised, both though
his Counsel at public hearings and in correspondence with the Tribunal, that he regards the
evidence of Mr. Michael Andersen and the other specialist consultants from AMI as being
essential in order to vindicate his reputation and the integrity of the awarding of the second
mobile phone licence to Esat Digifone Limited. The importance of Mr Andersen and his AMI
team has been recognised on numerous occasions by the Tribunal and it was always envisaged
that ultimately their evidence would be given in public.

By letter dated 16 June 2005, the Tribunal informed Mr O’Brien’s Solicitors that
Mr Andersen would not be available to give evidence before the Tribunal. By further letter
dated 27 July 2005 the Tribunal stated:-

“The non-availability of Mr Andersen is not something, in the Tribunal’s view, that

would preclude it from proceeding with its inquiries.”

Notwithstanding the expression of this view, the Tribunal stated in a letter dated 25 August
2005 that:-
 “…..the Tribunal has reached no final conclusion concerning the consequences of
Mr Andersen’s non-availability and is awaiting the submissions of all persons
affected by the Tribunal’s enquiries (and not merely your client’s submission) before
proceeding to a determination on the matter. Subject to the foregoing, the Tribunal’s
provisional view is as stated, namely, that while Mr Andersen is an important witness
whose evidence would be of considerable assistance to the Tribunal (as is apparent
from the Tribunal’s endeavours to secure his assistance over a protracted period), it
does not consider that his evidence is so crucial so as to preclude the Tribunal from
making findings of fact pursuant to paragraph (g) of its Terms of Reference”.

Paragraph (g) of the Terms of Reference requires the Tribunal to inquire urgently into and
report to the Clerk of the Dáil on the following definite matter of urgent public importance:-

“Whether Mr Lowry did any act or made any decision in the course of any
Ministerial office held by him to confer any benefit on any person making a payment
referred to in paragraph (e) or any person who was the source of any money referred
to in paragraph (f) or any other person in return for such payments being made or
procured or directed, any other person to do such act or make such decision.”

It is apparent from a letter from the Tribunal to AMI’s solicitor dated 26 March 2003 and from
a letter from the Tribunal to Mr. O’Brien’s Solicitors dated 16 June 2005 that the Tribunal has
a “provisional view” in respect of the competition process and that it can report on this in the
absence of hearing the crucial evidence of Mr Andersen and his AMI team.

Mr O’Brien is extremely concerned that the Tribunal, in advance of hearing submissions on

the matter, has reached a view, provisional or otherwise, that it can proceed to make findings
of fact in respect of the GSM II competition in the absence of the evidence of Michael
Andersen and his AMI team It is Mr O’Brien’s submission that the extensive public inquiry
already conducted into the second GSM licence reveals that there was no interference with or
corruption of the competition process. Consequently, the GSM module should now be
terminated. The evidence of Mr. Andersen would accordingly not be necessary since there is
no evidence of any wrongdoing. The inquiry to date into the second GSM module has
alleviated public concern through demonstrating that there was no interference with the
process. It is submitted that it is inappropriate for the Tribunal to persist in a fishing
expedition for the purpose of seeing whether it can find any fault in the competition process.

Mr. O’Brien sets out hereunder a series of submissions as to what steps he believes should
now be taken in light of the unavailability of Mr. Andersen. All of these submissions,
however, are secondary to the primary submission that this inquiry into the second GSM
should now be wound up and the Tribunal should report that there was no evidence of any
interference in the competition for, and award of, the second GSM phone licence.

Mr. O’Brien submits, however, that before making his submissions, the Tribunal should
outline the procedure it intends to follow in considering these submissions. If it is the case
that affected parties and Counsel for the Tribunal will make submissions to the Sole Member,
it is imperative that some element of fairness be introduced so that the Tribunal does not end
up adjudicating on its own submissions. Mr. O’Brien submits that the submissions herein and
the application set forth in the concluding part of these submissions should be considered
solely by the Chairman and should be the subject of a separate and detailed ruling.

2. 2. Mr. O’ Brien’s entitlement to defend his good name

It is important to place the application in respect of Mr. Andersen and his AMI team in
context. Prior to commencing its public hearings into the second GSM module, the Tribunal
engaged in a preliminary inquiry to determine whether sufficient evidence existed warranting
a full public inquiry into the second GSM licence award. Mr O’Brien submits that at the end
of this preliminary inquiry the appropriate step for the Tribunal would have been for it to set
forth the allegations derived from this preliminary inquiry and the evidence it proposed to
adduce in support of these allegations. This has never been done. Consequently, the inquiry
into the second GSM module has been conducted to a large extent “in the dark” without the
affected parties, particularly Mr O’Brien, knowing what specific allegations were being made
and without specifying what evidence the Tribunal proposed to call supporting any such
allegations.

In addition to this, the Tribunal has consistently asserted both in public and in correspondence
that it is not making any allegations in respect of the awarding of the licence to Esat
Digifone. Further, the Sole Member stated on 23 January 2003 (Day 172) that no evidence
had been adduced indicating that there had been any wrongdoing on the part of Michael
Lowry in the award of the second GSM licence.

“Mr. McGonigal : Arising from Mr. Healy has just said, may I inquire, as part of the
Tribunal’s case, are they suggesting that Mr. Lowry in some way had an improper
relationship or acted improperly within the subcommittee meetings and the process
which is now being described? Because if he is not, then I don’t understand the
relevance of a lot of this questioning.

Chairman: Well, nothing of that sort, Mr. McGonigal, as I understand it, is remotely
being suggested. The facts are merely being inquired into. And as matters now stand,
all I understand is being tested by Mr. Healy is his inquiry of Mr. Brennan as to views
or rulings that were taken at different stages of the successive presentations; could it be
that this may have had some degree of influence on the eventual outcome of the
competition?”

Mr. McGonigal: But not as a result of anything which Mr. Lowry did, if I understand
him correctly; am I right in that?

Chairman: There is no suggestion of that from evidence that’s been made available to
the Tribunal to date, Mr. McGonigal” (emphasis added)

Mr O’Brien submits that after almost three full years of public inquiry into the awarding of
the licence, he is entitled to be informed of the allegations being made against him by the
Tribunal. Repeatedly, the Tribunal has said it is not making allegations and is primarily a fact
finding body. This defies the reality of the Tribunal’s actions over the past three years. On
foot of its preliminary inquiry, the Tribunal determined that there was sufficient evidence
justifying it proceeding to public hearings in respect of the award of the second GSM phone
licence. Mr. O’Brien submits that at that stage the Tribunal should have set forth the
allegations which it believed could justifiably be made on foot of its preliminary inquiry.
With the benefit of those allegations, Mr. O’Brien would be best placed to defend himself
against these allegations through cross-examination. What has in fact happened, however, is
that the Tribunal at no stage has set forth the allegations and, consequently, Mr. O’Brien’s
legal advisors have had to decipher from the Tribunal’s opening statements and from its line
of questioning of witnesses those allegations that may or may not exist.

If the Tribunal intends to produce a report that reflects negatively on Mr. O’Brien, he has an
entitlement to have the allegations of wrongdoing put to him so that he can adequately defend
himself. The Tribunal has not indicated when it proposes to afford these fundamental rights
to Mr. O’Brien. This matter needs to be clarified urgently. Indeed Mr O’Brien has sought
such clarification for some considerable time. It is submitted that the failure of the Tribunal
to outline the procedures it proposes to follow in respect of any adverse findings against an
individual is a breach of fair procedures. The unfairness of this procedure is evident from the
fact that Mr. O’Brien currently has to cross-examine witnesses in the dark. Should
provisional adverse findings be made against Mr. O’Brien in a draft Report, the Tribunal
should be aware that he will be entitled to cross-examine all those individuals whose evidence
formed the basis for the provisional adverse findings. The failure of the Tribunal to outline its
allegations means that the Tribunal will most probably be faced with the farcical situation that
any evidence supporting adverse findings against Mr. O’Brien or other witnesses will be
subjected to lengthy further cross-examination.

Mr O’Brien is entitled to know at this stage the procedure that the Tribunal intends to follow
in order that he can exercise his In Re Haughey rights. For instance, is it proposed that at the
conclusion of oral hearings the Tribunal will prepare a provisional list of findings that affect
Mr O’Brien’s good name so that these can be considered and challenged on the basis of his
constitutional right to his good name? It is imperative that this issue is clarified at this stage
rather than the parties involved in this Tribunal continuing to operate in the dark.

3. 3. The Tribunal’s Inquiry into the Evaluation Process.

Should the Tribunal refuse to terminate its inquiry into the GSM module, it should take all
necessary steps to procure the evidence of Mr. Andersen and/or the other specialists
consultants from AMI. In the course of the sensationally presented Opening Statement into
the GSM module, Counsel for the Tribunal outlined the issues that the Tribunal intended to
inquire into in the GSM module. This revealed that the Tribunal intended to examine in detail
the evaluation model and process, together with the result of the evaluation. This result
enabled Esat Digifone to be awarded negotiating rights in relation to the grant of the licence.
Mr Andersen and his AMI team played a pivotal role in the evaluation process and the
eventual result. Details of the role played by Mr Andersen and his AMI team in this process
are set out at Schedule I to this submission.

The importance of Mr Andersen and his AMI team to the evaluation process and to the result
thereof has been recognised by the Tribunal on a number of occasions. On 19 June 2001, the
Tribunal first wrote to AMI and stated, inter alia, as follows:-

“The Tribunal apprehends that you may be able to provide it with assistance in
connection with its inquiries concerning the second Irish GSM Licence (1995/1996)
and, in particular in connection with the setting up of and the conduct of the
competition to evaluate the bids for the licence.

On 7 February 2002, Michael Andersen and Michael Thrane held their first private meeting
with the Tribunal. Following this meeting, the Tribunal wrote to AMI’s solicitors on 12
February 2002 and stated, inter alia, as follows:-

“I wish to thank you and your clients on behalf of the Sole Member, for attending the
meeting at Dublin Castle on Thursday last which the Tribunal found to be highly
informative and of considerable assistance”. (emphasis added)

On 10 April 2002, in a letter to AMI’s Irish Solicitors, the Tribunal stated as follows:-

“In particular, it appears to the Tribunal from a detailed consideration of the

documentation to hand and from the replies to its inquiries received from civil servants
and others involved in the evaluation process that it may not be possible to divine from
this documentation alone how the final evaluation result was arrived at.

