RULING (17th July 2007) 1. One of the matters referred to in the Tribunal’s Ruling of 29 th September, 2005 was my view, subject to any submissions that might be made, that in dealing with certain technical aspects of the GSM Process it would be of value to have the evidence of an expert and that on that basis it was proposed to introduce evidence from Dr. Peter Bacon. Dr. Bacon is the principal of Messrs. Peter Bacon & Associates and has particular expertise and experience of competition processes and the application of scoring mechanisms in the conduct of such processes. 2. The evidence Dr. Bacon was in a position to give related to limited aspects of the mechanics of the GSM Process, focusing mainly on the approach adopted to the use of numerical indicators in the calculation of the scores of the individual applicants. It is important to state now, as has already been stated, that Dr. Bacon was not being asked to conduct an audit of the GSMII Process. Nor was he being asked to evaluate the applications of the various applicants with a view to expressing an opinion as to whether the correct result was reached by the evaluators. 3. In the Ruling of 29th September, 2005 the Tribunal also dealt with the question of the absence of Mr. Michael Andersen and indicated that notwithstanding Mr. Andersen’s apparent unwillingness to give evidence or otherwise to further assist the Tribunal, it nonetheless proposed to complete and report upon relevant matters pertaining to the second GSM Competition. Following the Ruling Mr. Denis O’Brien instituted High Court Judicial Review proceedings seeking various 1 forms of relief primarily in regard to what had arisen relating to both Mr. Andersen and Mr. Bacon. In a written judgment of 21st December, 2005 Quirke J., refused each of the reliefs sought. Mr. O’Brien appealed that decision to the Supreme Court. That Appeal was heard and dismissed by the Supreme Court on 30 th May, 2006, Denham J., stating in an ex tempore decision that “having considered the Applicant’s submission and Respondent’s written submissions, the decision of the High Court and the considered Ruling of the Respondent, the Court is of the view that there is no case to answer, for the reasons given by the High Court and is satisfied that the application should be dismissed and the judgment of the High Court affirmed.” It was following this Ruling that written submissions (having already been invited by the Tribunal) were received regarding the prospect of the Tribunal calling Dr. Bacon as a witness. They have proved to be of considerable assistance. They have prompted a detailed reappraisal by the Tribunal of the proposal to adduce the evidence of Dr. Bacon and of the value of such evidence in advancing the Tribunal’s task in finding facts pursuant to its Terms of Reference. All of the submissions were to the effect that Dr. Bacon’s evidence should not be adduced. A variety of reasons were put forward in support of these submissions. Whilst not accepting all such submissions or the reasoning upon which they were based, because I have determined to accede to the thrust of what is being contended for, I need only briefly refer to them at this point. 4. On behalf of Telenor it was contended that the question was not whether the GSM2 Process was perfect, but whether any improper political influence or intervention in it was disclosed, that no expert could help the Tribunal in that exclusively conferred function, least of all one not involved at the time, and that in any event Mr. Bacon’s expertise was as a macro economist without significant expertise in 2 relation to GSM competitions or in evaluating competitive tenders generally. On behalf of Mr. O’Brien it was acknowledged that since the challenge in the High Court and the Supreme Court had been unsuccessful, the issue of whether or not to call Mr. Bacon was to be determined by the Tribunal, but that the Tribunal should not waste any further time or money in seeking to introduce, through Mr. Bacon, evidence that merely sought to second guess Mr. Michael Andersen; further that Mr. Bacon had had no actual involvement in the process, could only testify as an expert and had neither the requisite qualification nor independence to warrant giving such evidence. Mr. Dermot Desmond and International Investment & Underwriting objected to the introduction of any evidence from Mr. Bacon unless and until this could be shown to be connected to some wrongdoing on the part of Mr. Michael Lowry as Minister and submitted that since no evidence was to hand of any such wrongdoing on the part of Mr. Lowry, or of Andersen Management International, the evidence should not be introduced; that Mr. Bacon lacked the relevant experience, and that such evidence was irrelevant, unnecessary and likely to delay further the completion of the relevant part of the Tribunal Report. 