The Supreme Court has allowed appeals by Comcast International Holdings and Persona Digital Telephony against the dismissal of three civil actions arising from the award of Ireland’s second GSM mobile telephone licence to Esat Telecommunications in 1995. The proceedings may continue in the High Court.
In reasons delivered on 17 October 2012, Chief Justice Denham said the appellants’ delay in advancing their cases was excusable in the circumstances. The appeals had been heard together in July, and the Court indicated on 17 July that it would allow them. The judgment records Denham CJ’s reasons for that outcome.
The actions were dismissed by the High Court in July 2007 after the State sought to have them struck out for delay and want of prosecution. The appellants had accepted that their delay was inordinate. The Supreme Court considered whether it was also inexcusable under the principles governing dismissal for delay.
Comcast’s two actions concerned the 1995 licensing competition, including the Minister’s decision to extend the tender deadline and the award of the licence. Persona’s action also challenged the process. The statements of claim alleged corruption and other wrongdoing, including that the Minister interfered with the tender process to favour Esat. These were claims in the civil proceedings, not findings made in this appeal.
The appellants said they had waited for the Moriarty Tribunal’s public inquiry into the licence award to develop evidence that could help them particularise their cases. Denham CJ noted that the tribunal was investigating the same events, that the allegations were serious and difficult to particularise, and that the State had taken no active step to advance the court proceedings for several years. The judgment also records the State’s consent to Persona filing its statement of claim within 21 days in March 2006, which Persona did.
Denham CJ found that the Tribunal process had exposed information, documents and witnesses relevant to the civil claims. The appellants had waited for the inquiry’s investigative stages, not its final report. He also noted that the High Court had found no actual prejudice to the State, only presumed prejudice at a moderate level. He considered an analysis of prejudice without specific evidence to be speculative.
Because the delay was excusable, Denham CJ said there were no grounds to dismiss the proceedings and it was unnecessary to decide the balance-of-justice stage of the legal test. He added that, had it been necessary, he would have found the balance favoured allowing the cases to proceed. The ruling did not determine the allegations or award damages; it permitted the claims to continue to a full hearing.