Opening Statement 26th October, 2010



          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.


         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:


         26              Firstly, the identification of the relevant evaluation

         27              criteria, which, in the first instance, was done by the

         28              Department.


         30              Secondly, the identification of an expert consultant to



          1              assist the Department in the running of the competition.


          3              Thirdly, the choice of and design of an evaluation model.


          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.


          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.


         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.


         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.


         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



          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.


          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.


         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.


         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



          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.


         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.


         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.




          1              Paragraph 3 declared that applicants must give full

          2              ownership details for proposed licensee.


          4              Paragraph 9 required applicants to demonstrate their

          5              financial capacity and technical experience and capability

          6              to implement the system if successful.


          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.


         12              And I am just going to quote from that, sir.


         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:


         22              “credibility of business plan and applicant’s approach to

         23              market development;


         25              “Quality and viability of technical approach proposed in

         26              its compliance with the requirements set out herein;


         28              “The approach to tariffing proposed by the applicant which

         29              must be competitive;




          1              “The amount the applicant is prepared to pay for the right

          2              to the licence;


          4              “Timetable for achieving minimum coverage requirements and

          5              the extent to which they are may be exceeded;


          7              “The extent of applicant’s international roaming plan;


          9              “The performance guarantee proposed by the applicant;


         11              And finally, “Efficiency of proposed use of frequency

         12              spectrum resources.”


         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



          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.


          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.


         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.


         29              The key feature of the tender submitted by Andersens was

         30              the recommendation that a dual evaluation technique should



          1              be used embracing quantitative and qualitative evaluation

          2              methods as follows:


          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.


          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.


         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.


         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.


         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.



          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.


          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.


         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.


         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



          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:


          6              (i) market development:  7.5.

          7              (ii) experience of applicant:  10.

          8              (iii) financial key figures:  15.


         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.


         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



          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.


          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.


         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.


         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



          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.


         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.


         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



          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?


          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.


         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



          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.


          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.


         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



          1              qualitative, followed by the revisiting of the quantitative

          2              and the interplay between the quantitative and qualitative

          3              to produce a result.


          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.


         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?


         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



          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:


          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.


         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.


         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.


         29              4.  The decision to arrive at a provisional ranking by

         30              reference to a grand total of marks, and, further, how that



          1              grand total was arrived at.


          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.


         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.


         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?


         29              6.  The Tribunal will wish to inquire into the methodology

         30              applied to the analysis of the financial key figures



          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?


          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.


         10              8.  The application of a weighting matrix to the resulting

         11              numerical scores.


         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.


         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.


         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



          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?


          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?


         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.


         29              Mr. Andersen may also be able to help the Tribunal in

         30              understanding how questions and doubts concerning



          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?


         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?


         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



          1              result, and was this a course which he recommended?


          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.


         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



          1              considerations as could be achieved, was, in fact,

          2              delivered in the circumstances.


          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



          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.


          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.


         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



          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.


         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.


         30              In this Opening Statement, it is not proposed to trace in



          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.


         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



          1              shortest possible time.


          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.


         29              The Tribunal’s dealings with Mr. Andersen’s lawyers

         30              pertained, in addition to the foregoing matters, to a



          1              number of other issues, as follows:


          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.


         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.


         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



          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.


         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,



          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.


          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:


         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



          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.”


         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.


         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.




          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.


         30              In a subsequent letter of 6 September, 2010, further



          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.


         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.


         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



          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.


          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.


         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,


         28              “Re Tribunals of Inquiry.


         30              “Your client:  Mr. Michael Andersen.




          2              “Dear Mrs. Preston,


          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:


          8              “The Tribunal has already addressed the terms of its

          9              confidentiality procedures at considerable length in

         10              previous correspondence.


         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.




          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.


         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.’


         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



          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.


          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.


         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.


         30              Finally, you refer to a letter dated 28 August, 2007, in



          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.


          9              “The Tribunal would accordingly welcome a full response to

         10              this request within the next seven days.”


         12              Now, Mr. Andersen’s solicitors replied by letter of the

         13              17th of September in the following terms:


         15              “Dear Mr. Brady,


         17              “Our client:  Mr. Michael Andersen.


         19              “We refer to your letter of 15 September, 2010.


         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



          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.


          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.


          9              “We enclose herewith a copy of the letter of 28 August,

         10              2007, as requested.


         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.”


         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.


         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



          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.


         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.


         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



          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.


          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.


         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



          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.


         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



          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.


          8              CONCLUSION OF OPENING STATEMENT










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