5. In a short and cogent submission on behalf of BTI and O2, the successors of ESAT Digifone, it was indicated that whilst Mr. Bacon may have been of assistance to the Tribunal in equipping it with a certain insight into technical matters, this was to be distinguished from putting Mr. Bacon’s views, as contained in his January, 2005 Report, into evidence as constituting expert evidence. Reference was made to the decision of the Supreme Court of South Australia in R. v. Bonython (1984) 15 ACR 364, a case which not merely remains binding in Australia, but which was stated in the most recent edition of Phipson on Evidence as having generally set forth the legal position accepted in 3 the Courts of England and Wales. In particular reliance was placed on the following passage from the judgment of King CJ: “Before admitting the opinion of a witness into evidence as expert testimony, the Judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subject upon which expert evidence is permissible. This first question may be divided into two parts, (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which of the witness would render his opinion of assistance to the Court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issue before the Court”. Citing these tests, it was contended that Dr. Bacon’s Report did not constitute expert evidence in as much as (however skilled or experienced Dr. Bacon was) his views merely reflected the application of ordinary tests of rationality to the conduct of the process or reasons given by participants in the process for their having acted in one way or another. The view contended for is that the process, or at least the portion of it addressed in Dr. Bacon’s Report and in some of the Tribunal’s evidence, is not impenetrable to the intelligent layman; that it is the Tribunal’s view of the conduct of the process as evidenced by 4 the witnesses involved that matters, not the views of a witness, notwithstanding that witnesses expertise or experience. In other words, the area of inquiry not being so impenetrable as to be incapable of being comprehended by an ordinary intelligent layman it would be wrong to accord a special status to Dr. Bacon’s views, the status normally accorded to the views of an expert. In this regard, the Tribunal has also had regard to some of the general principles applicable in this area as set out in the well known case of Davie v Edinburgh Magistrates, (1953) SC 34 and other more recent cases including Conley v Strain (1998) IR 62, DK v PH (otherwise TK) and JWH (otherwise W) v GW unreported, 1998, matrimonial cases referred to in McGrath on Evidence. 6. The area to which Dr. Bacon addressed himself in his Report has in the main already been covered during the course of questioning pursued either by Tribunal Counsel or other Counsel. I accept the view that the area in question, the scoring process, although complex is not impenetrable. It has been submitted that Dr. Bacon is simply expressing a view as to what the Project Team responsible for the process should rationally or reasonably have done when confronted with different sets of circumstances that he infers they were confronted with; that he has merely expressed a view as to what the demands of rationality required of the Project Team from time to time. While I would reject any notion that Dr. Bacon was not a person of skill and experience in the areas to which he addresses his comments, I accept that the evidence proposed to be given is not expert evidence in the narrow sense canvassed in Bonython above. I now think it preferable that conclusions regarding the conduct of the process should be left to submissions, if any, in due course. 5 7. In conclusion, on this aspect, it would be wrong not to acknowledge the assistance of Dr. Bacon in affording the Tribunal a technical insight in relation to the line of questioning already being pursued by the Tribunal and in particular, in enabling the Tribunal to exclude from any consideration, as an indicator of possible interference or intervention in the process by the Minister or any outside party, the change in the manner of the measurement and scoring of IIR. It will be recalled that this appeared to have benefited certain applicants but on the basis of the evidence elicited, it has been possible for the Tribunal, with the benefit of the insights afforded by Dr. Bacon to dispel the notion that this resulted other than purely fortuitously. 8. Apart from indicating a determination in regard to Dr. Bacon it is desirable to refer to an additional matter which arose in the course of the aforesaid Judicial Review proceedings. This relates to a number of associates of Mr Michael Andersen who had worked with him in the course of evaluating the various applications for the GSM 2 licence, in respect of whom it had been indicated to the High Court that the Tribunal was prepared to adduce evidence, provided this was reasonably practicable and that such evidence proved relevant. The Tribunal has corresponded with Mr Tage Iversen, Mr Jon Bruel, Mr Ole Federsen and Mr Michael Thrane to ascertain whether any of them would be prepared to assist the Tribunal and to attend to give evidence at its public sittings. The Tribunal offered to be responsible for their reasonable expenses, however none of the individuals mentioned above have so far been prepared to attend. All are reluctant to become involved and have indicated either an unwillingness or an inability to assist. At the same time, the Tribunal will continue with steps to endeavour to procure their assistance although it should be stated that the prospects of obtaining any or any relevant evidence from any of these individuals appear extremely remote. It should also 6 be noted that Mr Marius Jacobsen is deceased and that the Tribunal has to date been unable to obtain any contact details for Mr Mikel Vinter, despite a request for assistance in this regard to Mr Michael Andersen to which no response was received. 7