The Court of Appeal has partly allowed appeals by State defendants and Denis O’Brien over changes to a long-running claim concerning the award of Ireland’s second GSM mobile phone licence in 1995. It varied a High Court order that had allowed the plaintiffs to amend their statement of claim, limiting the amendments to claims anchored in alleged corruption of the tender process by the Minister.
The proceedings were brought by Persona Digital Telephony Limited and Sigma Wireless Networks Limited. They allege that the Minister interfered in the competition so that Esat Digifone would win, and that O’Brien, then its chairman, engaged in wrongful conduct connected with the award. These are allegations in the pleadings, not findings made in this appeal. The case was before the Court of Appeal on whether proposed amendments to the statement of claim should be allowed; the court did not decide the underlying liability or whether the allegations were true.
The plaintiffs sought to amend their claim after the 2011 Moriarty Tribunal report. The State defendants and O’Brien objected, citing delay, prejudice and the introduction of claims that went beyond the original case. The appeal court said the earlier Supreme Court decision allowing the proceedings to continue despite delay rested on the case’s distinctive central allegation: corruption at the highest level. The court found that the amendments could not turn the proceedings into an ordinary challenge based on procurement irregularities unrelated to corruption.
The court nevertheless allowed detailed allegations about how the evaluation process was conducted to remain in the amended pleading where the plaintiffs say those matters illustrate or evidence corruption by the Minister. It directed changes to the wording and headings to make that focus clear. It said claims based on ordinary evaluation errors, without a connection to alleged corruption, would amount to new claims and should not be permitted.
The court also allowed the plaintiffs to pursue a claim for restitution for unjust enrichment against O’Brien and to seek an account of profits. It found that the amended pleading sufficiently set out a claim that he was enriched through alleged wrongful conduct, while leaving questions about limitation periods and laches for the trial judge. Allowing those claims does not establish that they will succeed.
The court concluded that delay alone did not justify refusing the amendments in the circumstances, and that no specific prejudice had been shown in relation to the corruption claims. It allowed the appeals in part and varied the High Court order. It directed that the amended statement of claim, as altered in accordance with its judgment, be served, and said the parties should then proceed without further delay beyond that permitted by court rules.