The High Court has ruled on competing discovery motions in a long-running case over Ireland’s second GSM mobile phone licence, ordering the State to disclose documents about the tender process and requiring the plaintiffs to make discovery in several disputed categories.
The ruling, delivered by Ms Justice Emily Egan on 12 July 2023, concerns what evidence must be disclosed before trial. It does not decide whether the tender process was corrupted or whether any party is liable.
Persona Digital Telephony Limited and Sigma Wireless Networks Limited allege that the tender process was compromised by then minister Michael Lowry, who they claim abused his public office, accepted payments or benefits from or on behalf of Denis O’Brien or Esat, and interfered to secure the licence for Esat. They say the first plaintiff would otherwise have won, or at least would not have lost the chance to win. The State denies wrongdoing and disputes the plaintiffs’ claims and alleged losses.
The judge rejected the State’s request to strike out the plaintiffs’ discovery motion because they had not sent a formal letter seeking voluntary discovery. She found that, in the circumstances, the purpose of the rule had been met and it was appropriate to decide the motion. She stressed that discovery would not automatically follow the earlier rulings in related Comcast proceedings; each request had to be assessed against the pleadings in this case.
The State must disclose documents generated between 1 January 1990 and 31 December 2002 relating to the design or drafting of the tender documents and evaluation model. The judge found those materials relevant to the parties’ dispute over how the process was designed and how it was later conducted. She also ordered discovery of documents concerning Advent International’s investment in Communicorp, on the condition that the plaintiffs indemnify the State for the costs of making that discovery. The order treats this request as equivalent to non-party discovery because it concerns allegations against O’Brien rather than the State.
The State’s request for documents about the arrangements between the plaintiffs, Motorola, Unisource Mobile and the Electricity Supply Board for bringing the proceedings was allowed without a time limit. The judge found that the State’s pleaded challenge to the plaintiffs’ authority to act for the original tendering consortium made those documents relevant.
For seven other categories covering alleged corruption, wrongful conduct, loss and O’Brien’s role, the plaintiffs had agreed to discovery but sought to limit the period to 1990–2002. The judge refused that limit, finding they had not shown that broader discovery would be disproportionate or unduly burdensome. She listed the matter for final orders and costs on 21 July 2023. The judgment does not state what further orders were ultimately made.