The High Court has ordered discovery of documents across most of the categories sought by the plaintiffs in their long-running challenge to the award of Ireland’s second GSM mobile phone licence. The ruling did not decide whether the alleged wrongdoing occurred or whether the plaintiffs are entitled to damages.
The action concerns the competition that led to the licence being awarded to Esat Telecommunications Limited in 1996. The plaintiffs allege that the tender and licence award processes were compromised, including through improper intervention and payments. The defendants deny wrongdoing. The discovery motions were brought against the State defendants, former Minister Michael Lowry and Denis O’Brien. The action against Esat Telecommunications Limited had been abandoned.
Mr Justice Allen said the plaintiffs’ amended claim also challenged the licence award phase, not only the earlier evaluation of tenders. He rejected the State defendants’ argument that discovery should generally stop at the 25 October 1995 announcement of the preferred bidder. He said the defendants had not provided evidence showing that the broader searches sought would be disproportionately burdensome.
The court ordered discovery in areas including the competing tenders, design and evaluation of the process, communications with bidders, the selection of Esat as preferred bidder, the licence award phase and alleged payments and benefits. It also ordered discovery concerning the alleged financial representations about Advent International’s investment in Communicorp. Some requests were narrowed: for example, documents about the selection and qualifications of project group and consultancy staff were excluded from two categories, and discovery from O’Brien concerning those groups was limited to specified communications involving him or the Esat consortium.
The ruling did not determine the truth of the allegations. The judge said the alleged payments and their routes were contested and described the related documents as central to the case. He also declined to decide whether the expanded claims were time-barred, leaving that issue for a trial judge unless it was raised as a preliminary issue.
The court made no order at this stage on O’Brien’s discovery of documents about the commercial advantage Esat derived from the licence. That part was adjourned until the plaintiffs formulate and particularise their damages claim. The application for electronic inspection and search facilities was also adjourned. The judge said the evidence did not establish whether the State defendants held searchable electronic records; that question could be revisited after their discovery affidavits.
The court directed that counsel address progress on a confidentiality protocol and adjourned the two outstanding elements with liberty to re-enter.