Court puts back approval for Persona funding in mobile license case

Approval for “third party funding” for Persona/Sigma case over mobile license award has been put back until November

The case relates to the awarding of the second mobile phone license to Esat Digifone. Photographed at the time of the winning bid are the then Minister for Communications, Mr Michael Lowry (centre) with Kare Gustad (left) chief executive of Telenor Mobile and Mr Denis O’Brien, chairman of Esat Digifone. Photograph: Eric Luke

An application for approval of an arrangement whereby a British company is funding litigation against the State and businessman Denis O’Brien has been put back to November.

Persona Digital Telephony and Sigma Wireless Networks were runners-up in the State's second mobile phone license competition, which was awarded to Mr O'Brien's Esat Digifone consortium in 1996.

They are suing the State over claims the process was conducted unfairly and that Esat allegedly won the competition by bribing the then Minister for Communications, Michael Lowry - which is denied.

A British based "third-party funder", Harbour Litigation Funding, will get a share of the proceeds if Persona and Sigma are successful and the plaintiffs "quite properly" have asked the High Court to approve of this arrangement in July.


However, lawyers for the State and Denis O’Brien successfully sought an adjournment of the July hearing on Friday, which will now be heard on November 11th.

It is the first time that the issue of "third party funding" has come directly before the courts of Ireland, Ms Justice Aileen Donnelly said in her judgment directing disclosure of the agreement with certain redactions earlier this week.

Putting the matter back to November, Ms Justice Donnelly said the one issue that caused her to hesitate in insisting that the matter proceed in July was that the document provided to the defendants referred to other documents.

Opposing the adjournment application for the plaintiffs, Nathy Dunleavy BL, said the “legal costs agreement” was simply the budget and would be covered by the redaction principle outlined by the court.

Mr Dunleavy said there was no “after the event insurance policy” within the agreement.

The “security agreement” simply related to a charge over the plaintiff companies, Mr Dunleavy said, however he was unable to categorically state whether it would be handed over to the defendants.

In those circumstances, Ms Justice Donnelly said it was appropriate to put the matter back to a date in November.

It was three years since the Supreme Court had allowed the case to proceed despite objections on the basis of delay, Ms Justice Donnelly said, and it was important that matters proceed with all due haste.

She said it was probably “somewhat optimistic” that matters would proceed in July given the issues that had been raised.

Applying for an adjournment, Conleth Bradley SC, for the State, said his side wanted to see what other documentation was in existence.

Counsel for Mr O'Brien, Jim O'Callaghan SC, applied for an adjournment for four reasons.

Firstly, Mr O’Callaghan said his side only got the funding agreement the previous evening. He said parts of it were redacted “not in accordance” with the directions of the court and his side required explanations as to why certain parts were redacted.

Secondly, Mr O’Callaghan said he wanted to put in a replying affidavit to deal with claims that the plaintiffs were impecunious and couldn’t bring these proceedings without the third party funder.

“We wish to challenge that,” Mr O’Callaghan said as well as the claim the plaintiffs became impecunious “because of my client’s actions”.

Mr O’Callaghan told Ms Justice Donnelly that her judgment was going to be very significant and it required detailed submissions.

Finally, Mr O’Callaghan said his side had succeeded - “we got the funding agreement” - but there were certain matters such as the funder’s remuneration and “we may wish to go somewhere else in respect of that”.

Pushing this thing on for July 21th and 22th was imposing too tight a timeline, he said.

The matter was put in for mention on October 7th while the application for approval was fixed for November 11th.

The case was brought against the Minister for Enterprise and the State. Mr O’Brien secured an order allowing him to be joined in the proceedings last year while Mr Lowry, now an Independent TD, is a third party to the case.

The plaintiffs claim damages for misfeasance in public office, breach of duty, including statutory duty, breach of contract, breach of legitimate expectations, breach of Constitutional rights, breach of rights under EU law and a declaration that the European Communities (Mobiles and Personal Communications) Regulations 1996 contravene EU law.

The claims are denied.