Mobile phone licence appeal ruling reserved

The Supreme Court has reserved judgment on appeals by two unsuccessful bidders for the State’s second mobile phone licence aimed at allowing them proceed with actions challenging the manner in which the licence was allocated in 1995 to Esat Digifone.

The State in Jun 2007 secured orders from the High Court stopping separate actions by two consortia — Comcast International Holdings Incorporated and Persona Digital Telephony Ltd.

Both consortia had in 2001 initiated actions against the State, the Minister for Public Enterprise, Esat Digifone and its former chairman Denis O’Brien, in which they challenged the licence award and claimed millions of euro in damages.

The High Court had agreed to the State’s application to halt the proceedings against it 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 is “parked” pending the outcome of the consortia’s appeals to the Supreme Court against the halting of their cases against the State.

A five-judge Supreme Court yesterday reserved judgment on the three-day hearing of those 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.

Brian O’Moore, counsel for Comcast, said the State’s argument that they could have provided a statement of claim before the tribunal reported was akin to asking his side “to look at the web without looking at the spider in the centre of it”.

This was not a situation where this case ever went away and died, he added. There could be no doubt the State was always aware the tribunal would be a source of information for his clients.

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

The challenges were initiated in 2001 but in 2007, Mr Justice Paul Gilligan ruled there was inordinate and inexcusable delay in bringing and prosecuting the actions. Given those and other factors, he ruled the balance of justice required they should not be permitted 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. While it had been argued the plaintiffs were monitoring the Moriarty Tribunal hearings into the licence award and awaiting its outcome, this wasn’t a valid excuse for the delay, he said.

The delay, he found, had caused moderate prejudice to the State defendants and significantly undermined the prospect of a fair trial in that memories of events in 1995 would have been dimmed.