A Supreme Court judge would allow appeals by Comcast International Holdings and Persona Digital Telephony and refuse the State’s applications to end their cases over the award of Ireland’s second GSM mobile phone licence. In a judgment delivered on 17 October 2012, Mr Justice Hardiman concluded that the plaintiffs’ delay was excusable. The motions concerned delay and want of prosecution; the court was not deciding whether the allegations were true.
The companies were among unsuccessful bidders for the licence, awarded to Esat Digifone in 1996. Their civil proceedings allege that then minister Michael Lowry improperly influenced the tender process in favour of Esat, and that payments or benefits from businessman Denis O’Brien were connected to the award. The claims include fraud, deceit, misfeasance in public office and corruption. The judgment states that none of these allegations had been proved in a legal forum.
The State defendants argued that the cases should be dismissed because of the plaintiffs’ delay, including the time taken to deliver a statement of claim. The plaintiffs said they needed evidence from the Moriarty Tribunal, which investigated payments to Lowry and later examined the licence award. They maintained that the alleged conduct was concealed and that the Tribunal’s compulsory investigative powers produced evidence they could not otherwise obtain. The Tribunal’s findings could not establish the facts in the civil cases, but the plaintiffs argued that its publicly heard evidence could help them prove their claims.
Hardiman said the State knew the plaintiffs intended to await Tribunal evidence. He considered that waiting reasonable in the unusual circumstances, noting that the Tribunal’s work took far longer than originally estimated and that no specific prejudice to the defendants had been shown. Applying the test in *Primor plc v. Stokes Kennedy Crowley*, he concluded that because the delay was excusable, there was no basis to dismiss the proceedings and no need to assess the balance of justice.
The judgment was an appeal from a 2007 High Court order dismissing the actions against the State defendants. Hardiman would allow the appeals and refuse the relief sought in both motions. This was a judgment by one Supreme Court judge; the source does not state the court’s overall disposition. The cases were therefore not resolved on their merits by this judgment.