The Court of Appeal has struck out two State parties’ notices seeking indemnity or contribution from BT Communications Ireland Ltd, formerly ESAT Telecommunications Ltd, over claims arising from the 1996 award of a mobile phone licence.
The appeal concerned only those notices, served in 2013. The plaintiffs’ underlying proceedings against the State parties were not decided by this judgment. The court said they may continue to trial, and that the outcome of this appeal would not affect that.
The plaintiffs allege that the licence tender process was compromised by ministerial interference and corrupt payments or benefits. They claim damages including for loss of the opportunity to win the licence, lost operating profits and tender costs. Those remain allegations; this appeal did not determine them.
In 2014, by consent, the plaintiffs’ claims against BT Communications were dismissed as “unsustainable”. The State parties argued that the order was not enough to establish a release or accord under the Civil Liability Act, and that BT Communications should remain in the proceedings so the company’s alleged responsibility could be examined. They also raised possible claims involving tracing, constructive trust and unjust enrichment.
The Court of Appeal held that the consent order recorded an accord and released BT Communications from the plaintiffs’ claims for the purposes of the Act. Under the Act’s identification provisions, the plaintiffs may be treated as responsible for the acts of a released concurrent wrongdoer when the court assesses damages against the remaining defendants. If the State parties establish at trial that BT Communications was a wrongdoer and the extent of its responsibility, the plaintiffs’ damages claim against the State parties may be reduced accordingly.
The court said the notices pleaded only claims for contribution or indemnity under the Act. They did not plead the separate equitable claims later raised in submissions. The State parties had not sought to amend or expand the notices. The judgment leaves open the possibility of separate proceedings on those claims; it did not decide whether they could succeed.
Because the Act bars contribution from a released wrongdoer where the plaintiffs are identified with that wrongdoer’s acts and their damages are reduced accordingly, the notices disclosed no reasonable cause of action. The Court of Appeal dismissed them under Order 19, rule 28 and varied the High Court order, which had struck them out under the court’s inherent jurisdiction. It did not decide the broader equitable arguments or make a final costs order: it stated a provisional view that BT Communications should receive its appeal costs, subject to any objection by the State parties within 14 days.