Unsuccesful mobile phone bidder seeks to amend claim in action alleging corruption in process

Persona Digital Telephony and Sigma Wireless Networks, one of the runners-up in the mid-90s licence competition, says it wants to amend its case to further particularise its claim to reflect the findings of the Moriarty Tribunal.

The defendants, who are the Minister for Public Enterprise, the State, and businessman Denis O'Brien, oppose the amendment saying they would be prejudiced by delay of Persona in progressing its case which was initiated in 2001.

Mr O'Brien's Esat company won the licence and he was joined in the case as a defendant, rather than a third party, on the businessman's own application in 2014.

Both he and the State deny Persona's claims.

Seeking leave of 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 lasted 13 years, was underway.

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

Persona/Sigma were in "poll 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 they were 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 ruled that 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 and sought to amend the original statement of claim in which it now seeks damages against the State for, among other things, fraud, conspiracy, and misfeasance in public office and, as against Mr O'Brien, for unjust enrichment and an account of profits.

The defendants refused to permit the amendment and his client was now asking the court to decide the matter.

Mr Collins said the defendants' argument 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.

The case resumes later this month before Ms Justice Teresa Pilkington.