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. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. PRELIMINARY 6 MR. O’ BRIEN’S ENTITLEMENT TO DEFEND HIS GOOD NAME. 8 THE TRIBUNAL’S INQUIRY INTO THE EVALUATION PROCESS.... 10 THE TRIBUNAL’S INQUIRY AND ITS TERMS OF REFERENCE. 15 AMI REPORT....... 17 PROCURING THE EVIDENCE OF MICHAEL ANDERSEN.. 25 PROCURING THE EVIDENCE OF OTHER AMI WITNESSES 31 ATTENDANCE AT PUBLIC HEARINGS / CROSS-EXAMINATION WHAT IS THE EFFECT ON THE TRIBUNAL? 39 WHAT IS THE EFFECT ON MR O’BRIEN? 41 THE DELAY OF THE TRIBUNAL... 45 CONCLUSION 47 35

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 nonexhaustive. (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 multistage 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 Not provided Tribunal 1 September 2005 by

“Economists Report for Persona Digital October 1996 Telephony Limited” by Moore McDowell and Rodney Thom of UCD “Review of specified elements of the Tender March 2003 Appraisal Process used in the Award of the 2nd GSM licence” by Peter Bacon & Associates “Evidence in response to specific questions January 2005 arising from a review of the Tender Process used in the Award of the 2nd GSM licence” by Peter Bacon & Associates

16 March 2005

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 Not circulated with Tribunal’s Books

“Confidential Memorandum on Andersen 20 July 2001 Management International’s involvement in and some cornerstones of the GSM 2 tender in Ireland” “Memorandum on AMI’s experience as the January 2002 lead consultant in the GSM 2 tender in Ireland, 1995” “Memorandum to the Moriarty Tribunal 20 February 2002 concerning the transparency of Evaluation Criteria” “Statement re Minister Lowry’s access to the 20 February 2002 Evaluation Methodology document” “AMI’s response to issues raised by the 20 June 2002 Tribunal”

25 November 2002

25 November 2002

25 November 2002 25 November 2002

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. 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… It would also be

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 crossexamine, 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: Q: Yes. 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: Q: Yes. And we know, or you know specifically, that he was paid significant fees by the Department, isn’t that correct, for his work? A: Q: That’s correct, yes. 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: Q:

In the – 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: Q:

Okay. 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: Q: A:

Sorry, FW – FWPMA? 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

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