The High Court has ordered Denis O’Brien to list and produce for inspection 1,239 documents supplied to him by the Moriarty Tribunal, finding that any continuing confidentiality was outweighed by the need for a fair hearing.
The order was made on 27 January 2025 by Ms Justice Emily Egan, in a judgment amended on 20 February. It resolves the plaintiffs’ application for further and better discovery in litigation over the award of Ireland’s second GSM mobile phone licence. The case itself remains ongoing; the court did not decide the underlying claim.
Persona Digital Telephony Limited and Sigma Wireless Networks Limited claim that the tender process was corrupted and that, without the alleged interference, their associated consortium would have won the licence. The licence was awarded to Esat Digifone in 1996. These are the plaintiffs’ allegations, not findings made in this discovery application.
The Tribunal investigated the award and published its report in 2011. The judgment recounts that the Tribunal found Mr Lowry had secured Esat’s winning tender and that payments and other benefits from or on behalf of Mr O’Brien were referable to Mr Lowry’s conduct of the GSM process. Justice Egan stressed that the Tribunal’s conclusions are inadmissible in the present case. Their truth and the parties’ underlying claims remain for the trial court to determine.
Under a 2023 discovery order, Mr O’Brien was required to disclose documents in 22 categories. He withheld documents supplied to him by the Tribunal, saying they had been provided confidentially. A schedule later identified 1,239 documents still subject to that claim. The judge said his earlier affidavits had not properly listed and described the withheld material. She ordered a supplemental affidavit to do so.
The parties asked the court to treat the application as one for inspection. The judge found that the documents were within the discovery order, related to the tender competition, and had been circulated in the Tribunal’s public sitting books. She said the broad circulation and age of the material reduced the weight of the confidentiality claim, and found no compelling reason that disclosure would harm the work of the Tribunal or future inquiries.
The court concluded that withholding the documents would risk placing the plaintiffs at an unfair disadvantage, particularly because other parties had received the sitting books. It ordered both a supplemental affidavit of discovery and production of the disputed documents for inspection. It did not rule on the documents’ authenticity or admissibility, or on the merits of the plaintiffs’ case.