The High Court has allowed Persona Digital Telephony Limited and Sigma Wireless Networks Limited to amend their statement of claim in proceedings over the State’s 1996 award of a GSM mobile telephone licence to Esat Digifone.
In a judgment delivered on 8 May 2019, Ms Justice Pilkington granted the plaintiffs’ application under Order 28 of the Rules of the Superior Courts. She said the amendments were substantial and arose mainly from the Moriarty Tribunal’s 2011 findings. The court was deciding whether the pleading could be amended; it was not determining the underlying allegations or whether the tribunal’s findings proved any facts.
The plaintiffs were unsuccessful competitors for the licence and seek damages and other reliefs, alleging, among other matters, breach of duty, misfeasance in public office, deceit and conspiracy. Those are claims in the proceedings, not findings made in this ruling.
The State defendants opposed the application on grounds including delay and the difficulty of relying on witnesses’ recollections of events before the 1996 award. Denis O’Brien, the fourth named defendant, argued that the new claims came after relevant limitation periods and objected to references to the tribunal’s report and proposed claims for unjust enrichment and an account of profits.
Justice Pilkington considered the period before the Supreme Court’s October 2012 judgment on the earlier strike-out proceedings should not count against the plaintiffs in the same way, saying it was not realistic to expect them to pursue the action pending that determination. She acknowledged later “slippage” and prejudice to the State defendants, but concluded that, in the circumstances, the delay was not excessive and the prejudice did not outweigh the need for the litigation to be heard promptly.
The judge said whether the tribunal’s findings could be relied on in the civil case was more appropriately considered by the trial judge. Whether an unjust-enrichment claim could be advanced would also be for the trial judge. She described the proposed account-of-profits amendment as a refinement of a general claim already in the original pleading.
The case had been struck out for want of prosecution in 2007, but the Supreme Court allowed the plaintiffs’ appeal in 2012. Separate proceedings over the same licence award had been amended without objection from the State defendants, a circumstance the High Court also noted.
The order permits the plaintiffs to amend the statement of claim delivered in 2006. Justice Pilkington said she would hear the parties on any consequential orders, including costs. The ruling does not resolve the underlying claims.