Path clear for phone licence challenges

The Supreme Court has cleared two unsuccessful bidders for the State’s second mobile phone licence to proceed with a legal challenge to the manner in which the licence was allocated in 1995 to Esat.

Comcast International Holdings Incorporated and Persona Digital Telephony Ltd initiated separate actions 11 years ago challenging the licence award and claimed multimillion-euro in damages. Both cases are expe-cted to proceed to hearing in the High Court but it is anticipated neither will be heard before mid-2014.

Comcast’s action was against the minister for public enterprise, Michael Lowry, the State, Esat Telecom, and businessman Denis O’Brien. Persona’s were against the minister for public enterprise, Ireland, and the Attorney General.

In Jun 2007, the State parties secured High Court orders 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 probe into the licence award and could not have prosecuted the claim without that.

The Supreme Court heard the appeals last week. Yesterday, Chief Justice Susan Denham said the court would allow the appeals and give its reasons later.

In their 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. He ruled that the balance of justice required that the appeals should not 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 inquiry was inquisitorial and could have no bearing on the High Court action which was adversarial. The tribunal involved, in essence “an expression of opinion” on matters considered by the tribunal chairman.

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.