OPENING STATEMENT:
2
3 MS. O’BRIEN: Today, the Tribunal will commence hearing
4 evidence from Mr. Michael Andersen, the Managing Director
5 and lead consultant with Andersen Management International,
6 the Danish consultants engaged by the Department of
7 Communications to provide expert assistance in connection
8 with the second GSM competition. While for many years
9 Mr. Andersen declined to come to Ireland to give his
10 evidence, his appearance here today is welcome and his
11 evidence is awaited with some measure of expectation as
12 being of potential significance to a number of important
13 matters canvassed before this Tribunal. It must, however,
14 be recognised that Mr. Andersen’s appearance as a witness
15 at this very advanced stage of the Tribunal’s inquiries is
16 not without its difficulties, having regard to the fact
17 that, unknown to the Tribunal for some five months, he had
18 been in receipt of an indemnity from Mr. O’Brien which
19 appears to be connected with his availability as a witness.
20 This will be referred to in due course.
21
22 The entire process for the design of the competition to the
23 ultimate formal grant of a licence involved a number of
24 stages as follows:
25
26 Firstly, the identification of the relevant evaluation
27 criteria, which, in the first instance, was done by the
28 Department.
29
30 Secondly, the identification of an expert consultant to
2
1 assist the Department in the running of the competition.
2
3 Thirdly, the choice of and design of an evaluation model.
4
5 And fourthly, the design of the competition, the receipt of
6 applications and the evaluation of those applications
7 leading to the announcement of the winner.
8
9 The winner of the competition was not automatically
10 entitled to the licence, but was the person to whom the
11 State, in the first instance, was obliged to offer the
12 licence in terms to be negotiated.
13
14 If negotiation with that entity or individual proved
15 ineffective, it was envisaged that the State would move to
16 the next entity, and so on.
17
18 Mr. Andersen’s role was almost exclusive confined to the
19 evaluation process, and, as far as can be seen, he would
20 not appear to have played a major role in the negotiation
21 process.
22
23 the Tribunal’s public hearings in connection with the
24 second GSM licence commenced in December 2002. Although
25 Mr. Andersen provided assistance to the Tribunal prior to
26 and following that date, he declined, despite the
27 Tribunal’s repeated requests, to provide evidence to the
28 Tribunal. As will be mentioned later, it was initially
29 intended by the Tribunal that the major, if not exclusive,
30 focus of the Tribunal’s inquiries at these sittings would
3
1 be directed to Mr. Andersen’s role in the evaluation
2 process as was suggested by him, although this was not to
3 say that the Tribunal would not wish to focus mainly on the
4 part he played and the part of his company, AMI, in the
5 evaluation process.
6
7 The preparation for these sittings has entailed significant
8 expense by reason of the fact that many documents
9 accumulated over a number of years have had to be
10 re-examined, as has evidence given over many days by
11 officials of the Department, members of the Project Team,
12 other officials of the Department and other persons
13 connected with the competition process. In the limited
14 amount of time available, it is not proposed to set out in
15 this Opening Statement a comprehensive account of the
16 evaluation process and its surrounding circumstances. This
17 was already done at considerable length at the time of the
18 institution of the Tribunal’s public sittings concerning
19 the licence.
20
21 What I now propose to deal with briefly are the main
22 features of the competition, with specific reference to
23 those parts of it with which Mr. Andersen was involved.
24
25 The competition to licence the second GSM operator to
26 compete with Eircell was launched by Mr. Michael Lowry on
27 the 2 nd of March, 1995. The competition was instituted on
28 foot of a Government decision of that date which authorised
29 the holding of the competition and approved the evaluation
30 criteria. That decision provided that the process would be
4
1 promoted and controlled by the Department of Transport,
2 Energy and Communications and that a recommendation will be
3 put by Mr. Lowry to Government in time for a final decision
4 by the 31st of October, 1995. The closing date was
5 initially fixed for 23rd of June, 1995. This was delayed
6 until the 4th of August, 1995, due to an issue surrounding
7 the competition design raised by the European Commission.
8 The projected completion date of the process was also
9 deferred until the end of November 1995. The result was,
10 however, announced one month, early on the 25th of October,
11 1995, as four weeks envisaged for Government consideration
12 had been abridged.
13
14 The competition process was initiated by the public issue
15 by the Department of a Request for Tenders documents. This
16 was contained in a document referred to in the course of
17 the Tribunal’s evidence as the RFP and was available to all
18 interested parties on payment of a fee of £5,000. It
19 contained the rules of the competition and it notified
20 interested parties of the criteria by which applications
21 would be evaluated.
22
23 Paragraphs 3, 9 and 19 were the significant paragraphs in
24 terms of the Tribunal’s inquiries, and you will recall,
25 sir, that they were paragraphs that were raised with a
26 number of the Departmental Officials who gave evidence and
27 those officials were asked as to what they understood by
28 virtue of the contents of those paragraphs, and just
29 briefly to recap on them.
30
5
1 Paragraph 3 declared that applicants must give full
2 ownership details for proposed licensee.
3
4 Paragraph 9 required applicants to demonstrate their
5 financial capacity and technical experience and capability
6 to implement the system if successful.
7
8 And paragraph 19 was the pivotal provision of the RFP in
9 that it set out the framework whereby applications would be
10 evaluated.
11
12 And I am just going to quote from that, sir.
13
14 It provided that: “The Minister intends to compare the
15 applications on an equitable basis subject to being
16 satisfied as to the financial and technical capability of
17 the applicant in accordance with the information required
18 herein and specifically with regard to the list of
19 evaluation criteria set out below in descending order of
20 priority:
21
22 “credibility of business plan and applicant’s approach to
23 market development;
24
25 “Quality and viability of technical approach proposed in
26 its compliance with the requirements set out herein;
27
28 “The approach to tariffing proposed by the applicant which
29 must be competitive;
30
6
1 “The amount the applicant is prepared to pay for the right
2 to the licence;
3
4 “Timetable for achieving minimum coverage requirements and
5 the extent to which they are may be exceeded;
6
7 “The extent of applicant’s international roaming plan;
8
9 “The performance guarantee proposed by the applicant;
10
11 And finally, “Efficiency of proposed use of frequency
12 spectrum resources.”
13
14 The comparative evaluation of applications was to be
15 conducted by a Steering Group or Project Group and it was
16 known as the PTGSM. It comprised civil servants drawn from
17 the three divisions of the telecommunications section of
18 the Department: the Development Division, headed by
19 Mr. Martin Brennan; the Regulatory Division, headed by
20 Mr. Sean McMahon; and the technical division, headed by
21 Mr. John McQuaid. The Project Group also had the
22 assistance of two accountants on secondment to the public
23 service from PricewaterhouseCoopers. The Project Group met
24 on twelve occasions, and on its second meeting on the 6th
25 of March, 1995, agreed a time-frame for the process,
26 together with a protocol for dealing with interested
27 parties. It was envisaged at the meeting of 6 March, 1995,
28 that the Project Group and its consultants would be
29 required to advise on a successful applicant by
30 approximately the middle of September 1995 in order to give
7
1 ample time to put the matter to Government for a decision,
2 bearing in mind that the tender document committed the
3 Department to a completion date of 31 October, 1995.
4
5 Andersen Management International, Mr. Andersen’s company,
6 were selected as consultants following a Europe-wide
7 competitive tendering process. Six tenders were received
8 by the Department, including a tender from KPMG London, who
9 had already advised the Department at an early point in the
10 process on the design, and indeed from AMI, who were
11 ultimately the successful candidates.
