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Tribunal Ruling Re: Opinion Dated 9th May, 1996 1. This

Tribunal Ruling Re: Opinion Dated 9th May, 1996 1. This



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Published by: Gavin Sheridan on Aug 05, 2009
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MAY, 1996 
This Ruling relates to an issue that has arisen in the course of theTribunal’s inquiries, pursuant to paragraph (e) of its Terms of Reference,into the circumstances surrounding the grant of the second GSM mobiletelecommunications licence to ESAT Digifone on 16
May, 1996. Theparticular issue which has arisen relates to an opinion of Counsel dated 9
May, 1996 that was provided to the Department of Transport, Energy &Communications (as it then was) in the weeks leading up to the grant of the licence. In brief, IIU Limited and Mr Dermot Desmond have soughtaccess to the opinion over which the Department and the AttorneyGeneral have maintained, and continue to maintain, a claim to legalprofessional privilege. What IIU and Mr Desmond are effectively asserting(and in which regard they are supported by Mr Denis O'Brien) is that theTribunal should make an Order for Production of the opinion, pursuant tothe powers conferred on it by the Tribunals of Inquiry (Evidence) Acts,1921 and 1979, notwithstanding that claim to privilege.2.In order to put this matter in context, it is necessary in the first place tomake reference to both the circumstances in which the opinion wassought by the Department, and to the Tribunal’s dealings with theDepartment in relation to it.
The second GSM process which led to the licensing of ESAT Digifonecomprised two distinct phases. The first phase, which involved thecompetitive evaluation of tenders submitted by interested parties,commenced on 4
August, 1995 with the receipt of tenders, andconcluded on 25
October, 1995 with the announcement that ESAT
Digifone was the winner of that competitive process. What ESAT Digifonewon, was not the right to the second GSM licence, but rather the exclusiveentitlement to negotiate with the Department for the grant of the licence.The second phase of the process involved negotiations between ESATDigifone and the Department which ultimately led to the grant of thelicence. This second phase commenced very shortly after theannouncement of 25
October, 1995, and concluded on 16
May, 1996,when the licence was issued.
It was during the second phase of the process that the opinion in questionwas sought after consultation between the Department and officials of theOffice of the Attorney General. Those consultations followed receipt of notification on 17
April, 1996, from William Fry Solicitors for ESATDigifone, concerning the composition of the ESAT Digifone consortium,and in particular informing the Department that a 20% institutionalshareholding provided for in the tender, would not be taken up by theinstitutions mentioned in the tender, namely, Allied Irish Bank, InvestmentBank of Ireland, Standard Life Ireland and Advent International plc, butwould be allocated to IIU Limited, a company beneficially owned by Mr Dermot Desmond together with a further 5% shareholding arising from thedilution of the holdings of Communicorp and Telenor. Following a meetingbetween officials of the Department and officials of the Office of theAttorney General on 24
April, 1996, the Department wrote to the AttorneyGeneral’s Office on 27
April 1996 in relation to a number of aspects of theprocess on which advice was being sought, and reiterated theDepartment’s requirement for a legal opinion on the re-structuring of theownership of ESAT Digifone and in particular:-
The question of whether recent correspondence suggests any changein the identity of the beneficial owners of the company which could be
considered incompatible with the ownership proposals in thecompany’s application must be addressed”.
That advice was sought in the light of paragraph 3 of the Request for Tenders document that had been issued by the Department on 2
March,1995 inviting interested parties to submit tenders, which provided atparagraph 3 that:-
 Applicants must give full ownership details for proposed licencee…” 
Whilst the correspondence received from Messrs William Fry, and thedealings between the Department and the office of the Attorney Generalfeatured in evidence led by the Tribunal in the course of public sittings, theopinion of 9
May was not led in evidence by the Tribunal having regard tothe legal professional privilege attaching to it, which was accepted by theTribunal and indeed is accepted by IIU Limited and Mr Desmond, and isfurther accepted in principle by Mr O’Brien.
With regard to this second preliminary matter, it is necessary to refer briefly to the Tribunal’s dealings with the Department in relation to theproduction of documentation. From in or about May, 2001, the Tribunalwas in contact with the Chief State Solicitor’s Office with a view toobtaining copies of all documents held by both the Department and theDepartment of Finance, in relation to the entire second GSM process. Atall times, it has been the preference of the Tribunal, in furthering itsinquires, to obtain documents from parties on a voluntary rather than acompulsory footing, and its dealings with both Departments were at alltimes on that basis. The documents in question were produced to theTribunal voluntarily, and in the course of that exercise the Chief StateSolicitor’s Office furnished the Tribunal on 15th February, 2002, with a

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