Wednesday 25 April 2018

Denis O'Brien entitled to additional details over mobile phone licence claim, court rules

Businessman Denis O'Brien. Photo: Tony Gavin
Businessman Denis O'Brien. Photo: Tony Gavin

Tim Healy

BUSINESSMAN Denis O'Brien is entitled to certain additional details about a claim by a company suing over the awarding of the country's second mobile phone licence, the High Court ruled.

Mr O'Brien had claimed he needed greater particulars about losses which a consortium says it incurred as a result of what it claims was the allegedly corrupt process in awarding that licence.

US-registered Comcast International Holdings, businessman Declan Ganley, Ganley International and GCI Ltd are suing the State, the Minister for Public Enterprise, former Communications Minister Michael Lowry who awarded the licence and Mr O'Brien and his company which won the licence, Esat Telecommunications.

Comcast/Ganley were 70 per cent shareholders in a consortium called Cellstar which came sixth out of the six bidders for the licence.

The proceedings were initiated 16 years ago, five years after the award of the licence.

Jim O'Callaghan SC, for Mr O'Brien, asked Mr Justice Richard Humphreys to order Comcast/Ganley to furnish better details of its claim in order that the case could proceed as quickly as possible.   Without it, he said, it could make the case "go on for another 16 years".

His side was seeking that Comcast/Ganley particularise the losses it said it made including details of some US$2million it says it spent on the tender process and management time involved in that. 

Also sought were better details of the loss of profits and opportunity Comcast/Ganley is claiming.

Mr O'Brien was just one of the shareholders in the winning licence bidders,, counsel said.  He was the majority shareholder of the Esat Telecom Holdings Lt ((ETHL) holding a 37.5 interest in the winning bidder.  The other interests were held by Telenor (37.5 per cent) and IIU (25 per cent).

Esat was sold to British Telecom (BT) in 2000, counsel said.

In those circumstances, his client needed better replies to requests for details of the claim and its extent.

In its absence, it will lead to further litigation seeking discovery of the these matters which could mean having to seek documentation from parties like BT and going back to operations in 1995/96.   Discovery will be much more lengthy and expensive, Mr O'Calalghan said.

His side was "left in this vacuum" where it cannot ascertain the amount of the claim or even caculate it based on the "broad replies" it had received so far.

There was no reason why Comcast/Ganley could not employ a financial expert to do this, he said.

Paul Sreenan SC, for Comcast/Ganley said Mr O'Brien was the only one of the defendants who had taken issue with the replies for particulars of the claim which had been provided by his side.

The reason was that Mr O'Brien could then say if better replies were not provided an application would be made to strike out the case which would lead to further appeals and delays.

His side had given details as best they can. 

It was well known on the O'Brien side that a figure in the region of €1 billion in losses was the value of the case but it was not necessary for him to know the precise basis on which it was claimed as it would be a matter for the trial.

Mr O'Brien's side was in breach of superior court rules which require that a defence had to be first put in and the defendant had not put in an amended defence as was required to an already amended statement of claim, Mr Sreenan said.   The defendant could put in such an amended defence by simply denying any loss and damage.

Mr O'Callaghan said his application should not be dismissed on the basis of as technical breach of the rules.  

Mr Justice Humphreys ruled Comcast/Ganley should provide a broad outline of the basis on which it claims loss of profit and opportunity and how it was calculated. 

The information already provided in relation to the costs of tendering for the licence were sufficient to meet the case, he said.

However it would shorten matters later on if Comcast/Ganley would provide some further details as to how the tender was put together, he said.

He urged all parties to "move matters on" given the 16-year vintage of the case and so that it could go ahead sooner rather than later.

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