Declan Ganley firms must be allowed litigate over Esat win, court told

Mr Justice Seán Ryan urged to refuse Denis O’Brien’s application for orders requiring the companies provide security for the costs of their action

Allegations of corruption in the process resulting in the State's second mobile phone licence being awarded to Esat Digifone are of such public importance that companies of businessman Declan Ganley must be allowed litigate them, the High Court has been told.

Brian O'Moore SC, for Mr Ganley and his companies, urged Mr Justice Seán Ryan to refuse billionaire businessman Denis O'Brien's application for orders requiring the companies provide security for the costs of their action against Mr O'Brien, the State, Esat Telecom and former minister for communications Michael Lowry arising from the 1996 licence award.

The Supreme Court, in judgments last year, refused the State's bid to halt this and another case over the award on grounds both cases involved very serious claims of corruption and should not be struck out "on a technicality", counsel said.

Having consistently stated his position to the Moriarty tribunal, Mr O’Brien should have found it easy to set out his defence to the specific claims made against him in this case and it was “an oddity” he had not done so, Mr O’Moore also argued.


Improper payments
While the statement of claim had alleged a series of improper payments to Mr Lowry, Mr O'Brien had not set out in a precise way his defence to those and certain other claims, counsel said. It was "simply astonishing" Mr O'Brien had chosen not to swear an affidavit stating such claims were wrong.

His side's complaint was, had the rules of the game been followed and then minister Lowry not intervened by "changing the rules", the Cellstar consortium in which Mr Ganley was involved would have won, he argued.

In closing arguments on behalf of Mr O'Brien, Darren Lehane said people would have had to be "living under a rock" not to realise that Mr O'Brien contested vigorously that he was in any way involved with corruption in this matter.

Counsel said Mr O’Brien had previously provided a defence denying the claims and had sworn an affidavit for this application stating he had a good defence. This unique case would take considerable time to hear, an amended statement of claim had been provided and his side would require to put in a substantially amended defence, counsel added.

Mr Lehane said the Cellstar consortium had finished sixth and last and there was no basis for its claim that were it not for the alleged corruption, it would have won the licence.

Counsel also rejected arguments of culpable delay on the part of Mr O’Brien in bringing his application for security for costs.

Having heard the sides, Mr Justice Ryan said he would reserve judgment and hoped to deliver his decision in the near future.

Mary Carolan

Mary Carolan

Mary Carolan is the Legal Affairs Correspondent of the Irish Times