Denis O’Brien and State urge court to refuse Persona case amendments

A consortium suing over the awarding of the State's second mobile phone licence on grounds including alleged bribery and corruption should not be allowed amend its original statement of claim because that would be a "recipe for chaos", a lawyer for businessman Denis O'Brien has argued in the High Court.

A lawyer for the State, which also opposes the amendment application by Persona Digital Telephony and Sigma Wireless Networks, said public servants would be unfairly prejudiced if they had to respond to new claims relating to an award process some 22 years ago.

Mr O'Brien, the Minister for Public Enterprise and the State, are defendants in the Persona/Sigma actions over the awarding of the licence to Mr O'Brien's then Esat Digifone consortium in the mid-1990s. They deny claims made by Persona/Sigma which initiated its case in 2001.

Following a number of legal issues and challenges since then, the plaintiffs sought earlier this year to amend the statement of claim.

It was originally claimed, among other things, that the licence competition was conducted unfairly and that Esat won because of bribery of the then communications minister, now independent TD, Michael Lowry. The case was originally against the State, with Mr O'Brien and Mr Lowry as a notice parties.

In 2014, the High Court granted an application from Mr O’Brien to be added as a defendant in order to properly defend the implicit claims of bribery by his company.

Before that, in 2011, the Moriarty tribunal had published its report and made findings adverse to Mr Lowry and Mr O’Brien.

In 2012, the Supreme Court overturned a High Court ruling striking out Persona/Sigma’s action over delay. That meant the case could continue.

Persona/Sigma, which had got assistance of a UK third party litigation funder to continue its action, then asked the courts to clarify whether this type of funding was legal here. In 2017, the Supreme Court ruled it was not. Persona/Sigma had to resolve their continued funding and, following that, applied earlier this year to amend the statement of claim against the State and Mr O’Brien.

Against the State, damages were claimed for, among other things, fraud and causing damage by unlawful means. Against Mr O’Brien, the plaintiffs sought to advance a new claim of unjust enrichment and seeking account of profits.

John O’Donnell SC, for the State, said these were new allegations, which by the time they go to trial, will relate to a matter that is 25 years old. That will require public servants to, for instance, recall conversations that occurred that long ago about new claims there had been interference by Mr Lowry in the competition process, he said. That was extremely prejudicial to his clients and should not be permitted, he said.

Paul O’Higgins SC, for Mr O’Brien, said there had been a paucity of explanation by the plaintiffs for the delay in this case. As early as 2013, Mr O’Brien’s solicitor had asked the plaintiffs to outline the basis of their claims against him in explicit terms, counsel said. Allowing claims of unjust enrichment and account of profits to be advanced completely changes the case and would be a radical move in circumstances when four years had passed since the plaintiffs were asked to explicitly state their case against Mr O’Brien, he said.

To allow such amendments at this stage would be “a recipe for chaos”, he said.

Ms Justice Teresa Pilkington has reserved her decision on the amendment application.