The High Court dismissed three civil claims against State defendants over the award of Ireland’s second GSM mobile phone licence, finding that the plaintiffs’ delay was inordinate and inexcusable and that a trial would be unfair. Gilligan J. gave judgment on 13 June 2007.
The claims concerned the 1995 competition won by ESAT Telecommunications Limited. Two actions were brought by Comcast International Holdings Inc., Declan Ganley, Ganley International Limited and GCI Limited. One challenged the decision to extend the tender deadline; the other alleged that the Minister compromised the process and favoured ESAT, including by accepting improper payments. Persona Digital Telephony Limited and Sigma Wireless Networks Limited brought the third action, alleging wrongdoing in the tender process. These were allegations, not findings on the merits.
The State defendants applied to dismiss the claims for delay and want of prosecution, and in the interests of justice. The plaintiffs said they had waited for evidence from the Moriarty Tribunal, which was investigating the licence award. The court held that the Tribunal’s inquisitorial inquiry could not determine the outcome of adversarial court proceedings and did not excuse the delay. Gilligan J. found the delay in prosecuting all three actions both inordinate and inexcusable.
The judge found no specific missing witness or document had been identified. He nevertheless considered that witnesses’ memories would have dimmed and that resolving credibility disputes would be harder, amounting to moderate presumed prejudice. He also considered the State defendants’ failure to respond promptly to the Comcast statements of claim and their delay in bringing the dismissal motion, but gave that inaction limited weight.
Gilligan J. concluded that the balance of justice favoured dismissal. He also considered the separate application based on the court’s inherent jurisdiction, including fair-trial concerns and the passage of time. The court said a trial was unlikely before 2009, about 14 years after the events, and concluded that this would create basic procedural unfairness and undermine the defendants’ ability to have a fair trial.
The order dismissed the plaintiffs’ proceedings as against the State defendants. The judgment does not decide the underlying allegations against the defendants on their merits, and the stated order is limited to the State defendants.