Phone licence bidder seeks to amend claim against State and O’Brien

One of two unsuccessful bidders for the State's second mobile phone licence wants to amend the original statement of claim in its High Court action alleging bribery and corruption in the process.

Persona Digital Telephony and Sigma Wireless Networks, one of the runners-up in the mid-1990s competition, says it wants to set out further details in its claim to reflect the findings of the Moriarty Tribunal.

It sought an amendment in order to pursue a claim for damages against the State for, among other things, alleged fraud, conspiracy, and misfeasance in public office and, as against businessman Denis O’Brien, for alleged unjust enrichment and an account of profits.

The defendants - the Minister for Public Expenditure, the State, and Mr O’Brien - oppose the amendment, saying they would be prejudiced as a result of the delay by Persona in progressing its case, initiated in 2001.

Mr O'Brien's Esat won the licence and he was joined in the case as a defendant, rather than a third party, on his own application in 2014. Both he and the State deny Persona's claims.

Seeking leave from the court to amend the claim, Michael Collins SC, for Persona/Sigma, said his client did not want to radically change its original case, but merely to better particularise the claim.

The amendment sought was “as simple as it sounds” even though the case itself is complex, he said. When his client initiated its case in 2001, the Moriarty Tribunal, which ran over 13 years, was underway.

‘Benefits’

In 2011, the tribunal found the award of the licence was procured by corruption to the effect Mr O'Brien had interfered by giving the then minister for communications, Michael Lowry, "certain benefits" to procure interference with licence award, counsel said.

Persona/Sigma were in “pole position” and would have won were it not for this interference, counsel said.

A second disappointed bidder, Comcast, brought its own similar set of proceedings over the awarding of the licence, counsel said.

When Persona/Sigma issued its proceedings, “the detail of what had gone wrong” was not known but it was by 2011 when the Moriarty Tribunal report was published, counsel said.

A year later, the Supreme Court overturned a 2007 High Court decision striking out the Persona/Sigma case because of delay.

The Supreme Court ruled the defendants had not suffered any prejudice by the delay and the case should go on because it was of public importance. Persona/Sigma, which had obtained the assistance of a UK third party funder of litigation who gets a cut of any successful case, then applied to the High Court for a ruling on whether they were entitled to use that third party funding device.

The High Court ruled it was not and in 2017, the Supreme Court agreed but said legislation over third party funding should be addressed by the legislature, Mr Collins said. While this put Persona/Sigma, which does not have any funds, “in a difficult position”, by February last it was in a position to progress the case.

It sought to amend the original statement of claim but the defendants refused to permit the amendment and his client was now asking the court to decide the matter, counsel said.

The defendants' argument was that they would suffer prejudice because of delay had been squarely dealt with by the Supreme Court in its 2012 decision and that position had not changed when it came to the amendment of the claim, he said. The case resumes later this month before Ms Justice Teresa Pilkington.