Court halts Esat phone licence actions

The State has won a High Court order halting legal challenges by two unsuccessful bidders for the State's second mobile phone licence to the manner in which the licence was allocated in 1995 to Esat Digifone.

Allegations of fraud, conspiracy, deceit, corruption and misfeasance in public office had been made by two consortiums - Comcast International Holdings Incorporated and Persona Digital Telephony Ltd - in their challenges to the licence award. They had also sought multimillion euro in damages.

Both consortiums initiated legal challenges to the licence award in 2001, but yesterday Mr Justice Paul Gilligan ruled that there was inordinate and inexcusable delay by the plaintiffs in bringing and prosecuting the actions and, given this and other factors, the balance of justice required they should not be permitted to proceed.

In a lengthy and detailed reserved judgment granting the State's motion to dismiss the actions, he noted the second GSM licence was awarded in 1995 and, given his view that it was unlikely the actions would be ready for hearing until 2009, some 14 years would have elapsed between the cause of action and the hearing.

It had been argued the plaintiffs were monitoring the hearings of the Moriarty tribunal into the licence award and awaiting its outcome but this was not a valid excuse for the delay, the judge said. The Moriarty tribunal inquiry was inquisitorial and could have no bearing on the High Court action which was adversarial, he said.

The Moriarty tribunal involved, in essence "an expression of opinion" on matters considered by the tribunal chairman.

In this case, the delay went beyond the minimum which might be considered inordinate and there had been "deliberate tactics" by the plaintiffs to delay the case to benefit their cause of action by awaiting developments at the Moriarty tribunal.

This case, he said, involved a very substantial commercial claim for damages running undoubtedly into many millions of euro and, in addition, people's individual characters and reputations would be subject to the most significant scrutiny which might have a serious impact.

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. While he had found there was "active inaction" by the State defendants in the matter in failing to react to Comcast's delivery of a statement of claim in June 2005 and in not bringing the motion to dismiss the cases earlier, he believed such inaction had no real significance in the particular circumstances of this case, given the plaintiffs' "declared tactics" of not taking any steps in the litigation while the tribunal continued.

The judge also held this was not a case where he should exercise his inherent jurisdiction to allow the case proceed. To do so would give rise to a basic unfairness of procedures and undermine the requirements for a fair and speedy trial.

On that basis, he dismissed the actions against the State and Minister for Public Enterprise.

He adjourned to next month consideration of final orders to be made in the case, when he will also deal with motions by former Esat Digifone chief executive Denis O'Brien to dismiss similar actions against him arising from the licence award.