12
13 In their tender documents, Andersens proposed a detailed
14 methodology for conducting a comparative evaluation of
15 applications. In the first instance, each of the
16 evaluation criteria identified in the RFP document
17 published by the Department would be subdivided in what
18 Andersen’s termed the dimensions of those criteria. Those
19 dimensions would then be regrouped into four categories,
20 which they termed aspects, and which were defined as
21 marketing, technical, management and financial aspects.
22 Each of the dimensions was, in turn, subdivided into
23 indicators, and, in some instances, further subdivided into
24 sub-indicators, and it was these indicators and
25 sub-indicators which were intended to form the focus of the
26 assessment that was proposed by Andersens in that tender
27 document.
28
29 The key feature of the tender submitted by Andersens was
30 the recommendation that a dual evaluation technique should
8
1 be used embracing quantitative and qualitative evaluation
2 methods as follows:
3
4 Firstly, a quantitative technique based on a system of
5 points whereby the dimensions as represented by their
6 constituent indicators or sub-indicators would be scored
7 numerically.
8
9 Secondly, a qualitative technique whereby the same
10 dimensions would be reassessed and graded comparatively on
11 the basis of an award of marks.
12
13 Thirdly, in the light of the qualitative evaluation, the
14 quantitative evaluation would then be revisited and an
15 interplay would arise between the qualitative and the
16 quantitative before arriving at a final assessment and
17 ranking of applications.
18
19 This two-pronged technique, according to the tender
20 document, was based on the hard scoring of the quantitative
21 evaluation, balanced by the soft scoring of the qualitative
22 evaluation. The hard scoring brought the advantage of
23 objectivity and numerical certainty, and this was offset or
24 balanced by the woolier but nevertheless more nuanced and
25 wide-ranging scoring of the qualitative evaluation.
26
27 The advantages of the combination of the two were
28 self-evident. The use of both quantitative and qualitative
29 techniques would, according to the tender document,
30 maximise the validity and reliability of the results.
9
1 Andersens further explained in that tender document that it
2 was their experience that the two techniques commonly
3 yielded the same ranking which outcome would reassure the
4 Department that the correct result had been achieved.
5
6 The Evaluation Model, following on from the tender
7 document, stipulated the dual evaluation technique. An
8 information memorandum for the assistance of applicants was
9 issued and Andersens also recommended the provision of
10 further guidelines to applicants concerning the manner in
11 which applications should be presented, as well as 22
12 mandatory tables for completion by applicants that seemed
13 to be designed to assist in the quantitative evaluation.
14
15 The Evaluation Model adopted by the Project Group on the
16 9th of June, 1995, also provided for the application of
17 numerical weightings to the scores which emerged from the
18 quantitative assessment, which weightings were intended to
19 reflect the descending order of priority fixed by the
20 Government decision setting up the competition. Some
21 confusion has emerged in the evidence heard by the Tribunal
22 concerning the manner in which these weightings were fixed,
23 and whether the weightings ultimately applied were those
24 agreed for the purposes of the Evaluation Model.
25
26 The Model as adopted by the Project Group on the 9th of
27 June, 1995, identified the weightings by reference to the
28 constituent indicators of the criteria fixed by Government.
29 For example, it appears that following consideration by the
30 Project Group at its meeting of 18 May, 1995, the
10
1 weightings for the three dimensions of the first ranked
2 evaluation criterion, being credibility of business plan
3 and applicant’s approach to market development, as adopted
4 at that meeting, were as follows:
5
6 (i) market development: 7.5.
7 (ii) experience of applicant: 10.
8 (iii) financial key figures: 15.
9
10 This resulted in an overall weighting of 32.5.
11 When, ultimately, the weightings came to be applied for
12 these criterion as part of the final Evaluation Report, the
13 indicators were equally ranked with a weighting of 10 each.
14 This appears to be at variance with the Evaluation Model as
15 adopted at 9th of June, 1995. From the evidence of
16 officials also heard, it would appear that whilst those
17 weightings adopted on 9th of June, 1995, when aggregated,
18 came to a grand total of 103 instead of 100, this
19 discrepancy was to be accounted for in the course of the
20 calculation of the quantitative scores by the application
21 of what was known as a renormalisation factor. In other
22 words, each weighting was to be adjusted without losing its
23 proportionality to the other weightings so as to aggregate
24 to 100 instead of 103.
25
26 The qualitative evaluation, by contrast, as described in
27 the evaluation methodology, did not call for the
28 application of any predefined weightings. Instead, the
29 assessment was to be undertaken by sub-groups comprised of
30 Departmental Officials and Andersen Consultants which would
11
1 discuss the indicators for each dimension and would arrive
2 at a consensus assessment of the relative importance of the
3 indicators assessed and mark each application accordingly
4 on a so-called soft scale from A to E.
5
6 The Evaluation Model, as already mentioned, entailed,
7 firstly, a quantitative evaluation, followed by a
8 qualitative evaluation and the revisiting of the
9 quantitative evaluation in the light of that qualitative
10 evaluation. The precise nature of this revisiting and the
11 interplay that was then to take place between the two
12 approaches appears to have prompted some discussion at the
13 Project Group on the adoption of the Evaluation Model.
14 Following discussion, an additional section expanding on
15 this final limb of the evaluation was added, whereby the
16 general principles of the revisiting were amplified in the
17 final page of the Evaluation Model document.
18
19 In the event, it will be recalled the quantitative
20 evaluation was not produced as a separate part of the
21 intended dual evaluation in the Evaluation Report, and the
22 revisiting of the quantitative analysis on the completion
23 of the qualitative analysis and the final interplay
24 contemplated in the tender document and contemplated in the
25 Evaluation Model never seems to have proceeded.
26
27 The Evaluation Model made no provision for any
28 pre-admission assessment of the financial capability and
29 technical capability of applicants, although it was clear
30 from the Department’s RFP document, and in particular from
12
1 paragraph 19, that these were preconditions to entry to the
2 evaluation proper. Mr. Andersen may be in a position to
3 assist the Tribunal in relation to this particular point.
4 More generally, the reconciliation of any degree of
5 inconsistency as between the competition as designed, on
6 the one hand, and the Evaluation Model, on the other, as
7 well as the resolution of any difficulties of evaluation
8 inherent in the competition as designed, are matters that
9 the Tribunal wishes to explore with Mr. Andersen in his
10 evidence.
