Sunday 18 March 2018

Supreme Court clears way for legal action on licence

Tim Healy

TWO unsuccessful bidders for the State's second mobile phone licence can bring legal actions over how the licence was awarded to Esat Digifone, a five-judge Supreme Court has found.

If the two mobile phone consortiums prove they were "damnified by corruption at the highest level of government and public administration" in how it was awarded, justice requires they must be compensated, one of the judges said.

Mr Justice Adrian Hardiman said the integrity and reputation of Ireland, as well as the rights of the consortiums, requires trial of their claims of "covert, devious and concealed" corruption despite the State's opposition to any such trial.

The consortiums were alleging fraud, deceit and corruption against the State itself; a government department; the minister who then headed that department, Michael Lowry; and Denis O'Brien.

The companies were alleging the corruption took the form of promised and actual covert payments -- "bribes in a word" -- from the businessman or vehicles controlled by him to the minister or in his interests, the judge said.

"Such things, if true, would be utterly disgraceful, destructive of the reputation of both the briber and the person bribed."

Corruption of this sort, if proved, would be both a civil wrong and a criminal offence, "not to mention a commercial and political disgrace of the highest order", he said. "It would disgrace the nation and the State."

Another judge, Mr Justice Frank Clarke, said if the consortiums' claims were established in court, they would be "amongst the most serious factual determinations" made by an Irish court since the foundation of the State.

All five judges agreed yesterday, in the "truly unique" and "absolutely unprecedented" circumstances of the actions brought by the unsuccessful applicants for the 1995 licence, the inordinate delay in advancing them was excusable and the interest of justice required the cases should proceed.

The judges found the delay was excusable on grounds the consortiums were entitled to await the outcome of the 13-year Moriarty Tribunal and could not have prosecuted the claim without material obtained by the tribunal. They also ruled that the state parties had failed to establish that they were prejudiced by the delay.

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