Monday 11 December 2017

Supreme Court clears way for unsuccessful Esat Digifone bidders to proceed with actions

Tim Healy

THE Supreme Court has cleared the way for two unsuccessful bidders for the State's second mobile phone licence to proceed with actions challenging the manner in which the licence was allocated in 1995 to Esat Digifone.

Comcast International Holdings Incorporated and Persona Digital Telephony Ltd had initiated separate actions in 2001 challenging the licence award and claiming multi-million Euro in damages.

Both cases are now expected to proceed to hearing in the High Court but it is anticipated neither will be heard before mid 2014 at the earliest.

Comcast's action was brought against the Minister for Public Enterprise, Michael Lowry, the State, Esat Telecom and businessman Denis O'Brien while Persona's proceedings were against the Minsietr for Public Enterprise, Ireland and the Attorney General.

The State parties in June 2007 secured orders from the High Court stopping the case against them on grounds of inordinate and inexcusable delay in prosecuting them.

A similar motion by Mr O'Brien to halt the action against him on grounds of delay was "parked" pending the outcome of the consortia's appeals to the Supreme Court against the halting of their cases against the State.

In the appeals, counsel for both consortia argued they were entitled to await the outcome of the Moriarty tribunal investigation into the licence award and could not have prosecuted the claim without that and certain other material.

A five-judge Supreme Court heard the appeals over three days last week.

Giving the court's decision today, the Chief Justice, Ms Justice Susan Denham, said the court would allow the appeals and give its reasons in a written judgment later.

In their substantive actions, the consortia have alleged fraud, conspiracy, deceit, corruption and misfeasance in public office in relation to the mobile licence award.

In the High Court in 2007, Mr Justice Paul Gilligan ruled there was inordinate and inexcusable delay by the plaintiffs in bringing and prosecuting the actions. On those and other grounds, he ruled the balance of justice required the appeals should not be permitted to proceed.

Mr Justice Gilligan noted the second GSM licence was awarded in 1995 and many years would have elapsed between the cause of action and the hearing of these cases. He also rejected arguments the delay was justified because the plaintiffs were monitoring the hearings of the Moriarty tribunal into the licence award and awaiting its outcome.

The judge said the Moriarty tribunal inquiry was inquisitorial and could have no bearing on the High Court action which was adversaria. The tribunal involved, in essence ``an expression of opinion'' on matters considered by the tribunal chairman, he said.

Lawyers for the State had in 2007, when moving the application to dismiss the actions, complained the consortia's claims had been "left hanging" and impugned the integrity of former Minister Michael Lowry and civil service personnel involved in the licence selection process.

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