11
12 On the evidence before the Tribunal to date, it was not the
13 intention of the Project Group that the substantive
14 evaluation should be delegated to Andersens. At the same
15 time, Andersens did attend virtually all meetings of the
16 Project Group and certainly all those convened during the
17 critical period of evaluation in September and October
18 1995, and the Tribunal will wish to return to certain of
19 these meetings with Mr. Andersen in order to obtain an
20 understanding of how he and other Andersen Consultants
21 understood the evaluation process to have unfolded,
22 including for the purposes of identifying when precisely
23 certain conclusions were arrived at or decisions taken and
24 by whom.
25
26 The Tribunal will also wish to hear Mr. Andersen in
27 relation to his understanding of Andersen’s role in
28 relation to the Department and in relation to the Project
29 Group. In particular, what was Mr. Andersen’s appreciation
30 of the precise responsibilities of Andersens in the
13
1 evaluation process vis-a-vis both the Department and
2 vis-a-vis the Project Group? How, if at all, did that role
3 evolve or change over the course of the evaluation?
4
5 Andersens emerged as winners of the tender process, among
6 other reasons because of the level of fees which they
7 nominated for their services in their tender document which
8 was based on work actually undertaken subject to a ceiling
9 of £297,450. However, during the course of the evaluation
10 process, and indeed commencing a short time after the
11 closing of the information round and before the critical
12 work of evaluation commenced, Andersens renegotiated
13 upwards its professional fees in connection with the
14 evaluation of bids. Andersens contended that the ceiling
15 fixed in June, 1995, in their consultancy agreement with
16 the Department, should not apply in circumstances where six
17 applications rather than the maximum of five that had been
18 expected by Andersens had been received and where certain
19 features of the applications received rendered them less
20 readily comparable, necessitating more work. In order to
21 ensure that Andersens would be in a position to stand over
22 the result that emerged, the Department eventually agreed
23 to a significant fee increase whereby the fee ceiling was
24 increased to £370,000.
25
26 The relevance of these fee negotiations and of their
27 outcome to the role and remit of Andersens, including any
28 changed role or remit, is a matter that the Tribunal wishes
29 to explore in evidence with Mr. Andersen. In particular,
30 the Tribunal will wish to address the question of the
14
1 degree to which, if any, the terms of engagement of
2 Mr. Andersen in the final stages of the evaluation process
3 may have altered by reason of the outcome of these
4 negotiations.
5
6 The evaluation process entailed that the quantitative
7 evaluation would precede the qualitative evaluation and
8 that effectively the qualitative evaluation would emerge
9 from an analysis of the quantitative. The ranking that
10 emerged from the quantitative, contrary to what had been
11 anticipated in the Evaluation Model, proved to be very
12 different to the ranking that ultimately emerged from the
13 qualitative. Notably, consortium A5, Esat Digifone, which
14 eventually was to emerge as the winner of the qualitative
15 evaluation, ranked, at best, third, and, in one version,
16 fourth, which was indeed the final version of the 2nd of
17 October, to which some reference has been made in
18 submissions here this morning, in the three versions of the
19 quantitative results generated by Andersens.
20
21 In circumstances and for reasons which will have to be
22 revisited with Mr. Andersen but which are far from clear, a
23 decision was taken to abandon the separate quantitative
24 assessment and the results of that separate assessment.
25 Some of the quantitative results were, it seems, ultimately
26 processed as part of the qualitative evaluation but in a
27 manner which was markedly different from that which was
28 envisaged in the Evaluation Model. The Evaluation Model,
29 in the end, did not entail the three-step process
30 described; namely, a quantitative evaluation followed by a
15
1 qualitative, followed by the revisiting of the quantitative
2 and the interplay between the quantitative and qualitative
3 to produce a result.
4
5 The final report presented only the outcome of a
6 qualitative evaluation. No quantitative report was
7 appended to the Evaluation Report, as was originally
8 envisaged.
9
10 The Tribunal is anxious to hear Mr. Andersen’s evidence on
11 the reasons for this important change to the evaluation
12 process and how exactly it came about. What were the
13 precise circumstances and reasons for the abandonment of
14 the quantitative evaluation, if abandoned it was? How did
15 the work on the quantitative side feature, if at all, in
16 the final analysis? And was it really the case that the
17 entire quantitative analysis was unreliable? Was the final
18 set of quantitative results ever produced, or, if so, were
19 they ever received by the Department? Who took the
20 decisions and on whose recommendation, if any, to alter the
21 evaluation process as it was implemented and where and when
22 were those decisions taken? A related question is: Who
23 was responsible for the reasons advanced in the final
24 report for the abandonment of the quantitative analysis and
25 for the recasting in the report of the original intended
26 role of the quantitative analysis?
27
28 There are a number of other important technical matters
29 bearing on the evaluation process, and potentially
30 affecting its outcome, in respect of which Mr. Andersen’s
16
1 evidence may be important. These are, in some cases,
2 interrelated, and in many cases, require a detailed
3 knowledge of the evaluation process that cannot be readily
4 summarised in the time available to me this morning. They
5 include the following:
6
7 1. The decision taken in mid-September 1995 to concentrate
8 on the three top-ranked applications as they were then
9 emerging, leaving the three other applications out of the
10 further evaluation, in particular in circumstances where
11 there appears to have been no pre-qualifying test; that is,
12 no basis upon which any applicant could have been excluded
13 from evaluation once it had been admitted to the
14 competition.
15
16 2. The circumstances and reasons for the relevant
17 sub-group not proceeding in the manner envisaged with a
18 qualitative analysis of the financial key figures
19 dimension.
20
21 3. The circumstances and reasons for not proceeding to
22 evaluate the so called “other aspects,” being the risks and
23 sensitivity elements. It appears that this was identified
24 at a late stage in the competition as a way of proceeding,
25 otherwise than is provided for in the evaluation model in
26 the event that agreement on ranking could be reached on the
27 basis of the four aspects scored.
28
29 4. The decision to arrive at a provisional ranking by
30 reference to a grand total of marks, and, further, how that
17
1 grand total was arrived at.
2
3 5. The decision to carry out what appears, from the
4 evidence heard, to have been an ad hoc exercise whereby the
5 performance of the two top-ranked applicants were compared,
6 the methodology applied in that exercise, and the manner in
7 which that exercise came to influence the analysis and
8 tables contained in the final report and in appendices and
9 to influence the eventual outcome.
10
11 As part of this last-mentioned inquiry, an extremely
12 important set of particular questions arises as to whether
13 a meeting took place as between departmental officials and
14 Mr. Andersen in Copenhagen on the 28 September, 1995.
15 Mr. Andersen has asserted that no such meeting took place,
16 despite the evidence of officials in relation to that
17 meeting.
18
19 It was the evidence that the Tribunal has heard in that
20 regard that Mr. Andersen, Mr. Martin Brennan and Mr. Fintan
21 Towey concluded the evaluation and determined a ranking in
22 the overall process at that meeting of 28 September, 1995,
23 by an ad hoc comparison of the performance of the two
24 top-ranked applicants based on the qualitative assessment.
25 If such an analysis took place, the Tribunal wish to
26 inquire as to who advocated this approach and was such
27 analysis appropriate and, if appropriate, was it reliable?
