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3. In the Ruling of 29th September, 2005 the Tribunal also dealt with the
question of the absence of Mr. Michael Andersen and indicated that
notwithstanding Mr. Andersen’s apparent unwillingness to give
evidence or otherwise to further assist the Tribunal, it nonetheless
proposed to complete and report upon relevant matters pertaining to
the second GSM Competition. Following the Ruling Mr. Denis O’Brien
instituted High Court Judicial Review proceedings seeking various
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forms of relief primarily in regard to what had arisen relating to both Mr.
Andersen and Mr. Bacon. In a written judgment of 21st December,
2005 Quirke J., refused each of the reliefs sought. Mr. O’Brien
appealed that decision to the Supreme Court. That Appeal was heard
and dismissed by the Supreme Court on 30th May, 2006, Denham J.,
stating in an ex tempore decision that “having considered the
Applicant’s submission and Respondent’s written submissions, the
decision of the High Court and the considered Ruling of the
Respondent, the Court is of the view that there is no case to answer,
for the reasons given by the High Court and is satisfied that the
application should be dismissed and the judgment of the High Court
affirmed.” It was following this Ruling that written submissions (having
already been invited by the Tribunal) were received regarding the
prospect of the Tribunal calling Dr. Bacon as a witness. They have
proved to be of considerable assistance. They have prompted a
detailed reappraisal by the Tribunal of the proposal to adduce the
evidence of Dr. Bacon and of the value of such evidence in advancing
the Tribunal’s task in finding facts pursuant to its Terms of Reference.
All of the submissions were to the effect that Dr. Bacon’s evidence
should not be adduced. A variety of reasons were put forward in
support of these submissions. Whilst not accepting all such
submissions or the reasoning upon which they were based, because I
have determined to accede to the thrust of what is being contended for,
I need only briefly refer to them at this point.
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relation to GSM competitions or in evaluating competitive tenders
generally. On behalf of Mr. O’Brien it was acknowledged that since the
challenge in the High Court and the Supreme Court had been
unsuccessful, the issue of whether or not to call Mr. Bacon was to be
determined by the Tribunal, but that the Tribunal should not waste any
further time or money in seeking to introduce, through Mr. Bacon,
evidence that merely sought to second guess Mr. Michael Andersen;
further that Mr. Bacon had had no actual involvement in the process,
could only testify as an expert and had neither the requisite
qualification nor independence to warrant giving such evidence. Mr.
Dermot Desmond and International Investment & Underwriting
objected to the introduction of any evidence from Mr. Bacon unless and
until this could be shown to be connected to some wrongdoing on the
part of Mr. Michael Lowry as Minister and submitted that since no
evidence was to hand of any such wrongdoing on the part of Mr.
Lowry, or of Andersen Management International, the evidence should
not be introduced; that Mr. Bacon lacked the relevant experience, and
that such evidence was irrelevant, unnecessary and likely to delay
further the completion of the relevant part of the Tribunal Report.
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the Courts of England and Wales. In particular reliance was placed on
the following passage from the judgment of King CJ:
Citing these tests, it was contended that Dr. Bacon’s Report did not
constitute expert evidence in as much as (however skilled or
experienced Dr. Bacon was) his views merely reflected the application
of ordinary tests of rationality to the conduct of the process or reasons
given by participants in the process for their having acted in one way or
another. The view contended for is that the process, or at least the
portion of it addressed in Dr. Bacon’s Report and in some of the
Tribunal’s evidence, is not impenetrable to the intelligent layman; that it
is the Tribunal’s view of the conduct of the process as evidenced by
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the witnesses involved that matters, not the views of a witness,
notwithstanding that witnesses expertise or experience. In other
words, the area of inquiry not being so impenetrable as to be incapable
of being comprehended by an ordinary intelligent layman it would be
wrong to accord a special status to Dr. Bacon’s views, the status
normally accorded to the views of an expert. In this regard, the
Tribunal has also had regard to some of the general principles
applicable in this area as set out in the well known case of Davie v
Edinburgh Magistrates, (1953) SC 34 and other more recent cases
including Conley v Strain (1998) IR 62, DK v PH (otherwise TK) and
JWH (otherwise W) v GW unreported, 1998, matrimonial cases
referred to in McGrath on Evidence.
6. The area to which Dr. Bacon addressed himself in his Report has in
the main already been covered during the course of questioning
pursued either by Tribunal Counsel or other Counsel. I accept the view
that the area in question, the scoring process, although complex is not
impenetrable. It has been submitted that Dr. Bacon is simply
expressing a view as to what the Project Team responsible for the
process should rationally or reasonably have done when confronted
with different sets of circumstances that he infers they were confronted
with; that he has merely expressed a view as to what the demands of
rationality required of the Project Team from time to time. While I
would reject any notion that Dr. Bacon was not a person of skill and
experience in the areas to which he addresses his comments, I accept
that the evidence proposed to be given is not expert evidence in the
narrow sense canvassed in Bonython above. I now think it preferable
that conclusions regarding the conduct of the process should be left to
submissions, if any, in due course.
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7. In conclusion, on this aspect, it would be wrong not to acknowledge the
assistance of Dr. Bacon in affording the Tribunal a technical insight in
relation to the line of questioning already being pursued by the Tribunal
and in particular, in enabling the Tribunal to exclude from any
consideration, as an indicator of possible interference or intervention in
the process by the Minister or any outside party, the change in the
manner of the measurement and scoring of IIR. It will be recalled that
this appeared to have benefited certain applicants but on the basis of
the evidence elicited, it has been possible for the Tribunal, with the
benefit of the insights afforded by Dr. Bacon to dispel the notion that
this resulted other than purely fortuitously.
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be noted that Mr Marius Jacobsen is deceased and that the Tribunal
has to date been unable to obtain any contact details for Mr Mikel
Vinter, despite a request for assistance in this regard to Mr Michael
Andersen to which no response was received.