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(17th July 2007)

(17th July 2007)



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Published by Gavin Sheridan

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Published by: Gavin Sheridan on Aug 05, 2009
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July 2007)
One of the matters referred to in the Tribunal’s Ruling of 29
September, 2005 was my view, subject to any submissions that mightbe made, that in dealing with certain technical aspects of the GSMProcess it would be of value to have the evidence of an expert and thaton that basis it was proposed to introduce evidence from Dr. Peter Bacon. Dr. Bacon is the principal of Messrs. Peter Bacon & Associatesand has particular expertise and experience of competition processesand the application of scoring mechanisms in the conduct of suchprocesses.
The evidence Dr. Bacon was in a position to give related to limitedaspects of the mechanics of the GSM Process, focusing mainly on theapproach adopted to the use of numerical indicators in the calculationof the scores of the individual applicants. It is important to state now,as has already been stated, that Dr. Bacon was not being asked toconduct an audit of the GSMII Process. Nor was he being asked toevaluate the applications of the various applicants with a view toexpressing an opinion as to whether the correct result was reached bythe evaluators.
In the Ruling of 29
September, 2005 the Tribunal also dealt with thequestion of the absence of Mr. Michael Andersen and indicated thatnotwithstanding Mr. Andersen’s apparent unwillingness to giveevidence or otherwise to further assist the Tribunal, it nonethelessproposed to complete and report upon relevant matters pertaining tothe second GSM Competition. Following the Ruling Mr. Denis O’Brieninstituted High Court Judicial Review proceedings seeking various
forms of relief primarily in regard to what had arisen relating to both Mr.Andersen and Mr. Bacon. In a written judgment of 21
December,2005 Quirke J., refused each of the reliefs sought. Mr. O’Brienappealed that decision to the Supreme Court. That Appeal was heardand dismissed by the Supreme Court on 30
May, 2006, Denham J.,stating in an
ex tempore
decision that
having considered the Applicant’s submission and Respondent’s written submissions, thedecision of the High Court and the considered Ruling of theRespondent, the Court is of the view that there is no case to answer,for the reasons given by the High Court and is satisfied that theapplication should be dismissed and the judgment of the High Court affirmed.” 
It was following this Ruling that written submissions (havingalready been invited by the Tribunal) were received regarding theprospect of the Tribunal calling Dr. Bacon as a witness. They haveproved to be of considerable assistance. They have prompted adetailed reappraisal by the Tribunal of the proposal to adduce theevidence of Dr. Bacon and of the value of such evidence in advancingthe Tribunal’s task in finding facts pursuant to its Terms of Reference.All of the submissions were to the effect that Dr. Bacon’s evidenceshould not be adduced. A variety of reasons were put forward insupport of these submissions. Whilst not accepting all suchsubmissions or the reasoning upon which they were based, because Ihave determined to accede to the thrust of what is being contended for,I need only briefly refer to them at this point.
On behalf of Telenor it was contended that the question was notwhether the GSM2 Process was perfect, but whether any improper political influence or intervention in it was disclosed, that no expertcould help the Tribunal in that exclusively conferred function, least of all one not involved at the time, and that in any event Mr. Bacon’sexpertise was as a macro economist without significant expertise in
relation to GSM competitions or in evaluating competitive tendersgenerally. On behalf of Mr. O’Brien it was acknowledged that since thechallenge in the High Court and the Supreme Court had beenunsuccessful, the issue of whether or not to call Mr. Bacon was to bedetermined by the Tribunal, but that the Tribunal should not waste anyfurther time or money in seeking to introduce, through Mr. Bacon,evidence that merely sought to second guess Mr. Michael Andersen;further that Mr. Bacon had had no actual involvement in the process,could only testify as an expert and had neither the requisitequalification nor independence to warrant giving such evidence. Mr.Dermot Desmond and International Investment & Underwritingobjected to the introduction of any evidence from Mr. Bacon unless anduntil this could be shown to be connected to some wrongdoing on thepart of Mr. Michael Lowry as Minister and submitted that since noevidence was to hand of any such wrongdoing on the part of Mr.Lowry, or of Andersen Management International, the evidence shouldnot be introduced; that Mr. Bacon lacked the relevant experience, andthat such evidence was irrelevant, unnecessary and likely to delayfurther the completion of the relevant part of the Tribunal Report.
In a short and cogent submission on behalf of BTI and O2, thesuccessors of ESAT Digifone, it was indicated that whilst Mr. Baconmay have been of assistance to the Tribunal in equipping it with acertain insight into technical matters, this was to be distinguished fromputting Mr. Bacon’s views, as contained in his January, 2005 Report,into evidence as constituting expert evidence. Reference was made tothe decision of the Supreme Court of South Australia in
R. v. Bonython
(1984) 15 ACR 364, a case which not merely remains binding inAustralia, but which was stated in the most recent edition of Phipsonon Evidence as having generally set forth the legal position accepted in

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