The High Court has dismissed notices by State defendants seeking indemnity and contribution from BT Communications Ireland Ltd (BTCIL) in proceedings over Ireland’s second GSM mobile telephone licence.
The judgment, delivered by Ms Justice Stewart on 31 July 2018, concerns two actions brought in 2001 by Comcast International Holdings Incorporated, Declan Ganley, Ganley International Limited and GCI Limited. The plaintiffs had sought declarations that decisions in the tender process were invalid. They were part of a bidding group that lost to Esat Digifone.
The motions were brought by BTCIL, formerly Esat Telecommunications Limited, after the plaintiffs’ claim against it was dismissed by consent in 2014. The State defendants had served notices of indemnity and contribution in 2013. BTCIL argued that the consent order and the Civil Liability Act 1961 left no basis for those claims. The State defendants said their claims could include recovery of profits allegedly connected to the licence award and could not be assessed before discovery.
Justice Stewart rejected the State defendants’ argument that notices of indemnity and contribution could not be struck out under Order 19, rule 28 of the Rules of the Superior Courts. She found the court had jurisdiction to apply that rule to the notices. She declined to strike them out under that rule because the State claims were at an early stage and had not yet been fully articulated.
But the judge dismissed the claims under the court’s inherent jurisdiction. She found that the State defendants’ proposed claims—including indemnity or contribution outside concurrent wrongdoing, constructive trust and unjust enrichment—could not proceed within the plaintiffs’ case. Some formulations were disconnected from the relief sought by the plaintiffs; others were unsustainable or an abuse of process in that setting. The judgment said the State defendants could potentially pursue a claim in separate proceedings, but that question was not before the court.
The court also held that the 2014 consent order dismissing the plaintiffs’ claim against BTCIL constituted a release for the purposes of the 1961 Act. On the facts and law considered in this application, section 35(1)(h) meant the State defendants’ concurrent-wrongdoer claims against BTCIL were bound to fail. The judge said fresh notices could be issued if a specific future scenario arose, including the consent order being set aside.
The ruling did not determine the underlying allegations about corruption, BTCIL’s involvement in the tender process or the parties’ ultimate liability. Justice Stewart noted that final determinations on those issues remained for a plenary hearing. She also rejected the claim that BTCIL’s delay in bringing its motions was inordinate.