Ruling on mobile phone licence appeals 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 to proceed with actions challenging the way in which the licence was allocated in 1995 to Esat Digifone.

In June 2007 the State secured orders from the High Court stopping separate actions by two consortiums – Comcast International Holdings Incorporated and Persona Digital Telephony Ltd.

Both 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 damages of millions of euro.

The High Court had agreed to the State’s application to halt the proceedings on grounds of inordinate and inexcusable delay. A similar motion by Mr O’Brien to halt the action against him on grounds of delay remains “parked” pending the outcome of the consortiums’ appeals to the Supreme Court against the halting of their cases against the State.

Counsel for both consortiums argued in the Supreme Court that they were entitled to await the outcome of the Moriarty tribunal inquiry into the licence award and could not have prosecuted the claim without that and other material.

Brian O’Moore SC, for Comcast, said the State’s argument that Comcast 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”. There could be no doubt that the State was always aware the tribunal would be a source of information for his clients, he said.

In their substantive actions, the consortiums have alleged fraud, conspiracy, deceit, corruption and misfeasance in public office over 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 them and that the balance of justice required they should not proceed. Mr Justice Gilligan noted that 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 that the plaintiffs were monitoring the hearings of the Moriarty tribunal and were awaiting its outcome, this was not a valid excuse, he said.