As you will appreciate, a clear understanding of this process (the GSM II) is central to
the Tribunal’s inquiries, and the Tribunal believes that the most effective and
expeditious way of arriving at that understanding is now to meet with your client
together with Mr Towey and Mr Brennan in order to help the Tribunal with these
issues”.
On 20 November 2002, in a letter to AMI’s Danish solicitors, the Tribunal stated, inter alia, as
follows:-

“In requesting the assistance of your client the Tribunal is not seeking to substitute your
client for AMI but rather to rely on his own personal involvement in the process and it
is his personal ability to respond to queries concerning the process and documentation
in the possession of the Tribunal that is of value.” (emphasis added)

On 30 November 2002, in a letter to Michael Andersen’s Danish Solicitors, the Tribunal

stated, inter alia, as follows:

“You will be aware that Mr. Andersen is an extremely important witness to enable the
Tribunal to examine aspects of the evaluation process and in particular the treatment of
financial aspects of the various applications”

Evidence given during the course of the public sittings to date in the GSM module has served
to emphasise (if such were necessary) the vital role played by Michael Andersen and his AMI
team in the GSM II process. For instance, Mr Martin Brennan, the Chairman of the
Departmental team charged with the responsibility for the awarding of the GSM licence stated
as follows on Day 173 (24 February 2003).

“… I have a sense in which the Tribunal is now trying to get me to fill the gaps caused
by the fact that Michael Andersen seems not to be available, and that’s putting me in a
difficult situation because I don’t have access to the records.”

Mr Brennan went on to state:-

Q. “…it indicates that at that meeting, a significant amount of work was going to be
done on market development, tariffs, roaming, marketing aspect, financial aspect,
management dimension, and management aspect. Do I understand that you were
a member of most of the sub-groups dealing with those items? I think Mr. Fintan
Towey is a member of all of them, I think.
 A. I don’t know whether I was or not. I sat in on most of them. The financial I
probably didn’t sit in on, but I couldn’t say that for sure, I mean. This was another
case where if Andersens had records, it would help.

But even if I sat in, I don’t think I was in a leadership position because of my
Chairmanship of the Project Group, in the sense that different people had probed
different matters in detail. I think, for example, it may have been obvious from the
presentation meetings that the role of Maev Nic Lochlainn was to focus on certain
aspects of applications, and she would have led for us when those came up for
discussion in Copenhagen. And my recollection is that in all cases, the driver of
the discussion was first based on the views of the consultants.

On the issue of the quantitative evaluation (an issue which appears to be central to the
Tribunal’s line of inquiry), Mr Brennan stated:

“I am virtually certain that the quantitative evaluation was carried out almost
exclusively by Andersens.”

On Day 180 (6 February 2003) Mr Brennan stated in response to queries being put to him by
Counsel for the Tribunal:

“I mean, we have been around this a few times now. I can’t give you any more
information about it. I do appreciate the difficulty the Tribunal has by not having
access to the consultants at this stage. But as I said once or twice before, I can’t
compensate for that.” (emphasis added)

On Day 228 (25 June 2003), again in response to questioning by Counsel for the Tribunal, Mr
Brennan stated:-

“I must be communicating badly today. I am still trying to get across the message that
in my mind, it would have been impossible to get a result from this competition
respecting the descending order of priority without weighting.
 Now, it may well be that Andersen Management International were of a different
mindset. It may well be that they were focussed on their own original model, which
may have been designed without weighting. I said here before and I am saying now
again, I can’t compensate for the fact that he won’t come and answer. All I can tell you
is that is what I thought at the time, what I was thinking at the time.”

This issue of the absolute centrality of Michael Andersen and his AMI team to the GSM II
process was repeated time and time again by the many witnesses from the Department of
Transport, Energy and Communications and from the Department of Finance who have given
evidence in public. This absolute centrality of Michael Andersen and his AMI team to the
GSM II process has never been contested or questioned by any party, including the Tribunal.

On 14 January 2004, the Tribunal wrote to the Secretary General of the Government in
relation to the evidence of Michael Andersen / AMI. In this letter the Tribunal stated, inter
alia as follows:

“…that he (Michael Andersen) played a very significant role in all aspects of the
competition and especially the evaluation process is not in doubt”.

The Tribunal went on to set out what it viewed as some of the issues arising from the potential
non-availability of Michael Andersen / AMI. It noted that this list of issues was non-
exhaustive.

(1) “It does not appear that the State insisted that Mr. Andersen obtain or put in place
any insurance to cover his role in the second GSM licence.

(2) Mr. Andersen provided services to Comreg (and its predecessor). It would appear
that no insurance was put in place to cover his work with Comreg (or Comreg’s
predecessor).

(3) Mr. Andersen therefore would appear to have been in no different a position to that of
any other civil servant who would of course, absent any impropriety, be entitled to an
indemnity from the State.
(4) The Tribunal anticipates that Mr. Andersen will be able to be of considerable
assistance should he give evidence.

(5) At least one of the witnesses to the Tribunal, Mr. Denis O’Brien, through his counsel,
has indicated that in the event that Mr. Andersen does not give evidence he may wish
to make certain submissions concerning the capacity of the Tribunal to reach any
conclusions in the absence of Mr. Andersen’s evidence.

(6) While the Tribunal believes that it may have the power to put in place certain
arrangements regarding Mr. Andersen’s costs the question of indemnity for Mr.
Andersen and/or Ementor/Merkantildata would appear to be clearly outside the ambit
of the power of this or any Tribunal.

(7) The Public Interest will obviously have to be involved in these discussions in light of
the implications they may have for the cost of the work of the Tribunal and the
capacity of the Tribunal to fulfil its remit.” (emphasis added)

4. 4. The Tribunal’s Inquiry and its Terms of Reference.

At no stage has the Tribunal explained why it is inquiring into the evaluation process and
result of the GSM II competition. The Terms of Reference of the Tribunal require it to inquire
into whether any payments were made to Michael Lowry and, if so, whether any act or
decisions were taken by Mr Lowry on foot of such payments. Mr Lowry was the Minister
responsible for the granting of the second GSM licence to Esat Digifone during the course of
his ministerial tenure. However, there is no evidence (and indeed no allegation has been
made by the Tribunal) that the evaluation process conducted by Mr Andersen and the other
project team members was in any way interfered with by Mr Lowry. Indeed, this appears to
be recognised by the Sole Member in the statement made by him on Day 172.

“Mr. McGonigal: But not as a result of anything which Mr. Lowry did, if I understand
him correctly; am I right in that?
 Chairman: There is no suggestion of that from evidence that’s been made available to
the Tribunal to date, Mr. McGonigal” (emphasis added)”

The Tribunal, having examined the question of alleged payments to Mr Lowry, decided to
inquire into the licence competition without identifying any specific act or decision which it
believed came within the parameters of paragraph (g) of the Terms of Reference. At no stage
has the Tribunal stated that it is looking into the award of the second GSM licence in order to
determine whether the competition for this licence was interfered with as a result of actions
by Mr Lowry. It is for this reason that the Tribunal should state publicly why it is enquiring
into the evaluation process created and managed by AMI.

Even if the evaluation process and result was fundamentally flawed (as it has been described
by the Tribunal), there appears to be no basis for the Tribunal seeking to inquire into this
process unless it can show that those flaws were effected or caused as a result of interference
by Mr Lowry. No such evidence exists or has been presented even though on 1 April 2003
(Day 205), during the course of the evidence of Sean McMahon, Counsel for the Tribunal
made the following statement about the evaluation process:

“All of this should be viewed in circumstances in which, from information made

available by civil servants and from documentation made available by the
Department, it would appear that the Minister intervened in what was supposed to
be a sealed process on a number of occasions. It also appears from information
made available to the Tribunal from other sources, that is to say from participants,
that the Minister had intervened or had access to the process.”

Mr O’Brien submits that in the absence of any evidence indicating that the evaluation process
was interfered with by Mr Lowry, the Tribunal’s inquiry into the evaluation process is outside
its Terms of Reference. The Tribunal should explain why it proposes to continue with the
inquiry into the evaluation process.
5. 5. AMI Report

The evaluation process carried out by AMI is described within the written evaluation report
dated 25 October 1995 drafted by AMI and upon which the result of the GSM II licence
competition was based. The Tribunal’s view of this report was set forth in a number of its
letters and in particular its letter dated 26 March 2003 to Solicitors for AMI.

On 30 November 2002, the Tribunal wrote to Michael Andersen’s Danish Lawyer and stated,
inter alia, as follows:

“…there is a very real potential that negative conclusions could be drawn concerning
Mr. Andersen’s involvement and the involvement in the process. It is only fair to warn
you that there is the risk that this type of conclusion could be drawn in the absence of
the evidence of your client of the evidence of AMI/Merkantildata in connection with
the process”

On 26 March 2003, in a letter to AMI’s Irish Solicitors, the Tribunal stated, inter alia, as
follows:

“The Tribunal has had an opportunity of further examining the AMI report relied on
in the course of the GSM 2 licensing process in Ireland. From the Tribunal’s current
reading of the report, it would appear that much of the analysis is unsatisfactory.
Moreover, the Tribunal has obtained some expert assistance for the purpose of
scrutinising the report and this has confirmed the Tribunal’s tentative view that the
report appears to be flawed in a number of ways and indeed may contain a number
of seriously fundamental flaws.

The Tribunal is anxious that your client, AMI-Merkantile Data should be afforded a
full opportunity of responding to any queries concerning the report and in particular,
in circumstances in which conclusions may be reached which may reflect poorly on
the authors of the report.” (Emphasis added).
It is noteworthy that AMI’s Danish Solicitors wrote to the Tribunal on 12 May 2003 and
pointed out that the Tribunal had failed to identify these alleged “seriously fundamental
flaws”. The Tribunal declined to deal with the issue in its reply.

One week later, on 1 April 2003, (Day 205) during the course of the evidence of Sean
McMahon, Counsel for the Tribunal made an unannounced statement, obviously with the
benefit of the aforesaid “expert assistance”. It was described by Counsel as:

“… a sort of, it's not an Opening Statement, but it's to some extent a statement of the
status of certain aspects of the review being conducted by the Tribunal as of this
moment...”

This statement took up the entire day and Mr. McMahon did not get an opportunity to go into
evidence. The transcript of this supplemental opening statement offered an in-depth analysis
as to the direction taken by the Tribunal in inquiring into the evaluation process. Counsel for
the Tribunal dealt with various critical issues including the evaluation model, the evaluation
process, the development of the qualitative and quantitative criteria (focusing on the
“abandonment” of the latter), the weightings issue etc. The entire days’ transcript is of critical
importance in understanding the direction of the Tribunal inquiries. However a brief summary
can be found beginning at page 8 of the Transcript:

“…Mr. Andersen proposed, and the Evaluation Team, in this case, adopted a multi-
stage evaluation process involving a quantitative and a qualitative evaluation. The
method proposed and formally adopted does not appear to have been followed.

