Court allows consortium suing over award of country's second mobile phone licence to amend claim

A consortium suing over the awarding of the country's second mobile phone licence on grounds including bribery and corruption has been permitted by the High Court to amend its original statement of claim.

Persona Digital Telephony and Sigma Wireless Networks' amendments mostly arise out of the findings of the Moriarty Tribunal in March 2011.

Ms Justice Teresa Pilkington rejected an application by the State and businessman Denis O'Brien, who are defendants in the case, to strike out the claim amendment application.

Persona/Sigma is suing the Minister for Public Enterprise, the State and Mr O'Brien over the awarding of the licence to Mr O'Brien's then Esat Digifone consortium in the mid-1990s. Former Fine Gael minister for communications, Michael Lowry, is a third party in the case.

Mr O'Brien claimed allowing the amendment of the original claim would be a "recipe for chaos".

The State opposed it on grounds of delay and the difficulties of witnesses being expected to remember matters that occurred more than 22 years ago.

The Persona/Sigma consortium initiated its case in 2001. Following a number of legal issues and challenges since then, the consortium sought last year to amend the statement of claim.

It was originally claimed, among other things, the licence competition was conducted unfairly and that Esat won because of bribery of the then minister Lowry, now independent TD.

File photo of Michael Lowry.

When the Moriarty Tribunal published its report on the matter in 2011, it made findings adverse to Mr Lowry and Mr O'Brien.

In 2012 the Supreme Court had also overturned a High Court ruling striking out Persona/Sigma's action over delay which meant the case could continue.

Persona/Sigma, which had got the assistance of a UK third party litigation funder to continue its action, then asked the courts to clarify whether this type of funding was legal here. The Supreme Court ruled it was not in 2017.

Persona/Sigma had to resolve their continued funding issue and when this was done, they applied last year to amend the statement of claim against the State and Mr O'Brien.

Against the State, damages were now claimed for, among other things, fraud and causing damage by unlawful means. Against Mr O'Brien, there was a new claim of unjust enrichment and the seeking of account of profits.

In her judgment allowing the amendment, Ms Justice Pilkington said the defendants correctly pointed out that even if the amendment to the claim was refused, this would not stop the case.

It was clear the amendments sought were substantial and most arose from the findings of the Moriarty Tribunal, she said.

Court rules permit any party to alter pleadings on such terms as may be just and for the purpose of determining real questions of controversy.

While there had been certain slippage, the judge could not see, taking the matter as a whole and looking at all the issues to be considered, that the delay was excessive in the unique circumstance of the case.

While there is undoubtedly a prejudice to the State defendants being required to defend proceedings at this remove, it did not outweigh the necessity to ensure the litigation is now heard "and heard speedily".

Regarding Mr O'Brien's claims that he was now expected to defend claims of unjust enrichment, it will be a matter for the trial judge as to whether such a claim can be advanced on the facts of the case. The seeking an account of profits claim seemed to be a "slight refinement" of something that had already been claimed in the case, she said.