28
29 6. The Tribunal will wish to inquire into the methodology
30 applied to the analysis of the financial key figures
18
1 dimension, whether Andersen’s were responsible for it and
2 degree of knowledge and input of the seconded accountants
3 to this element of the evaluation, if any?
4
5 7. The switching on the qualitative side of the scoring
6 system from a wide grading based on marks of A, B, C, D and
7 E, to a more narrow and inflexible numerical scoring system
8 based on scores of 1, 2, 3, 4 and 5.
9
10 8. The application of a weighting matrix to the resulting
11 numerical scores.
12
13 9. The application of a weighting matrix in respect of the
14 “credibility of business plan” criterion of equality
15 weightings of 10:10:10 rather than weightings of 15:10:7.5,
16 and the reasons for this. In this regard, if the original
17 weighting had been applied or even the relative importance
18 of the dimensions respected within a revised cumulative
19 weighting for this qualitative criterion, a question arises
20 as to the consequences for the overall ranking.
21
22 Finally, the circumstances in which these revised
23 weightings came to be identified in the final report as the
24 pre-closing date agreed weightings for quantitative
25 purposes.
26
27 A particular question is what consideration, if any, was
28 given to requesting further information from applicants in
29 order to resolve any difficulties encountered or with a
30 view to letting participants know of changes in the
19
1 evaluation process. Alternatively, to what extent could it
2 be said that the original evaluation model remained valid;
3 was there a need, in the circumstances, to reconstitute the
4 competition?
5
6 Cutting across most, if not all, of these technical
7 questions, is the question of the relative roles of the
8 Project Group, of particular elements within the Project
9 Group and within the Department, and of Andersens. How did
10 information pass and what matters and developments were
11 reported between the persons responsible for the evaluation
12 as the process evolved? Having adopted and agreed on a
13 particular methodology, why was this abandoned in favour of
14 a different methodology, adopted only after applications
15 had been considered and evaluated?
16
17 The Tribunal will also wish to explore with Mr. Andersen
18 the final stages of the evaluation process leading to the
19 eventual result. Amongst other matters, Mr. Andersen may
20 be in a position to assist the Tribunal in relation to
21 when, if at all, the Project Group arrived at a consensus
22 on the final result or recommendation on the basis of what
23 information and by reference to what particular version or
24 versions of the evaluation report. One question which
25 remains unclear is whether a full copy of the report was
26 even available when the matter was brought to Government on
27 25 October, 1995.
28
29 Mr. Andersen may also be able to help the Tribunal in
30 understanding how questions and doubts concerning
20
1 membership of consortia and the financial standing of their
2 members were approached and resolved. In particular, it
3 appears that certain revisions to the second draft report
4 made on the day the result was announced introduced the
5 notion of “bankability” as a solution to the negative
6 equity and financial frailty of Communicorp, the Denis
7 O’Brien side of the Esat Digifone consortium. Where did
8 this notion originate, from Andersens or the Department,
9 and what was its significance?
10
11 was Mr. Andersen aware of work carried out by the seconded
12 accountants in reviewing the financial analysis at a very
13 late stage of the process that might have affected the
14 overall ranking of applications and what was the response
15 of Andersens and of the Project Group to the specific
16 changes proposed by those accountants? Did Andersens take
17 responsibility for the financial analysis contained in the
18 report, as apparently insisted on by the accountants?
19
20 Furthermore, when did Andersens regard the process as
21 having been concluded? When did Mr. Andersen sign off on
22 his involvement with the evaluation process and did he
23 expect to be further consulted before the winner was
24 announced on 25 October, 1995? Did Mr. Andersen regard the
25 work of the Project Group as having been completed at the
26 last formal meeting of the Project Group that he attended
27 on the 23rd of October, 1995? Was he aware of conflicts
28 within the Project Group as to what remained to be done?
29 When and how did Mr. Andersen become aware that the
30 Minister wished to accelerate the announcement of the
21
1 result, and was this a course which he recommended?
2
3 As already mentioned, the purpose of the inquiry is not to
4 rerun the second GSM competition or to reassess the
5 applications of the various candidates; the purpose of the
6 Tribunal’s inquiry is to endeavour to establish to what
7 extent the competition was conducted as originally
8 envisaged. In this respect, the Tribunal has already
9 examined and will wish to reconsider the extent to which
10 the competition was interfered with or capable of being
11 interfered with or influenced by outside considerations,
12 and, in particular, by any involvement or influence of
13 Mr. Michael Lowry. What the Tribunal has already examined,
14 and will now wish to consider, is to the extent to which it
15 is relevant — in the course of Mr. Andersen’s evidence, is
16 the extent to which the process was susceptible to
17 influence. The Tribunal will also wish to consider the
18 extent to which deviations from the evaluation model made
19 the process vulnerable to, or even more susceptible to
20 interference.
21
22 All of these matters, and the more general interaction of
23 Andersens and of Mr. Michael Andersen himself with
24 departmental officials, leading to the final version of the
25 evaluation report, are relevant to the wider questions
26 under inquiry, as to whether the evaluation of the second
27 GSM competition was objectively robust and impregnable, as
28 Andersen’s involvement was intended to ensure, and as to
29 whether the promise of a structured and verifiably fair
30 process, as free from unduly subjective or arbitrary
22
1 considerations as could be achieved, was, in fact,
2 delivered in the circumstances.
3
4 By the time it had been indicated to the Tribunal that
5 Mr. Andersen might be available to give evidence many years
6 after his assistance was first sought, the Tribunal had
7 already disposed of the evidence connected with the second
8 GSM process and had proceeded to the stage, in November
9 2008, of issuing provisional findings. It had considered
10 extensive and, in many cases, helpful submissions based on
11 those provisional findings, and had, moreover, heard
12 evidence arising from, or in other ways connected with,
13 those provisional findings. Despite the fact that
14 Mr. Andersen’s belated availability was bound to markedly
15 extend the duration of the Tribunal and to increase
16 significantly its costs, as has also been the case with the
17 belated appearance of Mr. Christopher Vaughan, the Tribunal
18 felt that, having regard to his extensive role in the
19 process, his evidence should be taken and would be likely
20 to be worthwhile. Prior to learning of his eventual
21 availability as a witness, the Tribunal had extensive
22 previous contact with Mr. Andersen. To put that contact in
23 context, it should be noted that at all times in the course
24 of the Tribunal’s proceedings since its inquiries into the
25 GSM process commenced, Mr. Andersen had been furnished with
26 the relevant books made available to other affected
27 persons, plus the Tribunal’s books used in the course of
28 its hearings, and these were updated as appropriate from
29 time to time in the course of hearings, and, of course, he
30 had access to the Tribunal’s website, to its Opening
23
1 Statement and to the various rulings made by the Sole
2 Member from time to time. He had also been provided with
3 the relevant Tribunal provisional findings and had been
4 afforded an opportunity to make submissions thereon, which
5 he availed of in December 2008.