Secondly, the evaluation process involved or envisaged the application of weightings

to a number of criteria listed in the RFP and prioritised in the RFP in accordance
with a Government decision. This is the paragraph 19 listing of criteria. It appears
to be impossible to see for certain what weightings were applied, or indeed, agreed,
and it is far from clear that the agreed weightings were ultimately applied to the
relevant parts of the process.

Thirdly, the finalisation of the report and the presentation of the results involved a
conversion of what appears to have been intended as a graded result expressed in
 letters to one which was expressed in numbers or in numerical terms. There have
been suggestions in the information available to the Tribunal that this numerical
conversion was either inappropriate or that it may have even distorted the result.
While I am on the question of the report, it would appear that the result appears to
have been announced and certainly appears to have been brought to the attention of
the Minister for onward transmission to the subcommittee and the Government prior
to a final report actually having been physically made available.

All of this should be viewed in circumstances in which, from information made

available by civil servants and from documentation made available by the
Department, it would appear that the Minister intervened in what was supposed to
be a sealed process on a number of occasions. It also appears from information
made available to the Tribunal from other sources, that is to say from participants,
that the Minister had intervened or had access to the process.

As we know from documentation made available by the participants, the Tribunal is

also aware that parallel to the progress of the evaluation, there was a course of
events involving the membership of the Esat Digifone consortium and the financing
of the consortium, and in particular, the finances of one member of the consortium,
which were not brought to the attention of the Evaluation Team.

Lastly, and this may be only an incidental point, but it could assume some
significance, the role of Andersen Management itself, and in particular, the role of
Mr. Andersen is far from clear. It is not clear whether Mr. Andersen was a full
member of the Project Team, whether his colleagues were full members of the
Project Team, or whether he or they were merely independent and outside advisers to
the team...”

This statement by Counsel was a presentation by the Tribunal of the result of its private
analysis of the evaluation process. It is now apparent that this presentation was based on the
various “expert reports” that have been furnished to the Tribunal (in particular the report of
Peter Bacon & Associates dated March 2003), but which were not forwarded by the Tribunal
to Mr. O’Brien or to any of the represented parties or witnesses, nor indeed was their attention
even drawn to the existence of such reports.
The Tribunal subsequently cross-examined 16 civil servant witnesses with questions that
clearly sought to undermine and call into question the evaluation process. This was done in
the absence of any public evidence being adduced on the alleged flaws in the process and was
evidently based on the “expert assistance” obtained by the Tribunal in private and which was
never furnished to Mr. O’Brien or to any other represented party or to any witness. This
supplemental Opening Statement when combined with the letter of 26 March 2003 to AMI’s
solicitors indicates that the Tribunal has reached a tentative view on the evaluation process –
namely that it is “fundamentally flawed” – and that this can be reported on in the Final Report,
even though no evidence supporting such a finding has been introduced in public. This is
extraordinary.

Mr O’Brien has only recently become aware that the Tribunal has had in its possession a
series of “expert” reports in relation to the second GSM competition. Most of these were not
brought to the attention of Mr O’Brien and only came into his possession as a result of this
current application in respect of Mr Andersen. A list of these reports and the dates upon
which they were generated and given to Mr O’Brien’s solicitors are set forth below.

Report Date of Report Date of Receipt by

Mr O’Brien
“Economists Report for Persona Digital October 1996 Not provided by
Telephony Limited” by Moore McDowell and Tribunal
Rodney Thom of UCD
“Review of specified elements of the Tender March 2003 1 September 2005
Appraisal Process used in the Award of the
2nd GSM licence” by Peter Bacon &
Associates
“Evidence in response to specific questions January 2005 16 March 2005
arising from a review of the Tender Process
used in the Award of the 2nd GSM licence” by
Peter Bacon & Associates

Michael Andersen/AMI have also submitted a series of reports to the Tribunal in

relation to the second GSM licence. These are as follows:
 Report Date of Report Date of Receipt by
Mr O’Brien
“Confidential Memorandum on Andersen 20 July 2001 Not circulated with
Management International’s involvement in Tribunal’s Books
and some cornerstones of the GSM 2 tender
in Ireland”
“Memorandum on AMI’s experience as the January 2002 25 November 2002
lead consultant in the GSM 2 tender in
Ireland, 1995”
“Memorandum to the Moriarty Tribunal 20 February 2002 25 November 2002
concerning the transparency of Evaluation
Criteria”
“Statement re Minister Lowry’s access to the 20 February 2002 25 November 2002
Evaluation Methodology document”
“AMI’s response to issues raised by the 20 June 2002 25 November 2002
Tribunal”

The Tribunal appears to regard its function as including an audit of the competition and
evaluation process that was managed by Michael Andersen and his AMI team. It is submitted
that this issue is of no relevance unless it can be linked to evidence of interference by Mr.
Lowry in return for payments. There was no such evidence and, consequently, it is submitted
that the Tribunal is acting outside its Terms of Reference.

The Tribunal has never identified the issue as to whether the licence was awarded properly,
whether the competition was carried out properly or whether there was any interference with
the process. In fact, the inquiry into the second GSM module has proceeded on the basis that
the Tribunal inquires into areas, like an audit, for the purpose of determining whether any
inconsistencies or flaws can be deciphered. The central issue in the GSM module of the
Tribunal is whether or not the licence was properly awarded to Esat Digifone Limited. Mr
O’Brien has on endless occasions submitted that Esat Digifone won the competition fairly and
was the best contender. Mr O’Brien believes that Michael Andersen, the AMI team and the
rest of the project team were of a similar view. In fact, Michel Andersen has publicly
acknowledged that Esat Digifone was the best applicant.
 “The quality and consistence of Esat Digifone’s application with regard to the extent
and content of the information provided is among the absolute best that AMI have
seen during the many evaluations that AMI at that time and since then has
participated in.”

Mr Andersen also stated:

“It is also the opinion of AMI that Esat Digifone – objectively and after taking into
consideration the issues of criticism mentioned below – handed in the best
application as against the other applicants according to the evaluation criteria and
their descending order of priority. In AMI’s opinion the evaluation result nominating
Esat Digifone as the winner thus was and is the right result”.

(See page 37 of the Memorandum dated of January 2002 prepared by AMI on the
second GSM evaluation process in Ireland.)

Indeed at a private meeting with the Tribunal on 20 February 2002, Mr Andersen stated that
“he had never seen a bid as well documented as that of Esat Digifone”. He further stated that
the evaluators were very impressed with Esat Digifone’s preparation. He noted that AMI
would categorise bids as being of three categories, (i) off the shelf, (ii) local touch and (iii)
pre-implementation. Mr Andersen confirmed that Esat Digifone’s application was very much
in the latter category.

This crucial evidence, unavailable in the absence of Michael Andersen or any members of the
AMI team, would be of considerable assistance to Mr O’Brien in seeking to establish to the
Sole Member that Esat Digifone’s bid was the best bid and that it properly won the
competition. Unfortunately, it is apparent that the Tribunal is currently of the opinion that
AMI’s evaluation process, which resulted in the competition being won by Esat Digifone,
contained unsatisfactory analysis, confirmed by its private “expert” reports.

The only parties who have ever called into question the work carried out by Michael
Andersen and his AMI team and the winning of the competition process by Esat Digifone
Limited are certain members of losing consortia involved in the GSM II licence competition
and the Tribunal itself. This Government’s satisfaction with the work carried out by Michael
Andersen and his AMI team is evident by the evidence given before the Tribunal to date and
the level of work awarded to AMI subsequent to the GSM II competition, full details of which
can be found at Schedule I. AMI were retained by the Irish Government to handle the
competition leading to the award of the third mobile phone licence. AMI were also retained
to carry our work in relation to Fixed Wireless Public Mobile Access (FWPMA) and other
miscellaneous regulatory issues. It should be noted that almost all of this work was awarded
some considerable time after Michael Lowry ceased to a Government Minister. Indeed,
AMI’s expertise and the work carried our by them on behalf of the Irish Government was
fully vindicated by the Supreme Court in the Orange case.

Mr O’Brien submits that he has been placed in an unfair position and that his right to fair
procedures have been breached. This unfairness is evident from the following:-

(i) (i) The “experts” who have criticised the AMI report, which criticism has been
unconditionally accepted by the Tribunal, have not given their evidence in public
and have not been made available for cross examination. Mr O’Brien was only
furnished with the principal report of Peter Bacon & Associates on 1 September
2005 as a result of specifically seeking these reports from the Tribunal. Mr
O’Brien is also aware (although not from materials provided by the Tribunal) that
the line of questioning of the Civil servants on the evaluation process appears to
have been derived, at least in part, from a report prepared for Persona and which
has been in the possession of the Tribunal for some considerable time;

(ii) (ii) The Tribunal has not had the opportunity of hearing the evidence of Michael
Andersen or other members of the AMI team who could confirm the assessment
of the evaluation process that they provided to the Tribunal in January 2002:-

“In general and based upon the information that then was and today is
available to AMI, it is the opinion of AMI that for the part of the tender
process that AMI was involved in, the process was – in the main – carried
out in a professional and correct manner.”

(iii) (iii) Although the Tribunal is prepared to seek expert assistance resulting in
criticism, it did not furnish Mr O’Brien with these reports so that he had the
 opportunity to challenge these hidden views. It is worth noting that the bid
submitted by Esat Digifone had previously been independently and rigorously
assessed by one of the world’s leading independent consultancy firms, PA
Consulting (London) before being submitted. This independent this assessment
recognised the excellence and quality of the Esat Digifone bid.
(iv)
(v) Mr O’Brien’s solicitors only received the principal report prepared by Peter
Bacon on 1 September 2005 (as part of this application) although it had been
prepared in March 2003. Conversely, a second Bacon Report dated January
2005 was given to Mr O’Brien’s solicitors on 16 March 2005. The status of
these reports has never been clarified or explained and the confusion as to
their purpose is evident in the Tribunal’s letter to Mr O’Brien’s solicitors
enclosing the second report prepared by Peter Bacon:

“Please find enclosed copy of a Report obtained by the Tribunal from

Messrs Peter Bacon & Associates. The Tribunal has not as yet conclusively
determined whether to adduce the contents of this Report in evidence but in
the first instance I would be much obliged for your client’s comments, if any,
on the Report.”.

