The Supreme Court has ruled that damages actions arising from the controversial award of Ireland's second GSM mobile phone licence in 1995 may continue despite years of delay in progressing the cases.
Persona Digital Telephony and a group led by Comcast International were unsuccessful competitors in the licence process won by Esat Telecommunications. Their civil proceedings alleged wrongdoing including misfeasance in public office, deceit and fraud.
The allegations included claims that then minister Michael Lowry received payments from Denis O'Brien in return for influencing the competition in Esat's favour. Mr Justice Clarke stressed that the Supreme Court was not deciding whether those allegations were true.
The High Court had dismissed both cases for delay and because of concern that a fair trial might no longer be possible. The Supreme Court had already announced that the appeals would be allowed; this judgment explained Clarke J.'s reasons.
The plaintiffs had taken about five years after issuing proceedings to deliver their statements of claim. Clarke J. found that delay inordinate and not completely excusable. However, he accepted that the alleged wrongdoing was covert and that the plaintiffs had reasonable grounds to await evidence emerging through the Moriarty Tribunal's compulsory investigative process before attempting to plead detailed claims.
Their main failing was that they did not formally notify the State that they intended to effectively park the litigation while awaiting those developments.
On the other side of the balance, the Minister identified no specific missing witness or lost document. Much of the relevant material had been recorded contemporaneously, and likely witnesses had already given statements and undergone extensive questioning before the tribunal. Clarke J. therefore characterised the prejudice to the State as mild.
Given the partial explanation for the delay, the limited prejudice and the significant public interest in having the allegations determined by a court, the balance of justice favoured allowing both proceedings to continue. The Minister's separate argument that a fair trial was impossible was also rejected.