The High Court has struck out proceedings by Dermot Desmond seeking to reopen earlier High Court and Supreme Court decisions connected with the Moriarty Tribunal’s inquiry into the award of the second GSM mobile phone licence.
Desmond had unsuccessfully challenged the Tribunal in 2003 over its use of the Glackin Report and questioning of witnesses about it. The High Court rejected that judicial review in August 2003 and the Supreme Court dismissed his appeal in January 2004.
Years later, information emerged concerning legal advice obtained by the Department before the licence was awarded to the ESAT consortium. The Tribunal acknowledged in 2010 that it had made two significant errors, including misunderstanding the Attorney General’s position on whether legal advice dealt with changes in the consortium before the licence award.
Desmond then brought fresh proceedings alleging that misleading, inaccurate and untrue evidence had been put before the courts in the earlier judicial review. He sought declarations that those judgments had been obtained by fraud and should be treated as nullities.
Ms Justice Dunne held that the threshold for reopening a final judgment on grounds of fraud is exceptionally high. The claimant must allege deliberate and purposeful dishonesty, knowing and intentional deceit of the court, pleaded with particularity, and the fraud must have affected the earlier decision in a fundamental way.
That threshold was not met. Desmond’s own particulars expressly stated that he was not alleging that the disputed statements were themselves made fraudulently. The material instead showed that the Tribunal and its solicitor, John Davis, had been operating under a mistaken understanding of the legal advice.
The judge also found that the disputed material did not go to the root of the earlier rulings. Those decisions had centred on the relevance and use of the public Glackin Report and on fair procedures.
The court therefore concluded that Desmond’s claim disclosed no reasonable cause of action and was bound to fail.