Mr O’Brien is faced with the appalling prospect that the Tribunal believes that it can report
that the evaluation process was fundamentally flawed based on expert assistance not tested in
public hearing. Furthermore, Mr O’Brien is faced with the more appalling prospect that a
Tribunal established to inquire into payments to Mr Lowry could reach a conclusion that the
evaluation process, conducted whilst Mr Lowry was Minister, was fundamentally flawed.
Even if one accepted that the evaluation process was fundamentally flawed (which is denied),
there is absolutely no evidence that these flaws were deliberate or were created for the
purpose of awarding the licence to Esat Digifone as a result of interference by Mr Lowry.
Any reader of such a Report would necessarily conclude, however, that the fundamental flaws
were in some respect linked to payments to Mr Lowry. Mr O’Brien submits that no public
report should issue on the matter without hearing evidence from Michael Andersen and his
AMI team and other experts relevant to the evaluation process.
6. 6. Procuring the Evidence of Michael Andersen

In respect of Michael Andersen, Mr O’Brien submits that the Tribunal should seek to obtain
his evidence through the Danish Court system under the procedure outlined in the opinions of
the Danish lawyer Oluf Engell. This course was strongly recommended to the Tribunal by the
Government in its letter to the Tribunal dated 17 June 2004 where it stated:-

“Dear Mr Heneghan,

I refer to earlier correspondence concerning the proposed indemnity.

The Government has considered the Tribunal’s request. At this point in time the
Government has decided to defer making any decision on whether it will grant an
indemnity and, if so, the terms thereof. It is deferring that decision in light of the
matters referred to below.

As you are aware, when the issue of the grant of indemnity first arose legal advice was
taken by the Government from lawyers in Denmark. The Tribunal of Inquiry has also
taken its own independent legal advice. The effect of the advice to the Government is
that there are procedures, under Danish law, available to the Tribunal to procure –
through the Danish court system – the evidence of Mr Andersen and, presumably, any
other relevant person within the Danish jurisdiction.

While the Government notes the estimate of a potential delay of 2-3 years in court
procedures being finalised, it nonetheless believes that those procedures should be
invoked before any indemnity is granted to a witness intended to be called before the
Tribunal. While it is appreciated that the duration of any court delay, in Denmark, is a
relevant consideration, it is always open to lawyers instructed by the Tribunal to apply
to the Danish courts for an expedited hearing. Whether those courts will grant such a
hearing remains to be seen. But in the absence of commencing such proceedings, one
would never know whether they would accede to that request in the particular
circumstances of the Tribunal and the work that it is conducting at the request of the
Houses of the Oireachtas. The Government is mindful of the extensive nature of the
proposed indemnity. It also has to bear in mind the precedent – in terms of other
 Tribunals – that may arise from granting such an indemnity. The financial exposure of
the state arising from such a contingent liability is also a material consideration.
Bearing all of these factors in mind, the Government has taken the view that it would be
both prudent and appropriate that all available legal procedures be exhausted before it
makes a decision on the grant of an indemnity.

Perhaps you could arrange for your counsel to communicate with counsel for the public
interest, the state of progress of any such court application that is commenced in
Denmark.

Yours faithfully
Dermot McCarthy
Secretary General to the Government” (emphasis added)

The issue of how long the procurement of Mr Andersen’s evidence in Denmark would take
was again raised by the Chief State Solicitor with Danish lawyers in a subsequent letter dated
28 June 2004 which stated as follows:-

“Dear Oluf

The Attorney General has been considering the advices which you have given me and
he has directed me to raised two questions with you. These are:-

Question 1 – How long does it take to get a hearing from the Danish courts? Is it
possible to get an expedited hearing?

Question 2 – What information or facts have to be relied upon by a witness before he

can plead self incrimination or before he can refuse to testify on the grounds advised in
your opinion dated 19 March 2004?

Yours sincerely
David J O’Hagan
Chief State Solicitor”
By reply dated 2 July 2004, the Danish lawyer stated:-

“Dear David J O’Hagan

I refer to your telefax of June 28, 2004.

A request from the Moriarty Tribunal to examine Mr Michael Andersen must be made
through diplomatic channels. A request should be sent to the Irish Embassy in
Copenhagen to be forwarded to the Danish Ministry of Foreign Affairs which will
forward it to the Danish Department of Justice which will forward the request to the
local court where Mr Andersen is domiciled. Based upon information received by the
Danish Ministry of Foreign Affairs, as well as from the Danish Department of Justice, I
expect this process to take approximately one or two months. When the request is
received by the local court where Mr Andersen is domiciled it will depend on the
schedule of that particular court when a hearing can take place. I would expect that a
hearing may be completed within 4-6 months (emphasis added).

In relation to your second question: the Danish Administration of Justice Act provides
not specific rules as to what kind of information or which facts must be presented by the
witness to the court if the witness refuses to give testimony. The court will decide based
on each question and the witness’ objection whether or not the witness may refuse to
answer.

Yours sincerely
Oluf Engell
Julie Arnth Jorgensen”

On 18 June 2004, the Tribunal wrote to Mr Carsten Pals, as lawyer for Mr Andersen, and
stated, inter alia, as follows:-

“…the Tribunal now proposes to consider making an application through the relevant
Danish Ministry for an Order from the Danish Courts compelling your client to testify
before the Danish Courts in relation to his role in the second GSM licensing process.”
In a letter to Mr O’Brien’s Solicitors dated 19 July 2004 the Tribunal stated, inter alia, as
follows:

“Having taken the advice of Danish lawyers, the Tribunal is in the process of applying
to the Danish authorities for an Order compelling Mr. Andersen to make himself
available to be examined in Denmark”.

The Tribunal also wrote to Mr. Carsten Pals on 19 July 2004. In this letter, the Tribunal
stated, inter alia, as follows:

“I refer to previous correspondence in which I mentioned that the Tribunal was

considering making an application to the Danish authorities to compel Mr. Andersen to
give evidence in Denmark.

The Tribunal has instructed Danish lawyers to apply to the Danish authorities for the
appropriate Order. Whilst the process of making an application to the relevant
authorities is in train…”.

The position as set out by the Tribunal in both these letters was in fact at odds with the actual
position that existed at that time. The Tribunal had taken no steps as regards making an
application to the Danish Authorities, nor did it ever take any steps in this regard.

If the Tribunal believes that the Government does not have sufficient authority such that it
should follow its recommendation, it is submitted that the Tribunal should revert to the
Oireachtas to determine whether the Oireachtas, as the creator of the Tribunal, will grant an
indemnity or whether it wishes the Tribunal to proceed to seek the evidence of Mr Andersen
in Denmark, irrespective of the delay that this may cause.

Mr O’Brien submits that the Tribunal, although it has made efforts to obtain the evidence of
Mr Andersen, must invoke this Danish court procedure. It is noteworthy that the Tribunal
appears to have taken steps up to October 2004 to inquire into the Danish Court procedure.
Thereafter it stopped and determined that no application should be brought because it was
likely to be unsuccessful, although to date there is no evidence of such a decision having been
taken by the Sole Member. It should be noted that the Government stated as follows in
concluding its letter to the Tribunal dated 17 June 2004:

“Perhaps you would arrange for your Counsel to communicate with Counsel for the
Public Interest the state of progress of any such court application that is commenced
in Denmark”

The Tribunal has even gone so far as to write its own negative opinion on the matter with
which it has asked the Danish lawyer to agree. In light of the opinions of the Danish lawyer,
the recommendation of Government and the obvious importance of Mr Andersen and his AMI
team, it is simply extraordinary that the Tribunal is refusing to seek his evidence in Denmark.
Again, this raises serious questions about the Tribunal’s bona fides towards Mr O’Brien and
further fuels his fear that the Tribunal simply wishes to conclude this Tribunal with a Report
that condemns the award of the licence, which may also have an input into the question of
costs.

As previously noted, Mr O’Brien has repeatedly emphasised to the Tribunal that he regards
the evidence of Michael Andersen as being absolutely essential in order to vindicate his
reputation and the award of the competition to Esat Digifone. A short history of the repeated
requests made by Mr O’Brien to the Tribunal over the past three years in respect of securing
the evidence of Michael Andersen (and indeed the lack of a response from the Tribunal) is set
forth in Mr O’Brien’s solicitors letter to the Tribunal dated 28 July 2005, attached as
Schedule II to this submission. Furthermore, the first page of Mr O’Brien’s memorandum of
intended evidence dated 11 November 2003 (Day 248) stated on the very first page:-

“The licence was won by Esat Digifone because it was the best applicant and won the
independent competition organised by the Department and supervised by external
consultants. I believe the investigation of the award of the second GSM licence to be
wholly unnecessary and unmerited. The fact that the licence was awarded on foot of a
competition run by an independent and internationally renowned consultant, Michael
Andersen and his AMI team, is of fundamental importance to the investigation being
carried out by this Tribunal. It is important that the Tribunal is aware that Michael
Andersen and his AMI team have been involved in competitions around the world
relating to the award of over 120 mobile phone licences. Michael Andersen has publicly
 acknowledged that Esat Digifone was the best applicant for the licence and the
following quotation of his is illustrative of that belief:

"The quality and consistency of Esat Digifone's application "with regard to the
extent and content of the information provided is among the absolute best that
AMI have seen during the many evaluations that AMI at that time and since
then has participated in. "(at page 37 of the Memorandum on AMI's
experience of the GSM2 tender in Ireland, 1995; prepared by AMI in January
2002)

In order for the Tribunal to be fully aware of how and why Esat Digifone won the
licence, I believe it is imperative that it hear evidence from Mr. Michael Andersen, the
independent consultant who was retained by the Government as lead adviser to the
GSM II project and who was principally responsible for devising and overseeing the
competition. At present, there is complete uncertainty as to whether he will be available
to give evidence to the Tribunal. If he is not so available, I believe there is a serious
and significant risk that both Esat Digifone / myself and the Tribunal will not have the
benefit of invaluable independent evidence from Mr Andersen that will assist in proving
that the award of the second mobile licence to Esat Digifone was both legitimate and
merited. Failure to hear his evidence will raise questions as to the appropriateness and
the ability of this Tribunal to make findings in respect of the award of the second mobile
phone licence. The Tribunal cannot be selective in who they decide to bring to give
evidence to determine issues of fact. The fact that someone is available to give evidence,
it behoves the Tribunal to ensure that he comes to Dublin to give evidence at any cost”.

Mr O’Brien submits that the Tribunal is under a duty to carry out the directions of
Government, which has a majority in the Oireachtas, because:-

(i) The recommendation of the Government that the evidence of Mr Andersen

should be sought in Denmark was made in the public interest;

(ii) The recommendation of Government that the evidence of Mr Andersen should

be procured in Denmark was made in recognition of the right to fair
procedures that parties before the Tribunal have;
 (iii) The Tribunal informed Mr O’Brien’s solicitors on 19 July 2004 that they
were taking steps to procure the evidence of Mr Andersen in Denmark and,
consequently, the Tribunal should stand by what it agreed to do; and

(iv) The Government recognises that Michael Andersen and his AMI team who
devised and conducted the evaluation process must be available to have a
complete and fair inquiry.