6
7 Up until 16 March, 2005, the Tribunal corresponded with
8 Mr. Andersen through his Danish solicitors, Messrs.
9 Bech-Bruun, who are based in Copenhagen, and, in
10 particular, with Mr. Carsten Pals of that firm. By letter
11 of that date, 16 March, 2005, the Tribunal was informed
12 that future correspondence should be addressed to
13 Mr. Andersen directly. Thereafter, for a number of years,
14 the Tribunal corresponded, as requested, variously with
15 Mr. Andersen himself or with Mr. Pals of Bech-Bruun in
16 response to specific letters from him. The Tribunal’s
17 provisional findings were sent to Mr. Andersen directly by
18 letter of the 18th November, 2008, and his submissions,
19 received under cover of a letter of 12 December, 2008, were
20 furnished through a company with which Mr. Andersen was
21 associated.
22
23 The Tribunal first learned of Mr. Andersen’s availability
24 through Messrs. Meagher & Co, solicitors acting for
25 Mr. Denis O’Brien. This was by letter of 14 April, 2010,
26 in which they had enclosed a copy of a statement stated to
27 have been made by Mr. Andersen with a view to his making
28 himself available as a witness at the Tribunal’s sittings.
29 This letter was copied to all affected persons in the
30 Tribunal’s proceedings by Messrs. Meagher and also to the
24
1 Attorney General. Within a matter of hours of the Tribunal
2 receiving this statement on the 14th of April, it was clear
3 from press references to the content of it that it had been
4 made available to the media. This ultimately prompted a
5 series of queries from the Tribunal concerning breaches of
6 confidentiality, to which reference will be made. At this
7 stage, it is important to state that the Tribunal was
8 surprised that, despite having previously dealt with
9 Mr. Andersen through his Irish lawyers, subsequently,
10 extensively through his Danish lawyers, and directly with
11 himself, that what would appear to have amounted to a
12 change of heart on his part as regards attending to give
13 evidence should have been communicated not by Mr. Andersen
14 himself but through solicitors for Mr. Denis O’Brien.
15
16 At that point, a newspaper report in The Irish Times
17 indicated that Mr. O’Brien was not paying Mr. Andersen’s
18 costs. The Tribunal has recently confirmed that this
19 statement was made by an official spokesman for
20 Mr. O’Brien. On receipt of Messrs. Meagher’s letter of 14
21 April, 2010, the Tribunal sought to communicate with
22 Mr. Andersen himself directly. The Tribunal’s
23 correspondence at that point was directed to establishing
24 whether Mr. Andersen was willing to make himself available
25 as a witness, whether what had been relayed to the Tribunal
26 as his statement was, in fact, to be viewed as his
27 statement, and whether there were any conditions attaching
28 to his attendance as a witness.
29
30 In this Opening Statement, it is not proposed to trace in
25
1 detail the history of all of Mr. Andersen’s dealings with
2 the Tribunal in connection with the giving of evidence, but
3 it seems fair to say that while, initially, he provided
4 certain assistance to the Tribunal and attended meetings
5 with members of the Tribunal legal team, principally in the
6 early months of 2002, ultimately he declined to make
7 himself available as a witness, citing a number of
8 obstacles which, despite the Tribunal’s best endeavours, it
9 was unable to overcome. Ultimately, when it appeared that
10 the Tribunal might have been in a position to persuade
11 Mr. Andersen to give evidence, he sought an indemnity from
12 the State as opposed to from the Tribunal itself
13 indemnifying him and associated companies.
14
15 It must be stated that since July of 2003, the Tribunal has
16 undertaken to be responsible for Mr. Andersen’s costs, and
17 by letter of 29 July, 2003, the Tribunal informed him that
18 it would meet his legal costs, his travel, accommodation
19 and other expenses incidental upon his intending to give
20 evidence and the costs of his time in travelling to and
21 from Dublin, of attending meetings with members of the
22 Tribunal legal team and of attending to give evidence. The
23 duration of the Tribunal’s dealings with Mr. Andersen with
24 a view to seeking to secure his attendance as a witness,
25 extended over many years. When the Tribunal, therefore,
26 took matters up with him once again in April 2010, on
27 receipt of Messrs. Meagher’s letter of 14 April, 2010, it
28 was anxious, in the first instance, to establish the
29 precise position with regard to his requirements in
30 connection with his attendance to give evidence in the
26
1 shortest possible time.
2
3 In the course of its initial dealings with Mr. Andersen
4 concerning these and related matters, the Tribunal was
5 requested to confirm that Mr. Andersen’s evidence would be
6 confined to his role in the second GSM process and that the
7 history of or background to his attendance, or, as the case
8 may be, his non-attendance over a number of years, would be
9 excluded. Despite the Tribunal’s reservations concerning
10 such an approach, having regard to the fact that the
11 statement furnished to the Tribunal by Messrs. Meaghers and
12 referred to extensively in media coverage had alluded to
13 dealings with the Tribunal in terms which reflected
14 negatively on the Tribunal, it was felt that in order to
15 expedite his attendance and to obtain what was hoped would
16 be significant assistance in relation to the substance of
17 the GSM process, to accede in part to this request. The
18 Tribunal accordingly confirmed that the primary focus of
19 Mr. Andersen’s examination would be on the substance of the
20 GSM process and his involvement in it, but pointed out that
21 questions relating to the background to his attendance or,
22 as the case may be, his non-attendance over a number of
23 years, could arise either from his own evidence or from
24 evidence elicited as a result of cross-examination by
25 counsel for other parties, and that, in those
26 circumstances, the Tribunal could not be precluded from
27 referring to that history and background.
28
29 The Tribunal’s dealings with Mr. Andersen’s lawyers
30 pertained, in addition to the foregoing matters, to a
27
1 number of other issues, as follows:
2
3 1. The question of costs.
4 2. The question of the impact of provisional findings.
5 3. Questions relating to Mr. Andersen’s claim for costs in
6 respect of what he claimed was his assistance to the
7 Tribunal over a number of years prior to his making himself
8 available as a witness.
9
10 Mr. Andersen, through his lawyers, asserted repeatedly that
11 he was not setting conditions for his attendance. The
12 Tribunal pointed out that it viewed Mr. Andersen as having,
13 in the past, set conditions, most significantly the
14 requirement for an indemnity as a precondition to his
15 attendance. The characterisation of his previous attitude
16 to making himself available as a witness was not accepted
17 by Mr. Andersen.
