What steps did the Moriarty Tribunal take to secure the evidence of Michael Andersen / AMI?

 

On 29 October 2003, Michael Andersen indicated to the Moriarty Tribunal that he was willing to give evidence to the Tribunal if he was provided with an indemnity from the State in respect of all claims against him, whether direct or indirect arising out of the evidence he might give or arising from any proceedings connected with the process leading to the granting of the second mobile phone licence (such indemnity to extend to Merkantildata, the then owners of AMI.)   This indication was made some months after the Tribunal wrote to AMI’s Solicitors on March 2003 stating:

  

“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).

 

The Tribunal relayed the contents of Mr. Andersen’s letter of 29 October 2003 to the Government.  Following receipt of this letter from the Tribunal, the Government obtained a legal opinion from a Dnish lawyer, Mr Oluf Engell, of Hjejle, Gersted & Mogensen which confirmed that a procedure was potentially available under Danish Law whereby Mr Andersen, on a request from the Irish Authorities, could be compelled to attend before the Danish Courts for the purposes of giving evidence.  The Government replied by letter dated 17 June 2004 and stated that it had decided to defer a decision on Mr Andersen’s request for an indemnity pending the bringing of proceedings before the Danish Courts to seek the provision of Mr Andersen’s evidence.  The letter 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 Moriarty Tribunal retained Mr Engell to advise on the compellability of Mr Andersen and the prospects of securing his evidence through the Danish legal system in a form which would be of assistance to the Tribunal. The Tribunal received an initial opinion from Mr Engell in May of 2004.  In that opinion Mr. Engell emphasised that while there was a procedure that might be available at the behest of the Tribunal, there was no guarantee that the Danish Courts would act upon such a request.  Mr Engell attended a consultation with the Sole Member and members of the Tribunal legal team in Dublin in March 2005.  The Tribunal wrote to Mr Engell on 7 April 2005 setting out its understanding of Mr. Engell’s advice on those matters and asked Mr. Engell to confirm that the Tribunal was correct.  This letter stated:

 

“You have however pointed out that under Section 190 of that Act, the Danish Courts may have a broader jurisdiction in that the Section permits such applications by a “Foreign Authority”. It is the Tribunal understands that under the Danish legal system, the provisions of the “preparatory work” to the 1916 Act are deemed to be of assistance where matters of interpretation of the Act arise. You have informed the Tribunal that there is little guidance to be found in the preparatory work as to the meaning of the term “foreign authority” as distinct from “foreign court” and this question of interpretation has not previously been considered or determined by the Danish Courts.

 

You explained in the course of our conference that while it may be arguable that the term “Foreign Authority” would be interpreted to include a Tribunal established under the 1921 Act, there is considerable uncertainty surrounding the point. You suggested that such an application by the Tribunal for the taking of evidence from Mr Michael Andersen pursuant to Section 190 of the Act would involve a novel departure from the principles of Danish law and (as discussed at our conference) from the established principles of international law…

 

You have advised that the Court of First Instance, in common with similar Courts in this jurisdiction, has a very heavy case load and that the time available for such an examination of Mr Andersen would be scarce. Given the likely duration and complexity of his examination, you do not think that it is likely that the Court would be in a position to give any priority to his examination and that there could be a considerable delay (perhaps as long as twelve months) before the Court could accommodate the hearing of his evidence. Furthermore, it appears that the scale of the entire examination could well be a negative factor in the Court’s initial consideration of the substantive merits of the application.”

 

By letter dated 15 April 2005 Mr. Engell confirmed that the Tribunal’s understanding of his advices was correct.

 

The Moriarty Tribunal formed the view that it was apparent from Mr Engell’s advices that there was no realistic prospect of the Tribunal securing Mr Andersen’s evidence through procedures before the Danish Courts. The Tribunal conveyed the position to the Government and the Government then decided that it would not grant the indemnity sought by Mr. Andersen.   As a result of this refusal, Mr Andersen’s evidence has not been made available before the Moriarty Tribunal.

 

It is abundantly clear that Michael Andersen would, if he had given evidence to the Tribunal, testified that Esat Digifone was the best applicant in the second GSM process and won the competition fairly.  It is also clear that the Tribunal, despite receiving legal advice to the effect that it was possible, did not attempt to utilise Danish law to secure the attendance of Mr Andersen. Instead the Tribunal appears to have formed a view based on its own non-expert research combined with that of a consultant economist, Dr. Peter Bacon, that the work of AMI, a company with widespread experience in competitions of this kind and whose work was upheld by the Irish Supreme Court during a challenge to the third mobile phone licence, was fundamentally flawed.