7. 7. Procuring the evidence of other AMI Witnesses

The Tribunal appears not to have made any real efforts to procure the attendance of the other
AMI employees who are available to give evidence even though it has indicated that it would
so do. On 10 December 2002 (Day 160) counsel for the Tribunal stated:

“The Tribunal intends to continue its endeavours to secure the assistance of Mr

Andersen and other AMI specialist consultants as witnesses to the Tribunal.”
(emphasis added)

These other individuals, all of whom were intimately involved in the GSM II process, are
Michael Thrane, Jon Bruel, Ole Feddersen, Marius Jacobsen, Tage Iversen and Mikel Vinter.

On 7 August 2001, Solicitors for AMI wrote to the Tribunal and stated, inter alia, as follows:-

“At that meeting we discussed how our client, Andersen Management International
(AMI) and Michael Andersen and his colleagues, in particular Mr Ole Feddersen, of
that firm, could assist the Tribunal with their inquiries.” (emphasis added)

On 20 November 2002 Michael Andersen’s lawyer, Carsten Pals, wrote to the Tribunal
stating:-

“I suggest that the Tribunal requests other persons still with AMI to assist them, (e.g.
the co-project leader or a senior consultant heavily involved in the GSM 2 licensing
 process in Ireland [Michael Thrane]), and/or former AMI employees who have
recently assisted the Tribunal on behalf of AMI and who have participated in
meetings in Dublin during the course of the Tribunal’s work in connection with the
GSM 2 licensing process (an internal AMI solicitor and senior consultant in charge
of the financial evaluation issues including financial track recording).”

The Tribunal replied to Carsten Pals on the date of receipt of his letter, but failed to address
the issue raised regarding other AMI personnel being in a position to give evidence.

By letter dated 3 December 2002 from Carsten Pals to the Tribunal, further information was
given in respect of other AMI employees who could assist the Tribunal:-

“In your recent email, you state explicitly that you are seeking assistance concerning
“… in particular the treatment of financial aspects of various applications”. I have
discussed this type of assistance specifically sought by the Tribunal with my client,
and it appears that my client was not one of the key persons with regard to the
financial aspect of the applications. He has informed me, according to his
recollection, Mr Michael Thrane was introduced as a senior expert of financial
issues before the evaluation commenced, and that Michael Thrane - together with Mr
Jon Bruel – executed both the financial evaluation of the applications and the
supplementary analysis, e.g. on the financial weaknesses of the Esat Digifone
consortium.

Mr Michael Thrane has participated actively in the assistance so far provided to the
Tribunal and he has furthermore participated in a private meeting with the Tribunal
in Dublin. Mr Jon Bruel has continually kept himself informed on the assistance and
AMI’s role, since he was heavily involved in 1995, and since he retained the position
as director of AMI.

I trust that this information is helpful to you, and also extinguishes the underlying
basis for the warning you have conveyed in your recent email concerning absence of
evidence from my client.”

By reply of the same date the Tribunal stated:-

 “I note what you say concerning the involvement of Mr Michael Thrane and Mr Jon
Bruel. The Tribunal will endeavour to contact these gentlemen to see if they are
prepared to make themselves available. However, the Tribunal is satisfied that
having regard to its previous dealings with Mr Andersen and his pivotal overall role
in the competition, he is the person best placed to assist in its inquiries.

Could you please let me have an address for Mr Thrane if known to you or if not you
might kindly point me in the direction of someone who will be able to provide me
with this address.” (emphasis added)

By reply dated 10 December 2002 Carsten Pals provided the Tribunal with the home and
work address of Michael Thrane and again re-emphasised Mr Thrane’s continued involvement
with AMI in his capacity as Associate Consultant. He also provided further information in
respect of personnel remaining in AMI who have first hand knowledge of the evaluation
process:-

“Both Mr Jon Bruel, who continues to act as director of AMI, and Mr Ole
Feddersen, who is senior consultant with AMI, have first hand knowledge of the
events and in particular the event you are addressing.

Finally, also Marius Jacobsen was heavily involved in the GSM 2 licensing project
c.f. inter alia the minutes of the steering group meeting. He is now reachable at 00
45 361 79035.”

It is also apparent from a letter from AMI’s solicitors to the Tribunal dated 18 January 2002
and AMI has in or about 300 documents relating to GSM II in its possession, but.
inexplicably, these do not appear to have been sourced or requested by the Tribunal.

“As an indication in general terms of the other documents held by our client, we
understand that there are just under 300 documents in total and we enclose a copy of
the screen shot of the folders and files as they appear on our client’s computer”
It is unclear what steps, if any, the Tribunal took pursuant to the receipt of this information. It
should also be noted that AMI’s Danish lawyers wrote to the Tribunal in 12 May 2003 and
reiterated AMI’s commitment to assist the Tribunal in any way. They even went so far as to
offer to have the new Managing Director travel to Dublin to meet the Tribunal and review the
question of documents. Again, it does not appear that the Tribunal took any steps pursuant to
this offer.

By further letter dated 12 June 2003, Michael Nielsen, lawyer for AMI, replied to the
Tribunal’s request for Marius Jacobsen’s address and confirmed that AMI had no difficulty in
the Tribunal contacting him.

On 6 August 2003 Carsten Pals wrote to the Tribunal updating it on the arbitration procedure.
He confirmed that he was now also acting for Jon Bruel, whom he described as a former
director of AMI, in the pending arbitration procedure. He also stated:-

“However, as the remaining AMI team members are not part of the arbitration
procedure, they are not subjected to the same constraints, and hopefully the Tribunal
can use their expertise in the meantime.”

On 14 October 2003 Carsten Pals wrote again to the Tribunal and stated, inter alia, as
follows:-

“In the meantime, I have informed Mr Davis that it may be possible to seek assistance
from my client’s former colleagues, of which some have actually assisted the Tribunal
during previous occasions under the current module”.

Mr Pals wrote again to the Tribunal on 22 June 2004 and stated, inter alia, as follows:-

“In the meantime, my client and I wish to reiterate our proposal that you undertake
assistance directly from other AMI consultants, some of these consultants were more
directly involved in the issues currently investigated by the Tribunal than my client
happened to be”.
The Tribunal did not reply to the points raised by Mr Pals in either of his letters of 14 October
2003 or 22 June 2004.

The Tribunal has on numerous occasions recognised the availability and importance of other
relevant witnesses from AMI. It is apparent that many of these witnesses are not looking for
an indemnity and would be available to give evidence in respect of the evaluation process. No
explanation has been furnished as to why the Tribunal will not seek their evidence. Mr
O’Brien submits that the Tribunal should also make efforts to obtain the evidence of these six
other individuals from AMI that were involved in the evaluation process.

8. 8. Attendance at Public Hearings / Cross-examination

Mr Andersen / AMI has previously submitted documentary evidence to the Tribunal and has
also attended at a number of private interviews with the Tribunal. However, this must be
considered in light of the present unavailability to attend public hearings as set out above.

On the 24 September 1998, at paragraph 33, the Sole Member ruled that:

“the findings or the conclusions of the Tribunal will be based only on appropriate
evidence given at its public hearings”.

Again, on 5 November 1998, the Sole Member continued:

“Even without hearing Mr Coughlan or any other parties, Mr Clarke, I must say that
I would instinctively somewhat recoil from a proposition that I would be entitled to
report on matters heard in private without interested parties and the public having a
chance to be present and to challenge that evidence or adduce rebuttal if they see
fit”.

In reply, Mr Frank Clarke on behalf of the public interest sated as follows:

“That would undoubtedly infringe the rules of constitutional justice”.

Mr O’Brien agrees with the above and submits that, in the absence of Mr Andersen or any
person on behalf of Mr Andersen giving evidence to the Tribunal in accordance with the
documents and interviews already supplied or on the basis of any other statement provided, it
would be constitutionally impossible for the Tribunal to have any regard to that material
without it first having been properly adduced in evidence in public. It would also be
impossible to separate matters that have not been put to witnesses.

The law in relation to the constitutional necessity of being able to call rebutting and/or
additional evidence and the danger of relying on hearsay evidence was dealt with in the
Supreme Court decision of Gallagher.-v- The Revenue Commissioners, O’Callaghan and the
Government of Ireland, [1995] I.R. 55 where the Court stated:

“It is clear from this statement that, while Tribunals exercising quasi-judicial
functions, as the second respondent was in this case, are given a certain latitude in
the exercise of their functions and in determining the requirements of natural justice
and fair procedures in the circumstances of the case, they may not act in such a way
as to imperil a fair hearing or a fair result. In the course of his judgment in re
Haughey [1971] I.R. 217 at 264, Ó Dálaigh C.J. stated that:-

‘a person whose conduct is impugned as part of the subject matter of

the inquiry must be afforded reasonable means of defending himself.’

He had earlier in his judgment at p. 263 enumerated these means as being:-

‘(a) that he should be furnished with a copy of the evidence which

reflected on his good name;

(b) that he should be allowed to cross-examine, by counsel, his

accuser or accusers;

(c) that he should be allowed to give rebutting evidence; and

(d) that he should be permitted to address, again by counsel, the

Committee in his own defence…
In Kiely –v- Minister for Social Welfare [1977] I.R. 267 Mr Justice Henchy had
indicated that in certain circumstances, a Tribunal could act on hearsay evidence but not
when it would imperil a fair hearing or result. He stated at P. 281:

‘Of one thing I feel certain, that natural justice is not observed if the scales of justice
are tilted against one side all through the proceedings. Audi alteram partem means
that both sides must be fairly heard. That is not done if one party is allowed to send
in his evidence in writing, free from the truth-eliciting processes of a confrontation
which are inherent in an oral hearing, while his opponent is compelled to run the
gauntlet of oral examination and cross-examination. The dispensation of justice, in
order to achieve its ends, must be even-handed in form as well as in content …
Where essential facts are in controversy, a hearing which is required to be oral and
confrontational for one side but which is allowed to be based on written and,
therefore, effectively unquestionable evidence on the other side has neither the
semblance nor the substance of a fair hearing. It is contrary to natural justice.”

Hamilton C.J. at Page 79 went on to quote Barron J. in Flanagan .v. University College
Dublin [1988] I.R. 724 at Page 730,

“Once a lay Tribunal is required to act judicially, the procedures to be adopted by it

must be reasonable having regard to this requirement and to the consequences for
the person concerned in the event of an adverse decision. Accordingly, procedures
which might afford a sufficient protection to the person concerned in one case, and
so be acceptable, might not be acceptable in a more serious case”

Hamilton C.J. at Page 80:

“...the action of the second respondent in failing to require direct evidence of the
valuation of such vehicles, thereby depriving the Applicant of the opportunity of
challenging such evidence in cross-examination, amounted, in the particular
circumstances of this case, to a deprivation of his right to fair procedures.”
In Borges –v- The Medical Council (2004) 2 I.L.R.M. 81, Chief Justice Keane stated as
follows at Page 90:

“It is beyond argument that, where a Tribunal such as the Committee is inquiring
into an allegation of conduct which reflects on a person’s good name or reputation,
basic fairness of procedure requires that he or she should be allowed to cross-
examine, by counsel, his accuser or accusers, That has been the law since the
decision of this court In Re Haughey and the importance of observing that
requirement is manifestly all the greater where, as here, the consequence of the
Tribunal’s finding may not simply reflect on his reputation but may also prevent him
from practising as a doctor, either for a specified period or indefinitely.