18
19 Between Messrs. Meagher’s letters of 14 April, 2010, and 11
20 August, 2010, a date the significance of which will be
21 referred to in a moment, there were, in all, 25 letters by
22 way of exchange of correspondence between the Tribunal and
23 Mr. Andersen or lawyers acting for him. In all, some 12
24 letters were sent to the Tribunal by or on Mr. Andersen’s
25 behalf. During that period, the Tribunal had sought to
26 establish Mr. Andersen’s availability, and, on 3rd June,
27 2010, proposed taking his evidence over two weeks,
28 commencing on 1 July, 2010. Mr. Andersen rejected this
29 date, indicating that it was a holiday month in Denmark,
30 and instead proposed to make himself available from 25
28
1 October, 2010. The course of that correspondence pertains
2 specifically to queries from the Tribunal surrounding the
3 circumstances in which confidential dealings between
4 Mr. Andersen and the Tribunal came to be made available to
5 the Tribunal by Messrs. Meagher & Co, Mr. Denis O’Brien’s
6 solicitors, and also to the circumstances in which that
7 statement of 13 April, containing confidential information,
8 was made available to third parties and to the media. In
9 responding, Mr. Andersen, through his solicitors, asserted
10 that he had not had any dealings with the Irish media. The
11 Tribunal sought confirmation on whether he had had any
12 dealings concerning that matter with any other individuals
13 and, if so, the Tribunal requested details of those
14 dealings.
15
16 In response on 11 August, 2010, it was stated that
17 Mr. Andersen had not discussed or provided any information
18 concerning his dealings with the Tribunal to any individual
19 with whom he did not believe he had what he described as a
20 legal professional relationship, and informed the Tribunal
21 that one such individual was Mr. Tom Reynolds. Mr. Tom
22 Reynolds is a solicitor with Digicel Limited and is an
23 associate of Mr. Denis O’Brien. At this point,
24 Mr. Andersen informed the Tribunal that Messrs. Meagher and
25 Company, Mr. O’Brien’s solicitors, were acting for him in
26 providing a copy of his statement to the Tribunal. He
27 further stated that, when providing the statement, he did
28 not do so on the basis that it was confidential. He stated
29 that his statement was signed by him on 13 April, 2010, and
30 it was sent on that day to Mr. Carsten Pals of Bech-Bruun,
29
1 who reviewed it, and it was also sent to Mr. Tom Reynolds.
2 He stated that he was not aware of who took care of
3 providing the statement to Messrs. Meagher, Solicitors, for
4 onwards distribution to the Tribunal.
5
6 In the course of the aforementioned exchange of
7 correspondence, the Tribunal sought an express commitment
8 from Mr. Andersen that he would conform to the Tribunal’s
9 confidential procedures. This was in the light of an
10 earlier statement he had made reserving his right to
11 communicate as he saw fit. In response to the request that
12 the Tribunal set out its confidentiality procedures, the
13 Tribunal stated as follows:
14
15 “Communications between the Tribunal and your client,
16 including your firm on behalf of your client, is
17 confidential. Your client is under no obligation to
18 provide the Tribunal with information or responses to
19 queries as part of its private confidential engagement with
20 him. It is only as a witness at public sittings or on foot
21 of an order for discovery or production that he can be
22 compelled to provide responses to queries. Any responses
23 provided in the course of his confidential exchanges with
24 the Tribunal will be considered with a view to
25 incorporating them in a Memorandum of Intended Evidence.
26 Your client will have an opportunity of correcting or
27 altering any such memorandum should it fail to reflect his
28 confidential communications. The Tribunal looks forward to
29 receiving your client’s confirmation and that of Messrs.
30 Bech-Bruun, that they have to date and will continue to
30
1 abide by this confidentiality. In particular, your client
2 should confirm that he had not provided and will not
3 provide any such documentation, material or information,
4 including the subject matter and/or substance thereof, to
5 any person other than his legal advisors. The Tribunal
6 naturally assumes that you and your firm will abide by the
7 confidentiality protocol as outlined above and will be
8 grateful to receive your confirmation in this regard.”
9
10 By letter of 30th July, 2010, Mr. Andersen’s solicitors
11 wrote to the Tribunal confirming that they had obtained
12 instructions from Mr. Andersen authorising them to confirm
13 that he had not breached the Tribunal’s confidentiality
14 rules to date and that he undertook to honour them going
15 forward.
16
17 In light of Mr. Andersen’s solicitor’s confirmation on his
18 behalf that he had not breached the Tribunal’s
19 confidentiality procedures and that he would not do so in
20 the future, the Tribunal was surprised that he had
21 indicated that he had communicated with Mr. Tom Reynolds
22 and that in informing the Tribunal of those dealings and
23 indeed in having done so belatedly, the Tribunal was
24 surprised that he should have described himself as having a
25 legal professional relationship with Mr. Tom Reynolds, who,
26 although a qualified solicitor, is employed by Digicel
27 Limited, and was not, as far as the Tribunal was aware, in
28 practice either in Ireland or Denmark, and was at all
29 times, in connection with these matters, in the employment
30 of a company associated with Mr. Denis O’Brien.
31
1
2 The Tribunal wrote to Mr. Andersen’s solicitors again on 13
3 August, 2010, expressing its concern that he should have
4 disclosed details of his confidential dealings with the
5 Tribunal to a third party, specifically to Mr. Tom
6 Reynolds, and that, moreover, he should have felt able to
7 assert that he believed he had a legal professional
8 relationship with Mr. Tom Reynolds. The Tribunal,
9 therefore, sought further information concerning those
10 dealings and particularly the circumstances of his dealings
11 with Mr. Tom Reynolds. In response, his solicitors
12 asserted that Mr. Andersen, through his Danish lawyer,
13 Mr. Carsten Pals, was approached by Mr. Reynolds on behalf
14 of Mr. O’Brien in furtherance of the latter’s desire that
15 Mr. Andersen give evidence. His lawyers informed the
16 Tribunal that despite the fact that Mr. Andersen believed
17 that his relationship with Mr. Tom Reynolds was protected
18 by legal professional privilege, Mr. Tom Reynolds did not
19 give legal advice to Mr. Andersen and simply facilitated
20 the provision of his statement to the Tribunal. It was
21 stated that Mr. Reynolds merely assisted Mr. Andersen in
22 the logistics of supplying the statement of the 13th of
23 April, 2010, and that the information disclosed to
24 Mr. Reynolds was merely the contents of the statement; that
25 other than the logistics, the statement was the work of
26 Mr. Andersen alone. The Tribunal was informed that
27 Mr. Reynolds had contacted Mr. Pals on the 8th of April,
28 2010.
29
30 In a subsequent letter of 6 September, 2010, further
32
1 information was provided in response to further queries
2 from the Tribunal concerning Mr. Andersen’s dealings with
3 Mr. Tom Reynolds. On this occasion, the Tribunal was
4 informed for the first time that Mr. Tom Reynolds met with
5 Mr. Andersen and his lawyer, Mr. Pals, and discussed the
6 possibility of his, Mr. Andersen, attending to give
7 evidence. This meeting, the Tribunal was told, took place
8 on 9 April, 2010, and the Tribunal was informed that it
9 lasted two-and-a-half hours, and that, at the meeting, the
10 content of a preliminary statement drafted by Mr. Andersen
11 was discussed, together with the possibility of
12 Mr. Andersen giving evidence with an indemnity from
13 Mr. O’Brien.
14
15 The Tribunal was also informed that, as a result of this
16 meeting, Mr. Andersen finalised the statement in the
17 following days, which was pursued by Mr. Pals’ office, and
18 was subsequently sent to Mr. John Bruel, who had been an
19 associate of Mr. Andersen’s in Andersen Management
20 International, and was then furnished to the Tribunal by
21 Mr. Meagher, Mr. O’Brien’s solicitor, as it was described,
22 as offered by Mr. Reynolds.
