The High Court has ordered Denis O’Brien to be added as a co-defendant in a judicial review action arising from the 1996 award of the State’s second GSM phone licence to ESAT Digifone. The order concerns his role in the proceedings; it does not decide the underlying allegations about the licence competition.
Persona Digital Telephony Limited and Sigma Wireless Networks Limited brought the action against the Minister for Public Enterprise, Ireland and the Attorney General. Michael Lowry and O’Brien had already been joined as third parties at the State defendants’ request. O’Brien then applied to be made a defendant, despite the plaintiffs’ objection.
The plaintiffs’ claim alleges, among other matters, that the Minister manipulated the competition and that the licence was secured through bribery and conspiracy. The judgment said the pleadings implicitly identified O’Brien as an alleged actor, although they did not name him as one. These remain allegations in the underlying action, not findings made on this motion.
O’Brien’s counsel argued that being only a third party restricted his ability to answer the plaintiffs’ allegations, including the conspiracy claim. The plaintiffs argued that they were entitled to choose whom to sue, that O’Brien had not shown exceptional circumstances, and that adding him would increase costs and introduce collateral issues.
Justice Ryan said the rules allowed a defendant to be added without a plaintiff’s consent only in exceptional circumstances. He found that O’Brien was central to the issues and that his legal, proprietary and reputational interests could be materially affected by the outcome. The court concluded that the rule’s tests were met, particularly the requirement that O’Brien’s presence was necessary for the court to adjudicate the questions effectively and completely. The motion was not refused on grounds of delay.
The order does not require the plaintiffs to amend their pleadings or pursue a claim against O’Brien. If they do not, he may define which parts of their claim he challenges and file a defence; he will also defend the State’s claim for contribution or indemnity. The judgment noted that his position could include rights to cross-examine the plaintiffs’ witnesses without being exposed to an award in their favour, depending on the plaintiffs’ choice. It did not set out the precise procedural steps to follow the order.