He went on to state at P. 96:

“It is sufficient to say that the applicant cannot be deprived of his right to fair
procedures, which necessitate the giving of evidence by his accusers and their being
cross-examined, by the extension of the exceptions of the rule against hearsay to a
case where they are unwilling to testify in person

The desire of the council to proceed with an inquiry based on the records of the
proceedings in the United Kingdom is perfectly understandable, having regard to the
important statutory function entrusted to them of investigating any allegations of
professional misconduct against doctors registered in this jurisdiction which come to
their attention. However, that consideration cannot relieve the High Court or this
court of the obligation of ensuring the right of the doctor concerned to a fair hearing
is, so far as is practicable, upheld”

9. 9. What is the effect on the Tribunal?

What effect does the unavailability of Mr Andersen / AMI have on the work of the Tribunal
having regard to the Terms of Reference given to it by the two houses of the Oireachtas?
The Tribunal in the case of Dermot Desmond –v- Mr Justice Michael Moriarty argued before
Mr Justice Quirke (see Page 89 – Day 2)

“..but what the Tribunal cannot do and what the Tribunal would be in breach of its
obligations if it did do, would be to foreswear or forego and say, well we won’t look
into that. For this reason, amongst others, Mr Desmond is not the only one with
rights. Let me take the two people with the most conspicuous rights, I suppose Mr
Lowry and Mr O’Brien, both of whom are in the public domain as calling for the
fullest inquiry, because they vigorously protest their innocence of any wrongdoing,
that this was a perfectly proper process in which they behaved perfectly properly.

The Tribunal surely owes it to them to pursue all these matters and to leave, I will
say not ‘no stone unturned’, but to leave no part of the process unreviewed, as it
were. It seems to me that if there is a hierarchy of rights, there is a much more
pressing obligation on the Tribunal arising out of its obligations to those who are
accused or, to some extent, in the frame in terms of suggestions whether they are
accused or not. There have been suggestions that as a part of the focus, that Lowry
and O’Brien having been asked for and been entitled to a full examination of the
process, are entitled to get it.

And it ill behoves someone relatively on the fringe, I don’t mind that and I mean that
in any insulting way of the matter to say ‘well I do not want you to do that because I
do not like the Glacken Report and I will have issues with Mr Glacken – I think he
got it wrong, and so on’, but for that reason I do not want you to follow this part of
the wiring of the house”.

The effect, therefore, must surely be that in the absence of Mr Andersen and his AMI team, it
will not be possible for the Tribunal to inquire fully into the process for the award of the
licence or indeed to matters arising or not arising during the negotiation and subsequent award
of the licence to Esat Digifone. It is abundantly clear from the factual situation how
important and relevant Mr Andersen and AMI were to the process. Indeed it is apposite to
look at what the Chief Justice said about AMI in Orange Communications -v- The Director of
Telecommunications Regulation and Meteor Mobile Communications Limited in his decision
delivered on 18 May 2000. (at page 128)
 “I have already emphasised the importance in a case such as this of the High Court
recognising that the Oireachtas has entrusted the impugned decision to a body with
a particular level of expertise and specialised knowledge or which, at the least, has
the capacity which the Court has not, to draw on such specialised knowledge, as the
Director did in this case, by retaining the services of AMI. I have no doubt that
wholly insufficient weight was given to that aspect of the case, both in the Judgment
under appeal and the submissions addressed to this Court on behalf of Orange”.

Mr O’Brien submits that it would be impossible for the Tribunal to say that it had carried out
its remit if it attempted to report to the two houses of the Oireachtas without having had the
benefit of the oral evidence of Mr Andersen and his AMI team, particularly in circumstances
where it may be capable of being obtained, or if it failed to give the Oireachtas the
opportunity of considering whether it wished to grant the indemnities as sought.

Quite apart from the time and cost incurred probing so many witnesses on issues for which
Mr Andersen was the central figure, the absence of Mr Andersen and the other witnesses from
his AMI team deprives the Tribunal of evidence that would, it is submitted, be of considerable
weight in reaching conclusions of fact. Oral evidence given before the Tribunal by witnesses,
whose demeanour and deportment can be observed, is essential when seeking to determine
disputes of fact between parties. It will never be possible to determine the weight that would
have been given to Mr Andersen’s evidence by the Tribunal if he is not available. It is
apparent from the Tribunal’s dealings with Mr Andersen that it recognises he is a crucial and
important witness. The anxiety of the Tribunal to procure his presence confirms this belief. It
is also noteworthy that correspondence between Mr Andersen and his Solicitors indicate that
he is asserting that he will not “assist the Tribunal at this stage… maybe things will change
next year – one never knows.” (Day 160, page 80).

The availability of such a crucial witness should compel the Tribunal to take all necessary and
available steps in order to seek to procure his attendance. This is not being done. Mr O’Brien
submits that the Oireachtas should be informed of this issue and the Tribunal should advise it
that it is not possible to complete its inquiry in to the competition without the evidence of Mr.
Andersen. The Oireachtas can then decide what it wishes to do.
Alternatively, Mr O’Brien submits that the Tribunal should recognise that its inquiry into the
GSM cannot be completed and should now be stopped before further unnecessary and
unmerited damage is caused to Mr O’Brien’s reputation.

10. 10. What is the effect on Mr O’Brien?

Although the Terms of Reference require the Tribunal to inquire into payments made to Mr
Haughey and Mr Lowry, the investigation of the GSM Licence necessarily challenges Mr
O’Brien’s constitutional entitlement to his good name. This public inquiry has now been
proceeding for 3 years and no end appears in sight. Consequently, it is submitted on behalf of
Mr O’Brien that the Tribunal is required to act in a manner and under procedures which pay
due regard to his constitutional rights. The fact that Mr O’Brien is not the subject matter of
this Tribunal of Inquiry accentuates the necessity for the Tribunal to ensure that its procedures
will, as far as is reasonably possible, ensure that his good name is protected. In order to
ensure that Mr O’Brien’s good name is protected, it is submitted that the Tribunal should only
continue to investigate the GSM Licence once it is satisfied that all efforts have been made to
secure all relevant available evidence for the Tribunal. Without taking all potential steps to
secure these witnesses and the documents that they produced, it is submitted that the Tribunal
is not in a position to determine the facts as it was mandated to do by the Oireachtas.

It is further submitted that the matter of urgent public importance that the Tribunal is required
to investigate (namely payments to Mr Lowry and Mr Haughey) cannot be effected without
the crucial evidence of Mr Andersen and his AMI team. It is for this reason that Mr O’Brien
submits that the Tribunal should, at this stage, prior to reporting on the award of the GSM
Licence, terminate its inquiry or revert to the Oireachtas in order to inform it of the
unavailability of Mr Andersen and his AMI team and to inquire from it whether it is prepared
to provide him with the indemnities as sought.

It is submitted that if the Tribunal fails to revert to the Oireachtas for the purpose of informing
it about the unavailability of Mr Andersen and his AMI team and inquiring into whether the
indemnities as sought could be provided by the Oireachtas, the Tribunal will be failing in its
duty to the Oireachtas. Ultimately, the issue as to whether or not Mr Andersen’s evidence is
so necessary that the indemnities should be given, is a matter for the Oireachtas. As was
recognised by Finlay C.J. in Goodman .v. Hamilton [1992] 2 IR 542, a Tribunal of Inquiry

“is simply a fact-finding operation, reporting to the Legislature.”

This fact-finding operation and the consequent reporting to the Legislature can not be
completed effectively until such time as the Legislature is appraised of the unavailability of
Mr Andersen and determines whether it is prepared to provide him with the indemnities
sought.

It is also noteworthy that the inquiry into the GSM Licence is detrimentally affecting Mr
O’Brien’s constitutional right to his good name. Mr O’Brien has a significant concern that
this damage, compounded by successive sensationally presented Opening Statements, which
could be arrested and reversed through the evidence of Mr Andersen and his AMI team, will
increase if the crucial evidence of Mr Andersen is not capable of being presented to the
Tribunal. As was stated by Hederman J. in Goodman .v. Hamilton (1992) 2 IR 542:-

“A constant theme in the argument of Counsel for the Applicants was that the
hearings before the Tribunal would effect the good name of their clients as well as
various officers and employees of the various companies and that any findings of
misconduct indubitably would bring about the tarnishing of their reputations and
added gravity would be attached to any findings of misconduct because the sole
member of the Tribunal was the President of the High Court. No one could gainsay
this proposition. But it has to be said that the constitutional requirement which is
reposed in all organs of the State “is to respect, and, as far as practicable, by its
laws to defend and vindicate the personal rights of the citizen”. These rights include
the citizen’s good name. Here all the requirements will be present in this Tribunal to
see that each good citizen’s good name is vindicated and every opportunity will be
afforded to anyone in respect of whom any allegation of impropriety is levelled to
establish his version of events”

Further, in the case of Redmond .v. Flood [1999] 3 I.R. 79 Hamilton C.J. recognised the
obligations that rested upon Tribunals of Inquiry when conducting inquiries that affect the
constitutional rights of individuals. He stated:-
“The effect of such resolutions is undoubtedly to encroach upon the fundamental
rights of the Applicant in the name of the common good but is justified by the
exigencies of the common good. Such encroachment must however be only for the
proper conduct of the inquiry.

The Tribunal is obliged to conduct its inquiry and all necessary proceedings in
relation thereto in accordance with fair procedures and the principles of
constitutional justice.

Apart altogether from the steps already taken by the Tribunal as outlined in the
affidavit of the Applicant and illustrated in the exhibits therein referred to, the sole
member in the course of clarification of the Terms of Reference given on the 21st
October 1998, stated at para. 67 thereof that:-

“The starting point of any Tribunal in this State, in relation to the model of
procedure to be adopted is the Constitution. A Tribunal must at all time fully
respect the constitutional rights of all persons whose interests may be affected by
the course of the inquiry work.”

The Tribunal further stated at para. 69:-

“The Supreme Court is a number of decisions, including the recent

decisions in the cases of Haughey v. Moriarty and Bailey v. Flood both
delivered on the 28th July, 1998, has provided considerable guidance to
Tribunals of inquiry as to the legal and constitutional parameters in which
the work of an inquiry is to be carried out. It is the intention of this
Tribunal to fully implement the guidance outlined in those decisions.”

