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
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forms of relief primarily in regard to what had arisen relating to both Mr.
Andersen and Mr. Bacon. In a written judgment of 21st December,
2005 Quirke J., refused each of the reliefs sought.
Mr. O’Brien
appealed that decision to the Supreme Court. That Appeal was heard
and dismissed by the Supreme Court on 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
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relation to GSM competitions or in evaluating competitive tenders
generally. On behalf of Mr. O’Brien it was acknowledged that since the
challenge in the High Court and the Supreme Court had been
unsuccessful, the issue of whether or not to call Mr. Bacon was to be
determined by the Tribunal, but that the Tribunal should not waste any
further time or money in seeking to introduce, through Mr. Bacon,
evidence that merely sought to second guess Mr. Michael Andersen;
further that Mr. Bacon had had no actual involvement in the process,
could only testify as an expert and had neither the requisite
qualification nor independence to warrant giving such evidence. Mr.
Dermot Desmond and International Investment & Underwriting
objected to the introduction of any evidence from Mr. Bacon unless
and until this could be shown to be connected to some wrongdoing on
the part of Mr. Michael Lowry as Minister and submitted that since no
evidence was to hand of any such wrongdoing on the part of Mr.
Lowry, or of Andersen Management International, the evidence should
not be introduced; that Mr. Bacon lacked the relevant experience, and
that such evidence was irrelevant, unnecessary and likely to delay
further the completion of the relevant part of the Tribunal Report.
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
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the Courts of England and Wales. In particular reliance was placed on
the following passage from the judgment of King CJ:
“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
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the witnesses involved that matters, not the views of a witness,
notwithstanding that witnesses expertise or experience.
In other
words, the area of inquiry not being so impenetrable as to be incapable
of being comprehended by an ordinary intelligent layman it would be
wrong to accord a special status to Dr. Bacon’s views, the status
normally accorded to the views of an expert.
In this regard, the
Tribunal has also had regard to some of the general principles
applicable in this area as set out in the well known case of Davie v
Edinburgh Magistrates, (1953) SC 34 and other more recent cases
including Conley v Strain (1998) IR 62, DK v PH (otherwise TK) and
JWH (otherwise W) v GW unreported, 1998, matrimonial cases
referred to in McGrath on Evidence.
6.
The area to which Dr. Bacon addressed himself in his Report has in
the main already been covered during the course of questioning
pursued either by Tribunal Counsel or other Counsel. I accept the
view that the area in question, the scoring process, although complex
is not impenetrable. It has been submitted that Dr. Bacon is simply
expressing a view as to what the Project Team responsible for the
process should rationally or reasonably have done when confronted
with different sets of circumstances that he infers they were confronted
with; that he has merely expressed a view as to what the demands of
rationality required of the Project Team from time to time. While I
would reject any notion that Dr. Bacon was not a person of skill and
experience in the areas to which he addresses his comments, I accept
that the evidence proposed to be given is not expert evidence in the
narrow sense canvassed in Bonython above. I now think it preferable
that conclusions regarding the conduct of the process should be left to
submissions, if any, in due course.
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7.
In conclusion, on this aspect, it would be wrong not to acknowledge the
assistance of Dr. Bacon in affording the Tribunal a technical insight in
relation to the line of questioning already being pursued by the Tribunal
and in particular, in enabling the Tribunal to exclude from any
consideration, as an indicator of possible interference or intervention in
the process by the Minister or any outside party, the change in the
manner of the measurement and scoring of IIR. It will be recalled that
this appeared to have benefited certain applicants but on the basis of
the evidence elicited, it has been possible for the Tribunal, with the
benefit of the insights afforded by Dr. Bacon to dispel the notion that
this resulted other than purely fortuitously.
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
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be noted that Mr Marius Jacobsen is deceased and that the Tribunal
has to date been unable to obtain any contact details for Mr Mikel
Vinter, despite a request for assistance in this regard to Mr Michael
Andersen to which no response was received.
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