Friday 27 April 2018

Denis O'Brien can be added as defendant in Persona action

Tim Healy

BUSINESSMAN Denis O'Brien's position as a "central participant" in an action brought by an unsuccessful bidder against the State over the issuing of the country's second mobile phone licence entitles him to be added as a defendant in the case, the High Court ruled.Mr

Justice Sean Ryan said there was no question as to Mr O'Brien's "centrality to the fundamental issues" in legal actions which have arisen out of the awarding of the licence to the businessman's Esat Digifone consortium in 1996.

The judge said Mr O'Brien was entitled to an order that he be made a defendant, rather than just a third party, in an action being brought by Persona Digital Telephony and Sigma Wireless Networks, members of a consortium which was runner-up in the licence competition.  It claims Esat won the competition by bribing then communications minister Michael Lowry TD.

The case was brought against the Minister for Public Enterprise and the State by Persona and Sigma who had opposed Mr O'Brien's application to be added as a defendant claiming they had a constitutional right to sue whoever they want.   Mr O'Brien and Mr Lowry  were brought in to the case as notice parties on the application of the State defendants.

Mr O'Brien argued if he was not a defendant, he would be at a disadvantage in rebutting the false allegations being made about him by the Persona consortium.   As the party implicitly alleged to be the payer of the bribe, on behalf of Esat, his legal,  proprietary and reputational interest were directly affected, it was argued.

Mr Justice Ryan said yesterday if Mr O'Brien was not joined as a defendant and "left to stand by" as Persona's claim is presented against the State defendants only, he will be "observing a drama unfold in which his is the central participant  but without entitlement to intervene".

The judge also said Mr O'Brien is named as a defendant in similar proceedings being brought by another failed bidder for the licence, the Comcast consortium.  "It is impossible to think that the actions could proceed to a conclusion in which all the questions involved would be effectually and completely decided without him being a leading participant".

There was considerable force to the argument he should be joined as a defendant because Persona alleges he conspired with the minister to achieve a corrupt outcome to the competition, he said.  While Mr O'Brien was not named, he is "implicitly identified", he said.

Joining him as a new defendant was not "an act of indulgence of his wishes" but was in the interests of justice and in seeing that litigation is properly and effectively conducted.  Persona was not obliged to make a case it did not want to make or to change their pleadings to include a claim against an added defendant, he said.

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