23
24 This was the first time that the Tribunal was informed that
25 an indemnity had been provided by Mr. Denis O’Brien to
26 Mr. Andersen. The indemnity was described as being
27 contained in a letter from Mr. O’Brien to Mr. Andersen
28 dated 13 April, 2010, which was, in fact, the same date as
29 that on which Mr. Andersen’s statement was sent by e-mail
30 to Mr. Tom Reynolds. In Mr. Andersen’s solicitor’s letter
33
1 of 6 September, 2010, Mr. Andersen stated that the
2 indemnity letter was confidential and that he required
3 Mr. Denis O’Brien’s consent to its release to the Tribunal.
4
5 The letter of 6 September, 2010, was in response to a set
6 of queries from the Tribunal, one of which sought details
7 of all assistance rendered by or on behalf of or by any
8 person associated with Mr. Tom Reynolds to Mr. Andersen in
9 what Mr. Andersen had described as the logistics of
10 furnishing a statement to the Tribunal and bearing in mind,
11 in particular, that Mr. Andersen had, since 2003, been
12 represented in his dealings with the Tribunal by the same
13 Danish lawyer, Mr. Carsten Pals of Bech-Bruun and also
14 requesting that Mr. Andersen identify the apparent
15 obstacles to the furnishing of the statement to the
16 Tribunal directly which Mr. Tom Reynolds had been capable
17 of assisting him in overcoming. In response, it was stated
18 that Messrs. Bech-Bruun were not established in this
19 jurisdiction and that Mr. Andersen had not appointed Irish
20 advisors and that Mr. Pals had advised him to take
21 advantage of the offer from Mr. Reynolds to facilitate the
22 furnishing of his statement to the Tribunal.
23
24 The Tribunal wrote to Mr. Andersen’s solicitors by letter
25 of 15 September, 2010, which is addressed to Mrs. Caroline
26 Preston of Maples and Calder,
27
28 “Re Tribunals of Inquiry.
29
30 “Your client: Mr. Michael Andersen.
34
1
2 “Dear Mrs. Preston,
3
4 “I refer to your letter dated 6 September, 2010, in
5 response to the Tribunal’s letter of 24th August, 2010. I
6 am instructed to respond as follows:
7
8 “The Tribunal has already addressed the terms of its
9 confidentiality procedures at considerable length in
10 previous correspondence.
11
12 “You suggest in your letter under reply that it seems
13 extraordinary that the Tribunal should take an adverse view
14 of the assistance rendered to your client by Mr. Tom
15 Reynolds as the Tribunal had itself failed to secure the
16 attendance of Mr. Andersen as a witness. You are incorrect
17 in your suggestion that the Tribunal has taken an adverse
18 view of this matter. The Tribunal is quite properly
19 concerned at this development and is pursuing
20 investigations. That apart, I am instructed to inform you
21 that the Tribunal believes that what you state is, quite
22 frankly, a nonsensical distortion of the true position.
23 Your client declined to give evidence to the Tribunal from
24 2002 to April 2010, despite the Tribunal’s endeavours to
25 meet his conditions, because he was not provided with a
26 State indemnity. Some five months after the Tribunal was
27 informed by Mr. Denis O’Brien’s letters that your client
28 was, in fact, willing to attend, it now transpires that
29 that willingness was based on the provision of an indemnity
30 by Mr. O’Brien.
35
1
2 “You have now informed the Tribunal that the interaction
3 between your client and Mr. Reynolds went beyond a contact
4 between Mr. Reynolds and Mr. Carsten Pals, your client’s
5 Danish solicitor, in early April 2010, but extended to a
6 two-and-a-half [hour] meeting between Mr. Reynolds,
7 Mr. Pals and your client, on 9 April, 2010, at which the
8 contents of ‘a preliminary statement drafted by
9 Mr. Andersen’ were discussed, together with a possibility
10 of your client giving evidence, with an indemnity from Mr.
11 Denis O’Brien. Whilst you assert that there was no mystery
12 surrounding that meeting, you will, of course, recognise
13 that it was not disclosed to the Tribunal until receipt of
14 your letter under reply.
15
16 “It seems to the Tribunal that the information now
17 disclosed may also be at odds with your letter dated 20th
18 August, 2010, when you informed the Tribunal, on behalf of
19 your client that ‘Mr. Reynolds assisted Mr. Andersen in the
20 logistics of supplying the statement of 13 April, 2010, and
21 the ‘information disclosed’ to Mr. Reynolds is contained in
22 the aforesaid statement. Other than the logistics, the
23 statement was the work of Mr. Andersen alone.’
24
25 “Please now furnish the Tribunal with a copy of the
26 ‘preliminary statement drafted by Mr. Andersen’ that was
27 discussed with Mr. Reynolds at the meeting of 9 April,
28 2010, together with all drafts or versions of your client’s
29 statement, or any part thereof, whether generated by your
30 client or any other person. Please also provide the
36
1 Tribunal with any note, attendance or transcript made of
2 that meeting and any documentation (whether in electronic,
3 hard text or other form) relating to all of his dealings
4 with Mr. Reynolds.
5
6 “The Tribunal has noted that the indemnity provided to your
7 client by Mr. O’Brien is contained in a letter dated 13
8 April, 2010. You state that the letter is confidential and
9 that whilst your client has no difficulty in waiving that
10 confidentiality and providing it to the Tribunal, he
11 requires Mr. O’Brien’s consent, and that you assume that
12 the Tribunal will request that from him. The Tribunal does
13 not intend to protract matters further, and as you have
14 already been in correspondence with Mr. O’Brien’s
15 solicitors, the Tribunal takes it that you will have no
16 difficulty in requesting them to confirm Mr. O’Brien’s
17 position in that regard. If Mr. O’Brien’s waiver cannot be
18 obtained, the Tribunal will, of course, facilitate matters
19 by making an order for production of that document.
20
21 “The Tribunal also wishes to obtain full details of all
22 financial arrangements, whether by indemnity or otherwise,
23 made between your client and Mr. Denis O’Brien, or any
24 other person on his behalf or between your client and any
25 other person, connected in whatsoever fashion with any or
26 all of the past or prospective assistance provided or to be
27 provided by your client to the Tribunal, including your
28 client’s attendance as a witness.
29
30 Finally, you refer to a letter dated 28 August, 2007, in
37
1 which you state that your client and some of the AMI
2 consultants drew the Tribunal’s attention to what you
3 suggest was an error in a ruling of the Sole Member made on
4 17 July, 2010, and you state that no response was received
5 from the Tribunal to that letter. The Tribunal has no
6 record of receipt of any letter from your client, or his
7 solicitors, of that date.
8
9 “The Tribunal would accordingly welcome a full response to
10 this request within the next seven days.”
11
12 Now, Mr. Andersen’s solicitors replied by letter of the
13 17th of September in the following terms:
14
15 “Dear Mr. Brady,
16
17 “Our client: Mr. Michael Andersen.
