A High Court judge has agreed to an application from businessman Denis O’Brien to amend a judgment in which she referred to a tribunal concluding there was “corruption at the highest level of Irish politics” during the award of Ireland’s second mobile phone licence.
Last month, Ms Justice Emily Egan gave a ruling in the long running case in which an unsuccessful bidder for the licence, the Persona/Sigma consortium, sued Mr O’Brien, whose Esat Digifone consortium won the licence in the mid 1990s. Persona/Sigma also sued the Minister for Public Enterprise and the State.
Independent TD Michael Lowry, who was communications minister at the time, is a notice party in the case. More recently, Mr Lowry, formerly Fine Gael TD, played a key role in the formation of the present Government, leading talks that yielded ministries for several Regional Independent TDs.
Persona/Sigma claimed in its action that the tender process was corrupted by Mr Lowry, who abused his public office and accepted payments and/or benefits from or on behalf of Mr O’Brien or Esat.
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Mr O’Brien, the State and Mr Lowry deny the claims.
Last month, Ms Justice Egan directed Mr O’Brien to discover certain documents used in the Payments to Politicians (Moriarty) Tribunal which Persona/Sigma said it required in preparation for the full hearing of the case.
Mr O’Brien argued he should not have to provide the material because it was given to him in confidence by the tribunal.
The judge rejected his argument and in doing so she made reference to the findings of the tribunal itself.
She also stated: “The tribunal has carried out its inquiry and has concluded that there was corruption at the highest level of Irish politics which impacted on the award of the GSM [phone] licence”.
Following publication of her judgment Mr O’Brien’s lawyers applied to her to amend it, contending she had made a factual error.
It was argued that it was a matter of fact that no finding of corruption in relation to the second phone licence was made by the tribunal.
Persona/Sigma did not accept that the “corruption” sentence was factually erroneous or that it emerged through inadvertence or oversight. They argued the court, as it was entitled to do, had paraphrased the tribunal’s conclusion.
Ms Justice Egan said she had concluded, from the exchange of correspondence and from submissions from the parties, that it was undisputed that the tribunal did not make an express finding of corruption in relation to the award of the licence “albeit that the plaintiffs contend that, in substance, the tribunal did so find”.
As such, she said, she was satisfied that a correction to the court’s judgment may be made pursuant to this court’s inherent jurisdiction.
She said Mr O’Brien submitted that if the “corruption” sentence alone was removed from the relevant paragraph of the judgment it would not need to be replaced with any other text since the import of the paragraph would remain and it would read coherently without it.
The judge disagreed and said the intention of the relevant sentence was to encapsulate the gravity of the matters investigated and the findings made.
Rather than deleting that sentence, she said Mr O’Brien’s concerns can be met by including the detailed summary of the tribunal’s findings provided by the Supreme Court in a related judgment over the phone licence in 2012.
That summary includes references to Mr Lowry exerting an “insidious and pervasive influence” on phone licence evaluation process and to the making of payments on behalf of Mr O’Brien to Mr Lowry to secure the licence.
It also referred to Mr Lowry acquiring inside information that he disclosed to Mr O’Brien and how Esat could address its financial weaknesses so it would get the licence.
It further said what happened “resulted in the implementation of a process plagued with inadequacies and deficiencies, and in the creation instead of a distorted, renegade version of the originally planned evaluation process”.
The judge directed the full text of the summary should replace the relevant paragraph on the judgment published on the Court Services website.
