Consortium to appeal court ruling on phone competition

The Persona consortium has said it will appeal this week's decision by the High Court to throw out its case against the State over the running of the 1995 mobile phone licence competition.

The consortium was seeking substantial damages arising from what it alleged was "dishonest assistance" for the competition winner, Denis O'Brien's Esat Digifone.

On Wednesday, Mr Justice Paul Gilligan ruled that there was inordinate and inexcusable delay by Persona and another losing consortium, Comcast, in bringing and prosecuting their actions and that, given this and other factors, the balance of justice required the cases should not be permitted to proceed.

That ruling would leave three leading Irish businessmen facing significant bills for legal costs.

The Persona consortium included a number of parties, including Motorola, at the time of the licence contest but it is now owned by Sigma Wireless Networks, a company owned in equal parts by Tony Boyle and Michael McGinley.

Likewise, Comcast formerly included a number of parties but is now understood to be owned by businessman Declan Ganley, whose company, Ganley International, was an original member of the consortium.

Mr Ganley could not be contacted last night.

Mr Ganley has also taken a case against Denis O'Brien arising out of the same matter and Mr O'Brien is now expected to seek to have this case thrown out of court and also to seek his costs.

The High Court heard that the two consortiums were making use of information uncovered by the Moriarty tribunal in the course of its inquiry into the licence competition.

Two weeks ago Mr O'Brien complained about this while giving evidence to the tribunal.

"Persona has openly stated before the High Court that it does not intend proceeding with its claim against the State until the tribunal issues its report," he said.

"I have to pose the question: is Persona using the machinery of the State to act as a stalking horse in a massive financial claim that it has taken against the State? If so, it is an extraordinary situation."

In the High Court, the State complained that Persona and Comcast were delaying proceedings so as to hear the outcome of the tribunal's inquiries.

Comcast argued that at the time of the licence competition decision in 1995 it believed the award of the licence to Esat was "wrongful" but it was "not in a position to know the detail of the manner, nature and extent of the breaches of the tender process".

It said it was hoping this matter would be "clarified" by the tribunal.

Persona said it had "real and serious misgivings" at the time of the licence competition outcome. Information that had come from the tribunal's inquiries into the competition had since assisted it in preparing its case.

However, Mr Justice Gilligan ruled that the tribunal's inquisitorial work was "not relevant and plays no role in the context of these proceedings".

He said Comcast and Persona had adopted "wait and see" approaches but this had caused inexcusable delay.

Mr Justice Gilligan said proceedings before a court of law are adversarial, whereas a tribunal involved "in essence an expression of opinion in relation to matters considered by the chairman of the tribunal".