Fair procedures and the principles of constitutional justice do not require that the
proceedings of the Tribunal be conducted in private. It is of the essence of such
inquiries that they be held in public for the purpose of allaying the public disquiet
that led to their appointment.”
The obligation that is imposed upon the Tribunal to investigate fully and adequately, so that
the truth is established and the good name of individuals is protected, was recognised by
Counsel for the Tribunal in the case of Desmond .v. Moriarty at page 98 of Day 2 where it was
stated:-

“If, as I say the Inquiry failed to deal with the issue to which my friend takes
exception and objects, it would fail at least Mr Lowry and Mr O’Brien. It would fail
them and it could well fail its mandate from the Dail. The obligation to investigate
or to inquire, using the statutory language, is not only to show that there has been
some wrongdoing or badness or impropriety in a licence allocation. If you assume
that the Licence was fairly and properly granted, how can the Tribunal, I ask
rhetorically, ascertain that fact and vindicate the rights of those against whom
questions have been raised, unless it investigates, crawls across and satisfies itself as
to every aspect of the process and certainly every aspect that has the appearance of
being untypical, slightly unusual, as in the fact that Mr Desmond was not
evaluated”.

Counsel on behalf of the Tribunal also stated:-

“If it is to deliver an honest vindication of those against whom questions have been
raised, if it is to determine that the concerns expressed publicly are groundless, you
cannot confidently or authoritatively do that unless and until it, as I say, crawls
across or looks at or reviews and ascertains for itself that all aspects of the
evaluation process were properly conducted and in doing that, some people’s rights
to privacy, for instance here to take second place”.

The effect, therefore, if the inquiry were to conclude without having heard Michael Andersen
and the other specialist consultants from AMI, is that the Tribunal would not be in a position
to report on the process in the way in which it suggested it would. It would therefore not be
fulfilling a function given it by the two houses of the Oireachtas.
11. 11. The Delay of the Tribunal

Mr O’Brien submits that there has been an inordinate and inexcusable delay on the part of the
Tribunal in concluding its inquiry into the second GSM module. This delay arises in two
areas. Firstly, there has been a general delay in its inquiry into the GSM module. Secondly,
there has been specific delay in respect of seeking to procure the evidence of Michael
Andersen.

In respect of the former, it is noteworthy that the Terms of Reference of the Tribunal requested
it:-

“to report on an interim basis, not later than three months from the date of
establishment of the Tribunal or the tenth day of any oral hearing, whichever shall first
occur, to the Clerk of the Dáil on the following matters:

- the numbers of parties then represented before the Tribunal;

- the progress which has been made in the hearing and the work of the Tribunal;

- the likely duration (so far as that may be capable of being estimated at that time) of
the Tribunal proceedings);

- any other matters which the Tribunal believes should be drawn to the attention of the
Clerk of the Dáil at that stage (including any matter relating to the Terms of
Reference)”

The Tribunal has now been in operation for 8 years and has not produced any substantive
interim report on any module, let alone the GSM module. The delay in the conclusion of its
inquiry is having a significant and detrimental impact on the international business reputation
and operations of Mr O’Brien. Since the establishment of the Moriarty Tribunal, Mr O’Brien
has become involved in the mobile phone business in the Caribbean through the company,
Digicel Caribbean Limited. Digicel’s business operations, including its applications for
licences in various territories in the Caribbean have been continually questioned by regulatory
and other authorities as a result of what is presented as “alleged wrongdoing” being exposed
by a Tribunal in Ireland.

Repeatedly, Mr O’Brien, through his counsel and solicitors has sought to inform the Tribunal
of the damage it was causing to his reputation and business interests. This information has
fallen on deaf ears. None of these have been recognised and have been effectively dismissed
with the anodyne statement that the Tribunal is not making any allegations. Unfortunately,
the Tribunal is not held to account by any institutions of State and, consequently, is free to
protract this inquiry for as long as possible without having to even consider the damage it has
caused Mr O’Brien. If the Tribunal had inquired into the GSM module in an efficient and
speedy manner, the inquiry would be over and a report would be available for all to see.

Mr O’Brien is concerned about the delay of the Tribunal and its inexcusable nature. During
the course of hearings into Doncaster Rovers Football Club before the High Court, it was
suggested that the Tribunal was prevented from continuing with its inquiry into the GSM
module because of Mr O’Brien’s challenge to the Doncaster Rovers Module.
Notwithstanding the assertions of Mr O’Brien’s Counsel that there was nothing to stop the
inquiry into the GSM module continuing, no public evidence in respect of the GSM module
has been adduced since April 2004. Mr O’Brien submits that the Tribunal should explain
what appears to be its inexcusable delay in continuing with the GSM module for a period of
17 months.

In respect of the delay in procuring the evidence of Mr Andersen in Denmark, Mr O’Brien

submits that nothing has been done by the Tribunal between October 2004 and April 2005 in
respect of procuring this evidence. In light of the statement from the Danish lawyer that such
evidence could be procured within a matter of four to six months it is simply inexcusable that
no steps have been taken by the Tribunal to initiate a Danish court application. Mr O’Brien
submits that a full explanation should be provided by the Tribunal for this inexcusable delay
in seeking to make an application for the evidence of Mr Andersen in Denmark, particularly
in light of the clear directions in this regard as given by the Government.

Even at this late stage it is submitted that the Tribunal must recognise the ongoing damage
that its endless inquiry, at this stage running at eight years, is causing to Mr. O’Brien. Now is
the opportunity for it to stop and bring its inquiry into the GSM module to an end.
It is also noteworthy that to date Mr. O’Brien has spent in the region of €7.5m in retaining
professional advisers to defend his reputation before the Tribunal. Whilst Mr. O’Brien is a
wealthy individual, it is submitted that no person, including Mr. O’Brien, should be placed in
a position that such costs are necessary, particularly in light of the Tribunal’s excessive delay
in carrying out its mandate. It is also submitted that the position enjoyed by Counsel for the
Tribunal who are paid on a monthly basis when contrasted with Mr. O’Brien’s position of
having to incur such significant costs over a four year (and continuing) period without any
provision to recover costs on an interim basis is unfair.

12. 12. Conclusion

(i) (i) Mr. O’Brien submits that the absence of any evidence of wrongdoing in
respect of the competition and evaluation process means that its inquiry
should now stop. There is no evidence of wrongdoing justifying further
inquiry. The Tribunal should report that the competition was clean and the
best bid won.

(ii) The Tribunal should recognise that in the absence of evidence from
Mr. Andersen the inquiry into the GSM cannot be completed and
should now be stopped before further unnecessary damage is caused
to Mr O’Brien’s constitutional rights.

(iii) (ii) Further, and in the alternative, Mr O’Brien submits that in the absence of
any evidence indicating that the evaluation process was interfered with by
Michael Lowry, the Tribunal’s inquiry into the evaluation process is outside
its Terms of Reference. The Tribunal should explain why it proposes to
continue with the inquiry into the evaluation process.

(iv) (iii)Further, and in the alternative, Mr O’Brien submits that the procedure it
is following and intends to follow in respect of the evaluation process is
unfair. Mr O’Brien submits that the Tribunal should clarify what line of
inquiry it is pursuing in respect of the evaluation process. If it believes that
 the evaluation process was interfered with by Michael Lowry then this
should be stated and the evidence for this interference should be introduced
at public hearing. Simply because the evaluation process contained flaws
(which is denied), does not mean that it merits inquiry by the Tribunal
unless it can be linked to such interference by Mr Lowry.

(v) (iv) Further, and in the alternative, the Tribunal should take further steps
to procure the evidence of Mr. Andersen and the other AMI witnesses.

(vi) (v) Further, and in the alternative, the Tribunal should revert to the
Oireachtas apprising it of the absence of Mr. Andersen and his request for an
indemnity.

(vii) (vi) Further, and in the alternative, the Tribunal should inform Mr.
O’Brien of the procedures it intends to follow in concluding its inquiry.

Jim O’Callaghan
Eoin McGonigal SC
Gerry Kelly SC

12 September 2005
WF-480628-v12
 SCHEDULE 1

Michael Andersen established AMI in Denmark in 1991. Prior to establishing AMI, Michael
Andersen accumulated a wealth of experience in the telecommunications sector having begun
his professional career as a Head of Section with the Danish Telecommunications Regulator’s
Office in 1983. Full details of Michael Andersen’s education, professional qualifications,
publications and professional experience were submitted as part of Annex B to AMI’s tender
for the GSM II project dated 16 March 1995. Similar details for the six other AMI
consultants involved in GSM II were also provided.

At the time of the submission of their tender, AMI was recognised as a leading international
management consultancy firm with a particular expertise in the field of telecommunications.
Indeed, AMI had a specialist department wholly devoted to the developing mobile technology
sector and had been involved in a great many licence competitions similar to the project being
undertaken by the Irish Government in GSM II. AMI’s expertise was underscored by the vast
number of projects in which they had been involved prior to the submission of its tender for
the Irish GSM II process. AMI’s established reputation had earned them telecommunications
consultancy work with Governments around the world in locations as diverse as the USA,
Nepal, Zambia, Great Britain, Mauritius and Albania (amongst numerous others). It is clear
that AMI’s reputation and international standing has grown even further since its involvement
with the GSM II process in Ireland. AMI had, as of January 2002, been involved in the award
of over 120 mobile telecommunications licences in over 48 countries.

AMI first became involved in the GSM II tender in Ireland by responding to an invitation to
tender published by the Irish Government in the Official Journal of the European Community
in late 1994. AMI responded to this by submitting a pre-qualification document and
subsequently a final tender and quotation on 16 March 1995 to DTEC.

AMI’s tender was entitled:

“Detailed and costed proposal for tailor made expert and consultancy services in
connection with the evaluation and licence award to an operator to install and operate
a second GSM network in Ireland”.
DTEC assessed AMI’s tender along with the others submitted and decided to award AMI the
consultancy work for the GSM II project. AMI were formally informed of this decision in or
around early April 1995. AMI’s work on the GSM II project in Ireland commenced in mid
April 1995. AMI’s appointment was announced publicly on 11 April 1995. AMI had their
first meeting with the team drawn from the Department of Telecommunications, Energy and
Communications and the Department of Finance on 19 April 1995. Both Michael Andersen
and Marius Jacobsen attended at this preliminary meeting

AMI were retained by the Irish Government to provide expert assistance to the GSM II
process. It is clear that once AMI were on board no other external advisers or consultants
were retained by the Irish Government to provide assistance in the process. It is also clear
from documentary and oral evidence lead to date that AMI were being retained to provide
expert assistance in the formulation and conducting of an evaluation process which would
ultimately allow the Irish Government to chose the best applicant for the GSM II licence, such
applicant to be granted the entitlement to negotiate for the award of the GSM II licence.