18
19 “We refer to your letter of 15 September, 2010.
20
21 “There is nothing inconsistent between that which was
22 stated in our letter of 9 April, 2010, and in the letter
23 under reply. The ‘preliminary’ statement to which we
24 referred is the statement which was furnished to you by
25 Messrs. Meagher. We described it thus because we
26 anticipate a fuller statement being furnished by
27 Mr. Andersen in due course. There was no draft or other
28 version of this statement. There is no other documentation
29 which relates to that meeting. For clarity, we confirm
30 that the entire meeting took approximately two-and-a-half
38
1 hours. Mr. Reynolds attended for approximately
2 three-quarters of an hour and the balance was spent with
3 Mr. Andersen and Mr. Pals reviewing the statement.
4
5 “We have no difficulty with seeking consent from
6 Mr. O’Brien to the production of the letter of 13 April,
7 2010. We have written to his solicitors in this regard.
8
9 “We enclose herewith a copy of the letter of 28 August,
10 2007, as requested.
11
12 “We again call on you to furnish us with the documentation
13 upon which the Tribunal intends to rely during the course
14 of Mr. Andersen’s evidence.”
15
16 On the following Monday morning, 20 September, 2010, an
17 article appeared in The Irish Times newspaper referring to
18 an interview provided to that newspaper on the previous
19 day, Sunday, 19 September, 2010, in which Mr. Denis O’Brien
20 stated that he had provided an indemnity to Mr. Andersen,
21 but that the indemnity was limited to his costs.
22
23 This was the first reference by Mr. O’Brien or a
24 representative of his to such an indemnity and appeared to
25 suggest that the earlier statement by his official
26 spokesman made on 15 April, 2010, was made in circumstances
27 where that spokesman may not have been informed of the
28 indemnity. Later on the morning of 20 September, Messrs.
29 Meagher & Co, solicitors for Mr. O’Brien, wrote to the
30 Tribunal, in a letter which was not in response to any
39
1 correspondence from the Tribunal, stating that, on their
2 client’s instructions, they were enclosing a copy of an
3 indemnity between their client and Mr. Michael Andersen
4 dated 13 April, 2010. The copy of the letter from
5 Mr. O’Brien to Mr. Andersen dated 13 April, 2010, furnished
6 by Messrs. Meaghers, carried a date-stamp indicating that
7 it had been received by them on 20 September, 2010. From
8 separate correspondence between the Tribunal and Messrs.
9 Meagher & Co., Solicitors, it would appear that that firm
10 had not been informed of the indemnity until that date.
11
12 By this date, the Tribunal had been in correspondence with
13 Mr. Andersen for four months concerning the details of the
14 arrangements for his costs and had, as already stated,
15 undertaken, since 2003, to be responsible for his costs.
16 However, it is important to state that the indemnity deals
17 in part only with the payment of costs and, in fact,
18 contains a much wider general indemnity from Mr. O’Brien to
19 Mr. Andersen in respect of his interaction with the
20 Tribunal whereby Mr. O’Brien undertakes personally to
21 indemnify Mr. Andersen in relation to any personal
22 liability that might attach to him arising from sworn
23 evidence given by him to the Tribunal.
24
25 It embraces any personal exposure and/or exposure by
26 companies in which Mr. Andersen held a controlling
27 interest, to legal liability from legal proceedings taken
28 by third parties that might arise pursuant to evidence
29 given by him to the Tribunal or arising from statements
30 provided by him to the Tribunal. It is, therefore, in
40
1 terms, as ample in its ambit as the indemnity sought by
2 Mr. Andersen from the State in 2003 and it is equivalent to
3 it.
4
5 By letter of 20 September, 2010, the Tribunal wrote to
6 Mr. Andersen indicating that, in the circumstances, it had
7 found it extremely difficult to place reliance on
8 information with which it had been furnished by him
9 regarding his dealings with Mr. O’Brien’s associate, Mr.
10 Tom Reynolds, and informing him that the Tribunal intended
11 to pursue inquiries to get to the bottom of those dealings.
12 It will be recalled that the Tribunal, in response to
13 Mr. Andersen’s earlier suggestions, made on 12 May, 2010,
14 that his examination be confined to his substantive
15 involvement in the GSM process, had agreed that the primary
16 focus of the examination would be so confined, subject to
17 the qualifications already mentioned. That position could
18 no longer obtain in light of the information which had
19 emerged concerning Mr. Andersen’s dealings with Mr. Tom
20 Reynolds and the fact that he had obtained from Mr. Denis
21 O’Brien what amounted to a secret indemnity, an indemnity
22 which was kept not only from the Tribunal but from
23 Mr. O’Brien’s own lawyers and, it seems, from his own
24 public relations representatives.
25
26 When the Tribunal was first informed of Mr. Andersen’s
27 availability as a witness by Messrs. Meagher & Co.,
28 solicitors for Mr. O’Brien, a letter was written by them
29 dated 14 April, 2010, which was copied to a number of
30 interested parties, including the Attorney General, and
41
1 which asserted that the Tribunal had been misleading in
2 suggesting that Mr. Andersen was not available as a
3 witness, a reference to the Tribunal’s earlier
4 understanding, repeatedly stated in its proceedings, that
5 Mr. Andersen was not available except on the terms of an
6 undertaking from the State. Mr. Meagher has confirmed to
7 the Tribunal that he was not aware of the indemnity
8 furnished by his client to Mr. Andersen on 13 April, 2010,
9 the day before he wrote that letter, on what can only be
10 taken to have been the instructions of his client, and,
11 needless to say, he could not have written that letter or
12 made the accusations in it to the effect that the Tribunal
13 had misrepresented Mr. Andersen’s position, had he known of
14 the fact of that indemnity.
15
16 Whilst it is still the Tribunal’s intention that
17 Mr. Andersen’s examination should be focused mainly on his
18 substantive involvement in the second GSM process, the fact
19 of his dealings with Mr. Tom Reynolds, in particular the
20 fact that these were comprised in a secret agreement
21 between himself and Mr. O’Brien, may have to be taken into
22 account ultimately in assessing the weight of his evidence.
23 In this connection, it should be borne in mind that the
24 Tribunal had initially intended to take Mr. Andersen’s
25 evidence in July of this year and that, had his evidence
26 been given at that point, the Tribunal would have been
27 entirely unaware of the indemnity or of Mr. Tom Reynolds’
28 role in either of the provision of the indemnity or in the
29 genesis of Mr. Andersen’s statement. From the information
30 made available to the Tribunal by Mr. Andersen to date, it
42
1 has not been possible to establish, with any degree of
2 accuracy, the circumstances in which Mr. Andersen’s
3 statement of 13 April, 2010, came to be produced, as to the
4 respective roles of Mr. Andersen and his own lawyers, on
5 the one hand, and of Mr. Tom Reynolds, on the other, in the
6 generation of that statement.
7
8 CONCLUSION OF OPENING STATEMENT
9
10
11
12
13
14
15
16
17