Despite beginning work in April 1995, a formal contract between DTEC and AMI was not
drafted and signed until 9 June 1995. After the signing of this contract it appears that it was
necessary to amend the contractual terms with regard to the scope of work to be carried out.
The amendment to the contract included work that was outside the scope of the tender
submitted on 16 March 1995. These amendments to the contract were agreed on 14 June
1995. It appears that at a later stage during the process it was necessary to make further
significant amendments to the terms of the contract due to what were regarded as unforeseen
circumstances. These unforeseen circumstances included work that was not envisaged,
complaints submitted by potential applicants, the intervention via the EU Competition
Directorate and what was regarded by AMI as difficulties arising from the fact that AMI had
not been involved in the design of the evaluation process.

The amendments to the contract were laid out and agreed in the letter from Martin Brennan to
AMI dated 14 September 1995. This letter was the culmination of a series of contractual
negotiations between AMI and the Department and set out a fixed fee approach that was
contrary, in AMI’s view, to the original tender and quotation submitted on 16 March 1995.
This information contained in this letter has proven to be extremely important in trying to
understand the interaction between DTEC and AMI in the most crucial final stages of the
process, particularly as regards the timetable for the project and in assessing the financial
constraints which were imposed on the process. Unfortunately, for reasons which are as of
yet unexplained, this letter was not put into evidence by the Tribunal, which resulted in an
entirely inappropriate course of inquiry being vigorously pursued - one which was time
consuming, costly and ultimately unnecessary. Mr. O’Brien has made his views known to the
Tribunal in this regard. It suffices to say that the circumstances surrounding the Tribunal’s
omission to enter this and other documents into evidence at the appropriate time, or at all, has
severely damaged Mr O’Brien’s faith in the Tribunal’s ability to carry on a full and fair
inquiry into the circumstances surrounding the granting of the second mobile phone licence.

Apart from the GSM II tender, the Department had also retained AMI to prepare a report of
the regulatory regime. The contract in relation to this work was agreed on 12 July 1995 and it
should be noted that work in this regard was carried on in tandem with the GSM II project.

The Role played by Michael Andersen and AMI in the Process.

Evidence led in the hearings to date has established that AMI’s role in the GSM evaluation
process involved, at a minimum, the following:

• AMI were members of the project team entrusted to carry out the evaluation process (The
“PT GSM”).
(a)
• AMI provided expert guidance to all the other PT GSM members in all aspects of the
evaluation process.

• AMI participated in every one of the sub-groups and thus played a significant role in the
scoring of each and every sub-indicator that fed into the final result.

• AMI designed the evaluation model including both the quantitative and qualitative
evaluations.

• AMI were responsible for breaking the para 19 criteria as set out by the Government into
aspects, dimensions, indicators and sub indicators.
• AMI were heavily involved, if not solely responsible, for designing the weighting process
and converting the principles established by the para 19 criteria into a mechanism for
scoring the applications.

• AMI prepared a draft entitled “input into the memorandum concerning how the financial
capability is going be assessed” on 25 April, 1995.
(b)
• AMI advised DTEC on the preparation of the Information Memorandum issued to the
interested parties on 28 April 1995.

• AMI advised DTEC to prepare a memorandum of supplementary information on the

subject of interconnection, which AMI subsequently drafted, and which was issued to the
interested parties. AMI also carried out benchmark studies for DTEC in relation to same.

• AMI provided detailed expert advice to DTEC on the EU Commission’s position on the
licence fee issue and drafted documentation in relation to same. AMI also attended at a
meeting, along with a delegation representing the Irish Government, with the EU’s
Competition Directorate on this issue.

• AMI prepared a memorandum for DTEC concerning the Commission’s approach to GSM
tenders.

• AMI participated in most of the important PT GSM meetings, a number of which were
held in Copenhagen and which were driven by AMI.

• AMI reviewed the detail of the applicant-specific questions.

• AMI advised DTEC to circulate guidelines to the RFP and assisted DTEC in the drafting
of same.

• AMI identified, from the RFP, the measurable / quantifiable minimum requirements of the
RFP.
• AMI prepared a “reader’s guide” to assist all other members of the PT GSM in reading
the licence applications.

• AMI prepared the first draft licence.

• AMI devised the timetable for the process (as per the Gannt Sheet).

• AMI were responsible for amending the evaluation model and adapting the weightings
following the fixing of the licence fee.

• AMI devised the format of the Oral Presentations held on 12-14 September 1995 and
Michael Andersen, Jon Bruel, Marius Jacobsen and Ole Feddersen attended at each of the
six individual presentations took a central role therein.

• AMI devised the sub-groups to assess the qualitative aspects of the evaluation and
prepared timetables in relation to each sub-group.

• AMI provided the separate “number crunching” team and carried out the “number
crunching” process i.e. the quantitative evaluation.

• AMI were responsible for the drafting and production of the evaluation report and as such
were ultimately responsible for the amendments within the various drafts of the final
report.

• AMI were present at the meeting in Copenhagen with Martin Brennan and Fintan Towey
at which, it would appear, the final result emerged. This meeting is also important for the
following reasons:

- AMI were ultimately responsible for the decision to abandon the

quantitative analysis.
 - AMI were ultimately responsible for the decision to adopt the “holistic
approach”.

- AMI were ultimately responsible for the decision not to score “other
aspects” including credibility, risks and sensitivities.

- AMI were involved in the decision to convert the grades in the final report
to points.

• AMI had overall responsibility for carrying out the scoring of the applications that gave
rise to the final result.

• AMI were obviously intimately involved with the contractual issues which arose between
DTEC and AMI and which were ultimately had an important bearing on the level of work
to be carried out by AMI, particularly towards the conclusion of the evaluation process.

The above represents some of the work carried out by AMI during the evaluation process
leading to the announcement of the result of the competition on 25 October 1995. It appears
that AMI were also involved, albeit to a lesser extent, in the negotiation process for the award
of the licence in May 1996. Again, evidence led to date has established that Michael
Andersen /AMI were involved in the following aspects of the licence negotiation process:

• AMI prepared a memorandum for DTEC entitled “Note on the incorporation of

information from the A5 application into the final Licence”.

• AMI were involved in the first meeting with Esat Digifone after the announcement on 25
October 1995 which began the licence negotiation process.

• AMI advised DTEC as regards dealing with disappointed applicants and sent a
representative to Dublin to meet with disappointed applicants.

• AMI provided oral advice to DTEC regarding the filing of a complaint filed by Persona
with the EU Commission.
The above detail of AMI’s involvement has been gathered from evidence led to date in public
hearings. Some of the points set out above have been focused on in great detail by the
Tribunal, whilst others have merely been touched upon. What has become clear is that it has
proven practically impossible to elicit the definitive circumstances and facts surrounding any
of these issues without the evidence of Michael Andersen / AMI.

Apart from the points listed above, there are other issues which appear central to the
Tribunal’s inquiries, but which again suffer from the unavailability of the central player in the
evaluation process. Many of these issues remain, it is submitted, inadequately explored.
Considering the emphasis being placed upon these issues by the Tribunal, it is submitted that
the evidence of Michael Andersen / AMI is absolutely essential in order for the Tribunal to
properly carry out its fact finding function. The issues that remain unexplored include:

• The inadequacies in the Request for Proposals document which was prepared prior to the
involvement of AMI and which contained the evaluation criteria. The extent to which
these inadequacies contributed to the subsequent shortcomings in the evaluation process is
something that can only be dealt with by Michael Andersen / AMI. This issue has not been
given the prominence it deserves.

• The absence of adequate financing for the project, including the absence of financing to
further engage AMI beyond 25 October 1995.

• The purported attempt by Sean MacMahon to seek an extension to the process on 23

October 1995 and the decision reached in relation thereto.

• Whether in fact the extension, if known to AMI, was simply a request to bring the
announcement back from 24 to 25 October 1995.

In the absence of Michael Andersen and his AMI team, it is impossible to establish
definitively the facts and circumstances surrounding their role in the GSM II process.
However, it cannot be disputed that Michael Andersen and his AMI team played a central role
in the GSM II process and, as such, are indispensable to the inquiry into the matters before the
Tribunal.

It has also been established that AMI has in its possession approximately 300 documents
pertaining to the GSM II process. In light of the evidence led to date, the Tribunal must
consider whether or not it is in a position to fully inquire into the matters currently before the
Tribunal without having access to these documents.

This Tribunal has laid great emphasis on the amount of work carried out by AMI for the State
since the GSM II licence process. On Day 223 Counsel for the Tribunal examined Mr Fintan
Towey of the Department of Transport. Energy and Communications as follows:

“Q: And this is relating to Mr Andersen. Mr Andersen –

A: Yes.

Q: Mr Andersen has not come here. He has furnished information to the

Tribunal and attended meetings with the Tribunal at an early stage, but has
not come here to give evidence, and it looks as if he is not coming to give
evidence, to stand over this particular report.

A: Yes.

Q: And we know, or you know specifically, that he was paid significant fees by
the Department, isn’t that correct, for his work?

A: That’s correct, yes.

Q: And I think he was also paid fees by the Department in relation to some
strategic planning?

A: A study of the establishment of independent regulation, yes.

Q: That would be in the region of hundreds of thousands of pounds, isn’t that
correct?

A: In the –

Q: I am told, maybe this is wrong, it may have been close to a million euro, in
euros, I don’t know, in all?

A: In pounds, I think what he received for the GSM work and for the
regulatory study was in the order of half a million pounds, I think.

Q: Pounds. All right. Now, the Commission for Communications Regulation

have informed the Tribunal that Mr Andersen received the following
payments from them – this is from the Irish State, in effect, for work he
carried out here?

A: Okay.

Q: That is in addition, now, to the monies which he received from the

Department for your work.

He received fees of €3,953,259.21, made up of:

DCS 1800 – 570,513 – sorry, these are euros – €570,513.77.

Third Mobile Licence 3G – €1,995,089.79.

FWPMA – I don’t know, maybe you could help me on that – 500 –

A: Sorry, FW –

Q: FWPMA?

A: Fixed Wireless Public Mobile Access, I think.

Q: Okay. FWPMA – €502,021.09.

Orange Case – €340,744.89.

FWA Court Case – €12,995.91.

FWMPA Review – €216,723.44.

FWA Project A – €47,769.29.

TETRA – €43,156.84.

FWA Project B – €219,977.85.

And Mobile Access Charge – €4,266.33.

Making in all the total €3,953,259.21.”

SCHEDULE II